Constitutional Vanguard: Legal Commentators (Looking at You, Sarah Isgur): Please Learn the Basic Theories of the Bragg Prosecution
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.
Having gone to all this trouble to correct errors, I’d bet the house that I made at least one error in this piece. It’s just the way it goes.
It’s a race to find it. My bet’s on Kevin M. He’s good at finding mistakes. I should run these things by him before I publish!
Patterico (905824) — 3/11/2024 @ 7:24 amBy the way: notice what every single error I discuss in the piece — and I discuss quite a few — has in common: the errors favor a pro-Trump view of a process to hold Trump accountable, while the correction of the error makes the process look more fair and reasonable.
Something to keep in mind when you’re constantly suggesting Trump is the victim of lawfare, citing Thomas More about cutting down all the laws, and saying Trump is not above the law but he is not below it. Correct all these errors, re-opine based on the correct facts, and things look a lot different.
Bragg is not proceeding entirely on a theory declined by the feds. Bragg did not act improperly to the extent he did seek to rely on a federal law. The Maine Secretary of State did not make her decision without process, a standard, a hearing, or witness testimony. DOJ did not violate its 60-day rule by seeking to set a trial near the election.
Garbage in, garbage out. Correct facts in, better opinions out.
Patterico (9adca6) — 3/11/2024 @ 7:54 amIf a Substack post is published in the forest and nobody notices, was it really published?
Patterico (7d3c50) — 3/11/2024 @ 1:28 pmI read it and it is excellent.
I had an annual Dispatch membership that I canceled because of Sarah Isgur. I don’t pay money to be intentionally misinformed and, at this point, that is how I feel about what she writes and says at The Dispatch.
This is how The Dispatch describes itself in the About US section (emphasis supplied):
I believed The Dispatch had a commitment to facts until this Sarah Isgur saga, but now I have no confidence in what she says about the law. I still like other writers there but I can’t ignore such a glaring weakness in The Dispatch’s content any longer.
DRJ (c673a9) — 3/11/2024 @ 2:09 pmBy the way, this isn’t about Trump to me. It is hard for most people, including lawyers, to understand complex legal issues. No one can perfectly analyze legal issues but getting the facts wrong over and over (even with Patterico patiently correcting her) is unacceptable. It misleads a lot of people and gets repeated as reliable and true.
DRJ (c673a9) — 3/11/2024 @ 2:22 pmPatterico, I’m wondering if you regret your lifetime subscription to The Dispatch.
norcal (dc2dbc) — 3/11/2024 @ 4:42 pmNot at all. Nick Catoggio is the best writer on the Web and I love the analysis of various writers there. I intensely admire Steve Hayes and Jonah Goldberg. I adore Kevin Williamson and love Scott Lincicome. Advisory Opinions is a great legal podcast, which seems to become less reliable only when Trump cases are discussed — and even then, David French often provides the pushback I crave. I think it’s the best site on the Internet. But I don’t seem to be getting through when it comes to these Trump cases. I leave comments; I write Substack posts, I tag people on Twitter . . . it seems to have little effect. They did highlight one of my arguments in a podcast last year, but now they seem to have forgotten the point I made that they had discussed. It’s weird.
Patterico (997b4d) — 3/11/2024 @ 5:36 pmWell, DRJ, it’s very heartening to hear that. It’s weird when you work really hard on something and it seems to land with a thud.
Do you think there are any errors in my analysis?
I would have thought the explication of Bragg’s actual theories might be interesting to people, given that the trial is coming up so soon. I wonder why people don’t seem to care.
Patterico (997b4d) — 3/11/2024 @ 5:38 pmI echo DRJ, but IANAL, Patterico.
DRJ, there’s a whole stable of good smart writers at The Dispatch. If there’s one that falls short, I wouldn’t make that a dealbreaker.
Paul Montagu (d52d7d) — 3/11/2024 @ 6:20 pmMy rule when characterizing reporting, commentary, and legal process is to interrogate the descriptions and conclusions I reach which confirm my biases more aggressively than those that contradict them. I don’t always succeed — biases are insidious — but that’s the goal.* Likewise, I trust the reports of people who also practice this rule more than of those who don’t.
Sarah too often falls in the latter category. To be fair, on the spectrum of public punditry she’s much better than most, but that’s a low bar. On a site like The Dispatch, which I’d say owes much of its existence to the principled departure of its contributors from former alliances and partisan identities, she too often sticks out for her motivated reasoning.
