Patterico's Pontifications

4/15/2024

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.

171 Responses to “Another Sheep Joins the Herd of Legal Commentators Loving That Bragg Indictment”

  1. BRAGG CASE GOOD, CRITICS BAAAAAAAD

    Patterico (63789d)

  2. To quote from an occasional Internet blogger:

    Unsure whether the underlying crime can be a federal law? Not only has the judge ruled it can be, but Trump is not allowed to argue otherwise to the jury.

    Bowled over by Bradley Smith’s opinion that Trump’s actions are not a FECA violation? That’s nice. Smith (who is on Trump’s witness list as an expert) may not offer that opinion to the jury — and if he does anyway, in contravention of the judge’s order, the judge has threatened to strike his testimony.

    Wowed by the fact that DOJ or the FEC never went after Trump for FECA? Say that on your podcast to your heart’s content. But Trump may not argue that to the jury. As the judge has observed, there could be many reasons for those decisions having nothing to do with Trump’s guilt or innocence.

    One by one, the judge has taken most if not all of Isgur’s arguments and tossed them aside.

    This tilting of the playing flied may have had something to do with these changed opinions. Now what the fix is in, they do not want to be found on the wrong side.

    Kevin M (a9545f)

  3. “The fix is in” LOL

    The judge has made some predictable unfavorable rulings.

    Patterico (c1e977)

  4. The only legal expert in a courtroom, in the legal sense of the term, that is a witness who is qualified to render a legal opinion, is the judge.

    nk (4542d0)

  5. To quote from an occasional Internet blogger

    Sorry, That was a poor construction and I apologize.

    Kevin M (a9545f)

  6. The only legal expert in a courtroom, in the legal sense of the term, that is a witness who is qualified to render a legal opinion, is the judge.

    The ruling against the former FEC chair offering an expert opinion on whether the payment was a campaign contribution is NOT a trivial ruling as it sides with a untested theory of the law and may compel the verdict from the “fact finders” as a direct consequence.

    The judge may be the expert in his courtroom, by means of holding the gavel, but he treads on an area where appellate courts avoid (see “Chevron”). I would hope that Bradly Smith has the balls to get held in contempt.

    Sure the appeal will be obvious, and I’d bet on Trump, but the show trial will be over. I’m sure that Judge Hoffman felt the same way.

    Kevin M (a9545f)

  7. argh

    The only legal expert in a courtroom, in the legal sense of the term, that is a witness who is qualified to render a legal opinion, is the judge.

    The ruling against the former FEC chair offering an expert opinion on whether the payment was a campaign contribution is NOT a trivial ruling as it sides with a untested theory of the law and may compel the verdict from the “fact finders” as a direct consequence.

    The judge may be the expert in his courtroom, by means of holding the gavel, but he treads on an area where appellate courts avoid (see “Chevron”). I would hope that Bradly Smith has the balls to get held in contempt.

    Sure the appeal will be obvious, and I’d bet on Trump, but the show trial will be over. I’m sure that Judge Hoffman felt the same way.

    Kevin M (a9545f)

  8. I would hope that Bradly Smith has the balls to get held in contempt.

    Really? It’s clearly improper testimony and the judge is absolutely correct to prohibit it. This is not a close call. So you want him to violate the judge’s legal order, for some reason? Why on earth would you suggest that’s a good idea?

    Patterico (c1e977)

  9. The ruling against the former FEC chair offering an expert opinion on whether the payment was a campaign contribution is NOT a trivial ruling as it sides with a untested theory of the law and may compel the verdict from the “fact finders” as a direct consequence.

    The case could be overturned as an appellate court might side with Smith’s view when it comes to instructional matters or sufficiency of the evidence matters. But no competent judge on the planet would let an expert opine on the ultimate issue for the jury. Trust me, Kevin, this is in my wheelhouse and it’s not close.

    Patterico (c1e977)

  10. I understand that the JURY is not competent to make this call. The judge has to rule. But the could just as easily not have sided with the DA’s ambitious reading of the law. As you say, it becomes the ultimate issue in the case and he could have demanded that the DA find another of the (was it 4?) grounds for his felony charge.

    The question here was “why did all those people change their minds” and it seems to be less on the facts of the case than the tilt of the playing field.

    Kevin M (a9545f)

  11. So you want him to violate the judge’s legal order, for some reason? Why on earth would you suggest that’s a good idea?

    It has nothing to do with the case and everything to do with disrupting the show trial.

    Kevin M (a9545f)

  12. It has nothing to do with the case and everything to do with disrupting the show trial.

    Wow. Rule of law be hanged.

