Patterico's Pontifications


Another Sheep Joins the Herd of Legal Commentators Loving That Bragg Indictment

Filed under: General — Patterico @ 6:13 pm

I posted this morning about my recent prediction that the sheep in this country who bleated their disapproval of the Trump New York indictment would change their tune. The latest evidence comes from Mark Joseph Stern, in his piece I Was a Skeptic of the Stormy Daniels Prosecution. I Was Wrong. Stern is a commentator for whom I have no respect (I am calling him a sheep, remember), so don’t think my citation of his piece signals approval of him or anything he said. But his conversion further portends the direction of the rest of the crowd of mindless woolybacks.

When Manhattan District Attorney Alvin Bragg brought criminal charges against Donald Trump in 2023, I was highly skeptical of his decision. It seemed at the time that other indictments would soon follow, and that they would rest on far firmer legal ground than this one. Over the past year, though, I have realized that my initial doubts about Bragg’s indictment were misplaced.

. . . .

Last year, I was uncertain whether this scheme, while sordid, rose to the level of a felony offense. I am now convinced that, if proved that he took these actions, it surely does. The falsification of business records is, by itself, a misdemeanor under New York law, but it’s a felony when it’s done with the “intent to commit another crime or to aid or conceal the commission thereof.” In his indictment, Bragg claims that Trump lied about the payments with the intent to violate election law, which is what elevates the crime to a felony.

As an aside, I would love to challenge Stern to point to me exactly where, in the indictment he linked, he finds the claim that Trump lied about the payments with the intent to violate election law. I do not find that claim in the indictment. Do you? And, in fact, there are other possible underlying crimes Bragg has cited, like tax fraud. But please, let’s allow the bleating to continue:

Initially, I was suspicious of this theory; what election law, exactly, was the former president attempting to violate? The district attorney’s initial statement of facts was hazy on this crucial point, raising the possibility that he couldn’t tie the underlying fraud to a state or federal statute.

Turns out he could. Bragg has argued, convincingly, that the former president intended to violate at least two election laws—one state, one federal. First, Bragg asserted that Trump and Cohen ran afoul of the Federal Election Campaign Act by making unlawful campaign contributions (in the form of a payoff) at the direction of a candidate (that is, Trump). Cohen already pleaded guilty for this very act in federal court, so it is hardly a stretch to accuse Trump of intending to break the law by participating in the crime. Second, Bragg argued that Trump ran afoul of a New York election law that forbids any conspiracy “to promote or prevent the election of any person to a public office by unlawful means.” The district attorney claimed that Trump intended to violate this statute by committing fraud in order to secure his own victory in 2016.

There is nothing especially creative about these theories; they are not an example of prosecutors stretching the law to its breaking point so it can fit over the facts of a questionable case. The application of both federal and state election codes, and their interplay with the underlying violation of New York’s business records law, is straightforward.

Stern has completely missed the theory about tax fraud being another potential underlying crime. That’s OK. You guys aren’t reading Stern for insight into the Bragg prosecution. If you want that, you’d read my Substack, where I covered the tax fraud theory in detail.

On the eve of the trial, it is now apparent that the prosecutors are on firm legal ground. They have effectively neutralized Trump’s plan to kill the case before it can be tried on the facts.

Yeah, well, it was apparently to many of us long before the eve of trial. But the herd had not yet moved in the direction of praising the New York case. Now it is starting to move in that direction. So it’s safe for sheep like Stern to move with the crowd.

I just hope New York prosecutors have more than Michael Cohen, because otherwise these sheep are headed for the mutton house.

But I think the prosecutors have it. I’m not worried. And if I become worried, you’ll be the first to know.

Because I’m not a sheep.

Legal Expert: Gee, Maybe This New York Trump Prosecution Isn’t Such a Hack Job After All

Filed under: General — Patterico @ 6:52 am

Jury selection in Donald Trump’s New York prosecution for felony falsification of business records begins today. Regular readers know that, while I have acknowledged that this case is the least consequential of the four criminal cases Trump faces, I believe the case is legally sound. I have written many lengthy pieces on my Substack (and one at The Dispatch) defending the prosecution, which — if the prosecutors have more than Michael Cohen, and I think they do — may turn out to be a substantial case indeed.

I said in February: “it is also a real possibility that about a month from now, the Conventional Wisdom will start to turn. And that people will realize: hey, this actually is a serious case after all.”

OK, it took a couple of months (I thought the trial was going to start in March) but I think it’s starting to happen. As an example, I present to you the case of one Jed Shugerman, who took to the pages of the New York Times last year to declare the case a “legal embarrassment” but now is backing away from that opinion. Shugerman was interviewed for a piece that came out in the New Yorker yesterday and his comments are enlightening:

Last year, after the indictment was announced, a Boston University law professor named Jed Shugerman wrote a blunt Op-Ed in the Times titled “The Trump Indictment Is a Legal Embarrassment.” Shugerman is no Trump fan; he just had questions about the strength of the case. “Even if it survives a challenge that could reach the Supreme Court, a trial would most likely not start until at least mid-2024, possibly even after the 2024 election,” he wrote.

Part of this skepticism had to do with the novel way in which Bragg brought the charges against Trump. In New York, falsifying a business record is a misdemeanor. The crime can be bumped up to felony status, however, if it is done to aid and conceal a so-called underlying crime. In the Trump case, the underlying crimes referred to in the charging documents include violations of federal election law, to which Michael Cohen pleaded guilty to in 2018. Trump’s case is historic, not only because it is the first of its kind involving a former President but because it involves an unusual legal maneuver: reaching to federal law to bolster the state charges of falsifying business records. “Stretching jurisdiction,” Shugerman called it. And yet the law professor acknowledges now that he underestimated the case. “I still think people, well-intentioned people, have graded this case on a curve,” he said. But he’d been persuaded by arguments that he’d heard from colleagues and friends. “I’m now more willing to say that it’s fair for the prosecution to go forward, and for Trump to have his day in appellate court,” he said. He, too, thinks a conviction is likely.

Note the part I have bolded. This is a perfect example of the herd mentality that I alluded to in February. It’s not entirely clear whether he is saying he was persuaded by others last year, or now. My guess is: both. But either way, he’s going with the herd, and his new opinion suggests that the herd is changing its mind.

For some time, I have been in a distinct minority of legal commentators saying I thought this case had substance. But the herd said otherwise. Shugerman, in bleating his friends’ and colleagues’ opinion on the pages of the New York Times, made much of the argument that the case was preempted by federal law. But if you’re a reader of my Substack, you know that a federal judge made short work of that argument (about which I had been publicly skeptical) in an opinion that Donald Trump never even bothered to appeal. The trial judge in New York reaffirmed that he agreed recently, as I explained in another Substack piece. With developments like these, and with the trial judge throwing out just about every argument that the herd relied upon last year, the herd is beginning to sing a different tune — and Shugerman is right there with them.

I predict you’ll be seeing a lot more of this, as the herd begins to learn that PREEMPTION ARGUMENT BAAAAD, BRAGG CASE GOOD.

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