That’s not enough for me to walk away from the site altogether, especially with Patterico around to keep Sarah honest. Query why Jonah hasn’t invited Pat into the fold yet. I’d think his informed, respectful critiques would be very much on brand for TD as self-criticism. And that’s of course in addition to the valuable commentary we would add apart from fisking Sarah. Anyway, with all due respect to DRJ, whose opinion I respect highly, I think there’s more of value at The Dispatch than there is that’s problematic, even if Sarah does lets her biases run away with her sometimes. Abandoning the site seems like throwing the baby out with the bathwater.
(*To be clear, I have no objection to expressing opinions per se that are rife with bias. I do it all the time. That’s what opinionating is. I’m only talking about reporting facts, and characterizing the words, reports, opinions and legal filings and decisions of others. IMO if you’re not making a bona fide effort to remove your biases from those characterizations, you’re unreliable, and it’s probably obvious to most informed people who don’t already agree with you.)
I see that since I started writing this, got called away, and am now about to post it, Patterico and Paul made some of the same points. Apologies for the duplication.
lurker (cd7cd4) — 3/11/2024 @ 6:41 pmFirst, Patterico, I appreciate that you went through the details of the Bragg theories. I had not seen that elsewhere and it wasvery helpful. I had a sense of his theories but what matters in law is the details, and now I understand it better — probably not as well as you, but better.
Srcomd, Paul, I understand your point. I will mainly miss Kevin Williamson because he is my favorite professional writer. But I am drawn to legal topics more than culture and politics. (Law blogging is what first attracted me to Patterico’s blog.) I am not going to waste my time or money on unreliable information.
DRJ (4914ae) — 3/11/2024 @ 6:46 pm*And that’s of course in addition to the valuable commentary he would add* (Obviously I wouldn’t be adding anything. 🙂 )
lurker (cd7cd4) — 3/11/2024 @ 6:47 pmAnd I am certainly not arguing that anyone else should consider leaving. There are great writers there, and I admire that most left other employment because of principles. But, for now, I am not impressed with their legal product.
DRJ (4914ae) — 3/11/2024 @ 6:54 pmI agree they should ask Patterico to guest write or do podcasts on topics like this.
DRJ (4914ae) — 3/11/2024 @ 6:57 pmIn rereading my comment 4, I meant to say “I don’t pay money to be unintentionally misinformed …”
DRJ (4914ae) — 3/12/2024 @ 2:35 amI too vote for Patterico joining The Dispatch. I am ambivalent on Isgur. I like my legal analysis tempered by realism. I confess to not always listening to her analysis. I miss French writing at The Dispatch. I certainly don’t live or die on opinions. We will see Bragg’s arguments and evidence soon enough. Handicapping it too much before hand isn’t that useful to me.
AJ_Liberty (f41c78) — 3/12/2024 @ 5:37 amIt’s a race to find it. My bet’s on Kevin M. He’s good at finding mistakes. I should run these things by him before I publish!
High praise. I think. But I’ve been on the road, so probably not.
Kevin M (de3773) — 3/12/2024 @ 9:10 amOnly the second part is inaccurate and it is something that is lost in the secondary sources Isgur probably consulted. It’s probably also the same underlying conduct. I’d like to see more detail.
he premise is that it should have been routed through the campaign or that Michael Cohen should not have used his own money because for him it was a campaign contribution coordinated with the candidate – except that it was so utterly illogical for Michael Cohen to do it even if he had been promised re-imbursement by Donald Trump for which there is evidence that he was not and that Trump had declined to pay the money and that Trump felt no necessity to hide it. And why didn’t Michael Cohen record the promise, if it took place, to protect himself??
Unlike the case with John Edwards, it was the candidate who was the rich person here.
It is so illogical, that helping Trump get elected could not have been Michael Cohen’s motive, but it must have something to do with covering up (from Donald Trump?) his own involvement in creating the 2006 trysts.
Sammy Finkelman (1d215a) — 3/12/2024 @ 3:22 pmA question for our gracious host (and feel free to correct any assumptions):
Isgur’s argument (and the law’s apparent rules) are that you can’t promote the misdemeanor to a felony unless another crime is attached. You (arguing for Bragg) then discuss 2 NY laws Trump is alleged to have violated, which would allow for the charge to attain felony status. (The NY tax law 17-152 and NY election law 1801a3 & 1802)
However, the laws you mentioned in both Scenario #2 and 3 are both misdemeanors themselves. How would they qualify the original charge to bump up to felony status?
SaveFarris (942f52) — 3/19/2024 @ 2:52 pm