    Patterico (63789d)

  13. I don’t see how, just because you happen to disagree with a prosecution, you can in good conscience advocate for actors to disregard legally correct rulings. That’s how Trump does things. It’s not how the rest of us do things. Don’t be like him.

    Patterico (a5444c)

  14. Litigants and amici curiae can present legal theories to the court through legal memoranda, briefs, and argument. But it is to the court as the final arbiter of the law, and not to the jury whose sole power is to weigh the sufficiency and credibility of the evidence.

    nk (4542d0)

  15. Wow. Rule of law be hanged.

    This trial is not about the rule of law.

    Kevin M (a9545f)

  16. I don’t see how, just because you view a candidate as beyond the pale, that you can countenance a political show trial in an attempt to damage his electoral chances.

    Kevin M (a9545f)

  17. “Show trial” and “tilt of the playing field” is the language of Trump when you can’t argue the facts or law.

    Rip Murdock (d2a2a8)

  18. Here is my very bottom line:

    Up until now, no former president has been charged with a crime. Many have committed such, not just Nixon. But we have, as a people, not gone after them for fear that doing so would open a door.

    With Trump we have changed our minds after Jan 6th. But I ask you, would the Stormy Daniels hush money case be the one you would use as the bar to clear?

    It was the first one charged and the first one to go to trial. Is that the standard for prosecuting presidents that you think most wise?

    Or is it just rank politics masquerading as righteousness?

    Kevin M (a9545f)

  19. ………. But I ask you, would the Stormy Daniels hush money case be the one you would use as the bar to clear?

    It was the first one charged and the first one to go to trial. Is that the standard for prosecuting presidents that you think most wise?

    Or is it just rank politics masquerading as righteousness?

    Kevin M (a9545f) — 4/16/2024 @ 9:00 am

    If it weren’t Trump’s incessant delaying tactics, favorable judges, and court rulings, the federal cases could be underway by now. It’s just fate that People of the State of New York v. Donald Trump is the first to go to trial.

    Rip Murdock (d2a2a8)

  20. Way to ignore the point, Rip.

    Kevin M (a9545f)

  21. Kevin,

    As I understand your point, this is an unfair show trial. I don’t get that. A show trial — the term originated in Russia in 1928 — is a sham trial based on bogus charges, with no evidence, and guilt is assured. This is not a sham. This is a real case being tried according to the NY rules that govern everyone there.

    If you don’t like this case, articulate why. Hyperbole isn’t helpful.

    DRJ (b2d376)

  22. No, Kevin is right. Bragg was the first charge Trump with a crime. And it was past time somebody had the gumption to.

    So it’s a jab to the nose and not a jawbreaker. Fani has not done all that well with her flurry of body taps. And how long will Smith be waiting for his one-two?

    You go to court with the crimes you have, not the crimes you want or wish to have at a later time.

    nk (4542d0)

  23. I have. See #18 for one. As for “show trial”, you articulate one extreme meaning of the term, but like most things it has a range of meanings. A partisan prosecution promoted primarily for its propaganda and political value is apt, even if there is evidence behind the charge.

    Or do you argue that these charges would have been brought against a former Democrat president? Do you argue that this should be the bar for prosecuting future former presidents?

    Kevin M (a9545f)

  24. Compare this to the Florida and Georgia charges where there is significant and clearly felonious criminality. Those are clearly things that I would hope would be brought against any former president (and perhaps more so in GA than a random citizen). The Stormy Daniels thing? Bill Clinton would still be in prison.

    Kevin M (a9545f)

  25. Imagine the outrage if Bill Clinton had been charged in Arkansas in 2001 for obstruction and witness intimidation in the Paula Jones case. While that would have been more justified than the current NY case, it would still have been seen as political retribution. Not to mention a poor choice of where to draw the line.

    Kevin M (a9545f)

  26. You go to court with the crimes you have, not the crimes you want or wish to have at a later time.

    Well, it depends on your goal. If “Getting Trump” is your goal, rather than making a stand against presidential criminality, then you’re right.

    Ends and means.

    Kevin M (a9545f)

  27. The premise that some people should be immune to prosecution for criminal activity simply because of the risk of political backlash is *incredibly* corrosive to the fabric of the Republic.

    aphrael (1797ab)

  28. If “Getting Trump” is your goal, rather than making a stand against presidential criminality, then you’re right.

    Kevin M (a9545f) — 4/16/2024 @ 11:15 am

    I think those are one and the same.

    norcal (fdba28)

  29. Way to ignore the point, Rip.

    Kevin M (a9545f) — 4/16/2024 @ 9:34 am

    It’s called reality.

