Patterico's Pontifications

3/11/2024

Constitutional Vanguard: Legal Commentators (Looking at You, Sarah Isgur): Please Learn the Basic Theories of the Bragg Prosecution

Filed under: General — Patterico @ 7:22 am



My latest newsletter identifies two errors by Sarah Isgur in analyzing the Bragg prosecution that starts in two weeks. Excerpt from the free portion:

In the March 1, 2024 Dispatch Podcast, Isgur says of the falsification of records felony that it becomes a felony only when you can “attach” another crime to it (i.e. provide a crime that was perpetrated or concealed by the falsification of business records), and “the only other crime they could attach to it is a federal crime that the Department of Justice decided not to prosecute Trump for.”

As I will explain in detail below, that appears to me to be inaccurate. There are at least two other potential crimes—both state crimes—that Bragg has stated in writing that he intends to use as underlying crimes for the falsification of records charge. These include 1) a violation of New York tax fraud laws, and 2) a violation of New York state election law. The trial judge has ruled that these are both viable theories that Bragg’s prosecutors can argue to the jury.

In addition, even when it comes to the federal campaign finance charge that Isgur is referencing in the quote above, it’s not true that Bragg is necessarily relying on a charge DOJ declined to bring. Because—as I have said many times before, and as Isgur has previously acknowledged—Bragg could be relying on the campaign finance violation by Michael Cohen.

Second, Isgur says that the reason the Department of Justice did not charge Donald Trump with a federal campaign finance violation “is because it’s not a federal crime.” I don’t believe that could possibly be the reason DOJ did not charge Trump—because DOJ did charge Cohen with that crime. And Cohen pled to it. Now, reasonable people can disagree about whether the federal campaign charge that Cohen pled to is really a crime, and the importance we should attach to Cohen’s guilty plea. But however you come down on those issues, we all should be able to agree that DOJ believed that the crime they charged Cohen with . . . was a crime. If DOJ didn’t think it was a crime, they wouldn’t have charged Cohen. So it appears incorrect for Isgur to say that the reason DOJ didn’t charge Trump is because “it’s not a federal crime.”

I hope Isgur issues clear corrections on these two apparent errors—or explains why they are not errors, despite all appearances.

In the portion for paid subscribers, I discuss the ethics of making corrections, noting that Isgur has sometimes issued cheerful and forthright corrections, but elsewhere has failed to make corrections in every relevant venue, or has issued a stealth sub silentio correction which provides the accurate information but does not admit error. As for the cheerful and forthright corrections, I said this:

By the way, I think Isgur beats herself up a little too much when making these forthright corrections. As I have said before, everyone gets stuff wrong. And when you’re talking all the time for a living, as Isgur does, the pitfalls only grow. I know Isgur cares deeply about getting things right, and it clearly upsets her when she realizes she hasn’t. But, speaking myself as someone who has had to issue countless corrections over the decades, may I suggest that there’s no need for self-flagellation. Again: it happens. To everybody. On this Substack, I’ve even caught Justice Neil Gorsuch making a substantive mistake in one of his opinions. And of course, when the media picked up on the error, some outlets incorrectly described the nature of the error.

To err is human. To correct an error is divine. (Gorsuch, by the way, never corrected his error.)

Here’s hoping this newsletter results in a more accurate analysis of the Bragg prosecution. It’s important.

Read the newsletter here. Subscribe here.


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