    Rip Murdock (d2a2a8)

  30. John Edwards was taken to trial for hush money payments and campaign finance violations. He was cleared of one count and had a hung jury on the remaining 5 counts. But these are state charges and encompass a conspiracy to quash more than just the Daniels affair.

    https://abcnews.go.com/Politics/trump-hush-money-case-compared-democrat-john-edwards/story?id=98053273

    I’m patient enough to wait for the evidence and see it tested. If Trump is cleared, then good for him. The reality is that it’s not like Bragg demanded to go first or that Smith somehow ran out the clock. I take nk’s comment that this is the case that made it first through Trump’s delay strategy. It is what it is. I’m not sure that the law should evaluate the political consequences of this prosecution. I’ve still not seen Patterico’s arguments and reasoned legal judgment upended.

    AJ_Liberty (5f05c3)

  31. The premise that some people should be immune to prosecution for criminal activity simply because of the risk of political backlash is *incredibly* corrosive to the fabric of the Republic.

    And I did not say that. What I said is that they should not be charged as the PRODUCT of political backlash.

    Kevin M (a9545f)

  32. @27

    The premise that some people should be immune to prosecution for criminal activity simply because of the risk of political backlash is *incredibly* corrosive to the fabric of the Republic.

    aphrael (1797ab) — 4/16/2024 @ 12:57 pm

    I’m just here for the new standards.

    Anytime a politician pays for something that remotely could impact his/her campaign… the books better reflect what was spent.

    whembly (86df54)

  33. Anytime a politician pays for something that remotely could impact his/her campaign… the books better reflect what was spent.

    whembly (86df54) — 4/16/2024 @ 2:20 pm

    There is no new standard, business records always reflect accurate transactions.

    Rip Murdock (d2a2a8)

  34. Correction:

    There is no new standard, business records should always reflect accurate transactions, which in this case they apparently do not.

    Rip Murdock (d2a2a8) — 4/16/2024 @ 2:48 pm

    Rip Murdock (d2a2a8)

  35. Coming up with novel ways to charge your political adversaries with crimes isn’t justice, it’s Lavrenty Beria’s Soviet Union.

    NJRob (968acd)

  36. Anytime a politician pays for something that remotely could impact his/her campaign… the books better reflect what was spent.

    Does that mean Biden should be arrested for every time he failed to report his Adderal prescriptions to the FEC? Because under your definition, each of those instances would be a violation.

    SaveFarris (6139a3)

  37. Heh! So much for Kevin M’s concern that this case will cause otherwise sane people to “pull the lever for Trump”. Not if they take a moment to reflect who else is pulling it.

    nk (edaea7)

  38. Heh! So much for Kevin M’s concern that this case will cause otherwise sane people to “pull the lever for Trump”. Not if they take a moment to reflect who else is pulling it.

    Your point is far move valid than this election. Schrödinger’s voting booth.

    Kevin M (a9545f)

  39. Lessee? Who do I hate more?

    Kevin M (a9545f)

  40. I’ll go with the judgment of our esteemed host on the legitimacy of this case.

    And no, I don’t think it will be open season for criminal prosecutions against future Presidents, unless they share Trump’s toxic combination of megalomania and criminality, in which case I say “play stupid games, win stupid prizes”.

    norcal (fdba28)

  41. Baaaaaaa!

    Rip Murdock (d2a2a8)

  42. It isn’t unusual for prosecutors to make an extra effort to convict habitual criminals. Nor, in my opinion, is it wrong.

    Jim Miller (534f50)

  43. It isn’t unusual for prosecutors to make an extra effort to convict habitual criminals.

    It is for Bragg.

    Kevin M (a9545f)

  44. Coming up with novel ways to charge your political adversaries with crimes isn’t justice, it’s Lavrenty Beria’s Soviet Union.

    Oh my! That is dramatic!

    I would be careful about saying something like that in front of someone who actually suffered in the Soviet Union. Such a person might take offense at having the evil of the USSR trivialized in such an offensive and fundamentally ignorant manner.

    The falsification of business records statute is so “novel” that it has been charged over 11,000 in New York state in the ten-year period from 2014 to 2023, and over 400 times in Manhattan. And if someone commits a felony crime they should generally be prosecuted, as you would agree if the person committing the crime were a Democrat.

    As I pointed out in a recent piece, Joe Biden’s utter lack of control over any of this is patent, as evidenced by his private whining about how long it has taken for these independent agencies to do their jobs. (He’s right, by the way, but wrong to say so out loud, even in private.)

    Patterico (c8a2b8)

  45. Bragg is a Gascon clone. If he were DA in LA County we’d be hearing in this very blog how awful he is and that he should be recalled at the earliest convenience, by the same commenters here now cheering him. His actions are being defended because 1) the district he’s screwing up is somewhere else, and 2) he’s prosecuting Trump. That’s it. The hypocrisy and disingenuousness by some here is off the charts. The notion that he would prosecute a Democrat who did what Trump is on trial for is not believed by anyone here — nobody — but some will pretend to believe it for heaven only knows what reason.

    lloyd (5e02be)

  46. The premise that some people should be immune to prosecution for criminal activity simply because of the risk of political backlash is *incredibly* corrosive to the fabric of the Republic.

    Thank you for the dose of sanity in this sea of partisanship and emotional display.

    Patterico (c8a2b8)

  47. Thank you for the dose of sanity in this sea of partisanship and emotional display.

    There’s a lot of partisanship indeed.

    Kevin M (a9545f)

  48. The hypocrisy and disingenuousness by some here is off the charts.

    While you are a model of rising above such terrible traits.

    I hold no brief for Bragg. I praise, not him, but this prosecution, which I believe to be significant. And I would say the same if the defendant were a Democrat, and I have a record to show that I call out criminals on all sides.

    I strongly doubt you have any similar documented record of calling out both sides, lloyd, but feel free to prove me wrong,

    Patterico (c8a2b8)

  49. Bragg would not prosecute a Democrat for this alleged crime, thus saving anyone here the effort to prove their nonpartisanship. A nonpartisan would acknowledge that.

    lloyd (5e02be)

  50. There’s no way to know that. It’s like me saying that if it were Joe Biden sitting in that defendant’s chair, and everything else were the same, you’d be cheering. I believe it to be true, but I can’t know it. I can look at your record of pure one-sided partisanship here and make an educated guess, but for me to label anyone who disagrees with my conclusion a partisan would be as self-beclowning as the way you’re acting right now.

    Patterico (c8a2b8)

  51. But please, do show me your past examples of being concerned with the criminality of people who share your politics.

    I can do that. I’d bet a large sum you can’t. And yet you’re the one who’s droning on about my alleged hypocrisy and lack of standards.

    People’s records matter more than their ability to spew invective. Mine is here, available for anyone to peruse. Where’s yours?

    Patterico (a43153)

  52. The deep concern about fake news that will no doubt be shown by the lloyds and whemblys and NJRobs of the world as this trial reveals details of Trump’s conspiracy with AMI to put out actual fake news about Trump’s opponents, will tell us all we need to know about concepts like hypocrisy.

    Patterico (c8a2b8)

  53. You cannot do it when it comes to Trump.

    NJRob (eb56c3)

  54. “do it”

    ?

    Patterico (691372)

  55. I assume he means “can’t be fair when it comes to Trump.”

    Nate (cfb326)

  56. It’s a weird argument, right? Sure you can point to all the points in the past where you’ve been fair and right, but you can’t point to when you agree with me now, so, you must be biased and not me.

    Nate (cfb326)

  57. I expect that’s it. There’s nothing a cultist despises as much as someone who rejects the cult leader.

    Patterico (691372)

  58. Anyway there is likely to be evidence that Trump conspired to plant false stories about his rivals and the whatabouts and silence and spin from the Very Sincere and Not at All Hypocritical Media Critics here and elsewhere will be an amusing sight to behold.

    Patterico (691372)

  59. Calling people who don’t agree with you regarding Trump amd this railroading “cultists” sure shows your objectivity.

    NJRob (eb56c3)

  60. The thing I care about is whether NJRob, that paragon of objectivity, thinks I am objective. My evening is ruined!

    The thing about this,Rob, is it’s just so boring. We know your opinion on any given issue. We know what your reaction will be when it is shown that Trump conspired to put out fake news. I’m just not interested in conversations with robots, sorry.

    Patterico (fa768e)

  61. @48 Yes, I do believe you would support this prosecution if the defendant were a Democrat. You have a track record of exactly that. As a litmus test of nonpartisanship, that’s fine. It’s not my litmus test. For every prosecution of a political figure, ask if he/she would be prosecuted if they switched parties. Would Menendez be prosecuted if he were Republican? Yes. Would Sussmann be prosecuted if he were a Republican misrepresenting a dossier to the FBI? Yes. Would Clinesmith be prosecuted if he falsified a FISA targeted at a Democrat? Yes. Would Hunter Biden be prosecuted if he were the son of a Republican president? Yes. Would Trump be prosecuted in this case if he were Democrat? No. And it doesn’t take clairvoyance to answer these questions.

    lloyd (021010)

  62. Patterico, kindly show me where NJRob, lloyd or *anyone else* (short of maybe Rip) has ever claimed to be a “paragon of objectivity.”

    But you’re not one either, and you’ve never been one.

    You wanna cheer on the Trump prosecutions to the hilt? Be my guest. But I’d respect you more if you admitted that personal animosity plays a part, bigly. I’ll happily acknowledge same whenever Hunter Biden, Hillary Clinton or any other popular Democrat gets reprimanded or worse somehow somewhere, inside or outside of the legal system. And everyone knows that whenever actual prosecution of anyone on the left ever actually occurs, the press can’t stop screaming about “fascism.”

    Similar situation: A while back I mentioned this new movie by the great director of Ex Machina, Alex Garland, titled Civil War. I said that it looked quite worthy of viewing, because it supposedly “didn’t take sides.” Well, now the movie is out and guess how it ends? Spoiler alert: the very Trump-like president (played by Nick Offerman) is *executed,* right in the Oval Office, by a leader of one of the rebel groups. (I think he’s portrayed by Jesse Plemons.)

    And of course, critics everywhere just can’t stop salivating, masturbating and worse about this flick as a result, all while still claiming the movie is ‘objective.’ Would they do the same if a Barack Obama clone was executed at the end of this movie? Don’t insult my intelligence by pretending they would.

    qdpsteve again (711764)

  63. Hey NJRob, you got off easy. Patterico called you a robot instead of a sheep.

    Or maybe you’re a sheep robot? Or a fan of Philip K. Dick? 😉

    qdpsteve again (711764)

  64. @61. Assuming for the sake of argument that your hypotheticals are correct, your litmus test is still wrong. As there are strong legal and factual grounds for prosecuting Trump, Bragg is right to do it. When and if he doesn’t bring the same case against a Democrat, that will be the time for criticism.

    lurker (cd7cd4)

  65. @62. Patterico doesn’t have to prove he’s bias-free. No one is. The task of a credible prosecutor (actual or internet) is to set aside one’s biases while applying law to facts. Patterico showed his work. The evidence and reasoning speak for themselves. That’s what you should respond to, not what you imagine his motives are.

    lurker (cd7cd4)

  66. @64 I’m glad you’re in favor of prosecuting Biden for mishandling classified documents. That’s certainly a nonpartisan position to have.

    lloyd (021010)

  67. I quite value non-partisan opinion.

    I know where asset stands on any given issue, and I find his opinions almost always to be trash that is at odds with reality. On the other side, I know what NJRob will say about any given issue and find his opinions almost always to be trash that is at odds with reality.

    Kevin, Pat, PaulM, Sammy, Nic, etc I very often disagree with, at times think have poor analysis, but almost never find to be blindly partisan to the point of being at odds with reality. And that matters.

    I value people with some benchmark of consistency, because they aren’t treating reality as some game that can be adjusted based on who you want to win.

    I have never heard Pat opine about B. Clinton, but I would be surprised if he wasn’t quite bothered by his cheating on his wife with an intern, then perjuring himself under oath to try to avoid political fallout. Because he’s fairly consistent in his views. When someone is consistent irrespective of party in their views, I’m interested to read what they say. I haven’t heard Rob talk about his views on B. Clinton but I would be surprised if he wasn’t very angry that he cheated on his wife and perjured himself and thought he should be impeached for such (despite the fact that he does not care at all about such similar acts with Trump) because he’s a completely inconsistent partisan.

    Kevin cares about Trump being prosecuted in NY setting a bad precedent, and I sometimes wonder why if he’s as bothered about the precedent of prosecuting Hunter Biden (who would never have been prosecuted were he not the President’s son), which makes me somewhat interested to read what Kevin writes. Rob will never surprise me by saying that Hunter Biden’s prosecution is a political witch hunt, because his opinions are blindly partisan and never in doubt.

    When you know someone’s opinion based entirely on blind partisanship, their opinions aren’t interesting, and are rarely grounded in reality.

    Of course, if anyone disagrees with me, it can only be because they are hopelessly biased :-).

    Nate (cfb326)

  68. @64 So, we’re supposed to wait for the exact same case for a Democrat under Bragg before we can pass judgment? That’s hardly a serious standard. You can cite law, I’ll cite common sense.

    lloyd (021010)

  69. You wanna cheer on the Trump prosecutions to the hilt? Be my guest. But I’d respect you more if you admitted that personal animosity plays a part, bigly.

    You can respect me or not. I frankly don’t care.

    Patterico (c8a2b8)

  70. I have never heard Pat opine about B. Clinton, but I would be surprised if he wasn’t quite bothered by his cheating on his wife with an intern, then perjuring himself under oath to try to avoid political fallout. Because he’s fairly consistent in his views. When someone is consistent irrespective of party in their views, I’m interested to read what they say.

    I was furious about Clinton’s behavior and furious that people assumed it was about the oral sex and not about the perjury and obstruction of justice. I considered the impeachment managers to be heroes. That includes Lindsey Graham, before he became one of the biggest hypocrites on the planet.

    I haven’t heard Rob talk about his views on B. Clinton but I would be surprised if he wasn’t very angry that he cheated on his wife and perjured himself and thought he should be impeached for such (despite the fact that he does not care at all about such similar acts with Trump) because he’s a completely inconsistent partisan.

    Pretty much it. They don’t give a damn when it’s their guy doing the awful stuff. I can no longer pretend to respect such people. They have my contempt.

    Patterico (a43153)

  71. Of course, if anyone disagrees with me, it can only be because they are hopelessly biased :-).
    Nate (cfb326) — 4/16/2024 @ 9:08 pm

    Hey that’s MY line!

    qdpsteve again (711764)

  72. As I’ve posted before, I am especially interested in what charges BOAR skates on, versus which he doesn’t.

    Let’s be honest: whatever Don skates on, will become a free-for-all for future presidents. Whatever Don gets the paddle for, they’ll play especially coy.

    (And please everyone, don’t think for one moment that I’m a Trump fan. Just the fact that he’s willing to consider someone as batsh!t as Laura Loomer for a spot in his next admin, scares me to death. That’s as bad as any of the wannabe antifa goons in Biden’s WH.)

    qdpsteve again (711764)

  73. Nate (cfb326) — 4/16/2024 @ 9:08 pm

    Magnificent comment, Nate.

    This blog, probably more than anything else, helped me stop being such a partisan. I actually voted for Trump in 2016 (not in the primaries, mind you), and was arguing for his re-election as recently as early to mid 2020, but later that year I had a change of mind.

    I ended up voting for the Libertarian candidate in 2020–the first time in my life that I didn’t vote for the Republican candidate, going all the way back to Reagan. Then, when Trump tried to subvert a legitimate election, I felt my vote was justified.

    This year I plan to vote for Biden. I hate several of his policies, but he’s not the threat to our Republic that Trump is. People who think there are enough guardrails in place to contain Trump are playing with fire.

    norcal (633d57)

  74. Man, stepped away for 12 hours and missed all the fun.

    Just a general comment. Trump is a unique figure in presidential history for multiple reasons, one of them being that he’s a criminal and, more importantly, a criminal who attempted a coup and undermined our democracy. To me, it’s unforgivable.

    He got away with obstruction of justice, per the Mueller report, and he got away with being convicted in by the Senate, but his criminality is catching up. I’d rather the other cases came first, because Trump’s criminal fraud case in NY is the least important of the four, but it’s still a case, and Trump is not above the law, and he’s finally being legally held accountable for his acts. Better late than never.

    Paul Montagu (d52d7d)

  75. I sometimes wonder why if he’s as bothered about the precedent of prosecuting Hunter Biden

    I haven’t spent a lot of time on the Hunter Biden thing. I don’t see his prosecution being extreme for the tax evasion. Most people do time for skipping on a million dollar tax bill, even if they find the money later.

    The gun thing is more about daddy on the one hand attacking the 2nd Amendment at every opportunity and on the other hand moving heaven and earth to protect his son who plays with guns on crack.

    I also think that when a Hollywood fixer pays off Hunter’s tax debts there is something else going on.

    But I don’t think that any of the Hunter-Burisma-China-space-alien crap is worth my time.

    Kevin M (a9545f)

  76. Kevin M, HUNTER BIDEN IS AN ILLEGAL CHINESE SPACE ALIEN??!!!!!?????!!!!??? WHY didn’t you tell us sooner!!?? 😉

    qdpsteve again (711764)

  77. I have never heard Pat opine about B. Clinton

    I have and he and I think the impeachment was righteous. We differ on thee first Trump impeachment — I think it wasn’t terrible enough to get the public involved. As for Jan 6th, I wanted Trump hanged. Still do.

    I just don’t want him to be able to hide his real crimes behind this travesty in NY.

    Kevin M (a9545f)

  78. @64 I’m glad you’re in favor of prosecuting Biden for mishandling classified documents. That’s certainly a nonpartisan position to have.

    lloyd (021010) — 4/16/2024 @ 9:02 pm

    Trump’s falsification of business records isn’t remotely comparable to Biden’s retention of classified documents. If you think Biden should be prosecuted, take it up with Robert Hur.

    lurker (cd7cd4)

  79. Nothing wrong with personal animosity. If the person you are directing it to has earned it. I tend, for example, to dislike liars, especially in politics.

    Jim Miller (053ec6)

  80. @44


    The falsification of business records statute is so “novel” that it has been charged over 11,000 in New York state in the ten-year period from 2014 to 2023, and over 400 times in Manhattan. And if someone commits a felony crime they should generally be prosecuted, as you would agree if the person committing the crime were a Democrat.

    Patterico (c8a2b8) — 4/16/2024 @ 5:29 pm

    My issue with this statement, is that I haven’t seen you nor any other legal commentariat make a convincing argument that it’s kosher, in this case, for Bragg to enhance the misdemeanor charges by hooking onto the federal Campaign laws, where it was UNCHARGED in the first place, in order to navigate around the business record misdemeanor statute of limitation.

    I understand that had that federal statute was successfully been levied and led to a conviction, the State prosecution can use it to enhance other state penal laws. That makes a lot of sense.

    But that’s not what’s happening here.

    It smacks of persecutorial shenanigans, and I’m shocked that as a prosecutor yourself, you don’t seem to mind.

    whembly (86df54)

  81. that it’s kosher, in this case, for Bragg to enhance the misdemeanor charges by hooking onto the federal Campaign laws, where it was UNCHARGED in the first place

    This is the wrong question. The more correct questions are:

    1) Was the payment by Cohen a violation of federal law? His plea does not really answer that.

    2) If so, was Trump aware that it was, or that it might be?

    3) If he was aware, was that the reason for his subterfuge?

    They can easily show that Trump made these payments and that he used Cohen as a cut-out. Cohen and others may testify that Trump directed these payments and the falsification of records.

    But that isn’t enough to make these falsifications into a felony. They have to show that he was doing this to hide another crime, such as an illegal campaign contribution (the DA’s professed theory).

    Since the judge seems to have ruled that Cohen’s payments were an illegal campaign contribution — and any appeal will mention that — Trump’s defense is that either he did not think they were such (and therefore that was not his motive), or that his motive was personal regardless (either to spare him embarrassment in general, or to prevent a bimbo eruption during the election). Hiding information from the voters is not, as yet, a crime.

    I think that the weakness of this case is the need to show Trump’s intent to hide an illegal act beyond a reasonable doubt, when there are alternative explanations.

    Kevin M (a9545f)

  82. I went back and read Pat’s Substack again, looking for alternative crimes that Trump could be covering up. I see three suggestions: Trump covering up his own campaign crime, Trump covering up Cohen’s campaign crime, or Trump covering up Weisselberg’s tax crimes.

    There is also the suggestion that Trump could have been covering up something that he THOUGHT was a crime, but wasn’t, and that would be enough under the law to make the cover-up a felony.

    Fine. But making the false entries to hide embarrassment or to avoid bad press during a campaign isn’t enough. If Trump was not motivated by these, one has to ask “Why was he making these payments?”

    Also, I cannot see Trump going out of his way to help someone else out of a jam unless he was also implicated. But that may be hard for his lawyers to argue.

    Kevin M (a9545f)

  83. @81

    This is the wrong question. The more correct questions are:

    1) Was the payment by Cohen a violation of federal law? His plea does not really answer that.

    2) If so, was Trump aware that it was, or that it might be?

    3) If he was aware, was that the reason for his subterfuge?

    Kevin M (a9545f) — 4/17/2024 @ 8:06 am

    How so?

    How do you have a state case, the basis that is the falsification of business records, that is further enhanced based on federal law, that wasn’t even charged/prosecuted or prosecuted in the first place?

    This is about take two different laws from different jurisdiction/sovereigns, that to my knowledge isn’t incorporated.

    To answer your questions:
    1) Cohen pled guilty. But, that in no way should ever imply that Trump is guilty also. The defense should have an easy layup in defending this, even against a hostile judge/jury.

    2) I think it’s totally believable he didn’t think the NDA was illegal. NDAs are bread-n-butter staples in our society.

    3) The reason for NDA could arguably have multiple purposes… even with the “kill scheme” with National Inquiry who primarily argued it was for political reasons. It could be for the following reasons at the same time, not an exclusive list:
    a) to protect Trump’s public reputation
    b) to protect familial embarrassment
    c) to protect Trump’s electoral chances.

    You cannot conceivably make the case that the NDAs was only for political purposes. That’s why the federal government refused to charge him with FEC violations.

    I don’t see how its right, for a state DA to make the case that the defense violated a federal law in order to transparently navigate around the statute of limitation of the original falsification of business records.

    Even IF, you support Alvin Bragg’s crusade against Trump, and even IF you can colorably make the case that Bragg’s is in the fight to bring this case. What you cannot ignore, is the appearance of partisanship that is infecting legal sphere, such to the degree that undermines the whole legal/judicial profession.

    There’s a low of “sowing” here due to anti-Trumpism blinders.

    When this is all over and the blinders are off…

    I’m not sure you’ll like the “reapings” when it comes.

    Just don’t get mad at me when I shove “I told you so”… because… I did.

    whembly (86df54)

  84. I understand that had that federal statute was successfully been levied and led to a conviction, the State prosecution can use it to enhance other state penal laws. That makes a lot of sense.

    Patterico has addressed this repeatedly. I don’t have time to find every time he has written or talked about it, but see here, here, and especially here, where I will quote it for you:

    The long and short of the piece is this: French and Isgur argue that the Department of Justice declined to prosecute the conduct that elevates the charge to a felony. I disagree — because I think Michael Cohen’s crime might be the relevant conduct. And all Trump had to do was try to cover up Cohen’s crime.

    I also point out that, while DOJ did decline to prosecute Trump, it does not appear they did so because they doubted his guilt. To the contrary.

    Cohen’s crimes included two counts of federal campign finance violations, but we all know it won’t change your mind.

    DRJ (b2d376)

  85. According to the women, McDougal’s 10 month affair with Trump was in 2006. Daniels’ was in 2007. No discussions and payments were made for their silence until late 2015-2016, after Trump announced his candidacy. And he reportedly tried to delay payment until after the election so he wouldn’t have to pay.

    So arguing that this was about hiding it from his wife is not convincing.

    DRJ (b2d376)

  86. Trump had already trashed his own reputation for morality when the Access Hollywood tape came out. His reputation as a philandering womanizer is thriving.

    DRJ (b2d376)

  87. @84

    I understand that had that federal statute was successfully been levied and led to a conviction, the State prosecution can use it to enhance other state penal laws. That makes a lot of sense.

    Patterico has addressed this repeatedly. I don’t have time to find every time he has written or talked about it, but see here, here, and especially here, where I will quote it for you:

    The long and short of the piece is this: French and Isgur argue that the Department of Justice declined to prosecute the conduct that elevates the charge to a felony. I disagree — because I think Michael Cohen’s crime might be the relevant conduct. And all Trump had to do was try to cover up Cohen’s crime.

    Still not convincing.

    Bragg has to prove that Trump knowingly knew he may be break Federal Election Campaign laws. That’s Bragg’s theory of Trump corruptly falsifying his records.

    But the timeline doesn’t make sense either. The falsification was done while Trump was President. And even *IF* Trump document the NDA payment to Cohen has Campaign contribution, it would’ve been AFTER the election.

    I also point out that, while DOJ did decline to prosecute Trump, it does not appear they did so because they doubted his guilt. To the contrary.

    That’s absolutely moronic, I’m ashamed of this level of stupidity.

    It doesn’t matter what the DOJ thinks. All it matters if they can get a conviction beyond a reasonable doubt.

    Failing that, the ONLY presumption the government must afford is that the alleged defendant is innocence until proven otherwise.

    You wanna talk about toxicity in politics (and in legal sphere). It’s attitudes like this that perpetuates and undermines credibility.

    Cohen’s crimes included two counts of federal campign finance violations, but we all know it won’t change your mind.

    DRJ (b2d376) — 4/17/2024 @ 9:56 am

    That offers zero weight as to Trump’s guilt as well.

    Furthermore, he pled guilty. The distinction here is that defendant often take the plea deal in hopes that the plea deal’s sanction is much less than if found guilty had he gone to court.

    whembly (86df54)

  88. Most of your points, if not all, were addressed in the link (“especially here”) in my comment 84. You left several comments on that post so I know you saw it, whembly.

    DRJ (886f8c)

  89. Please don’t come to this website and say this to/about the host:

    That’s absolutely moronic, I’m ashamed of this level of stupidity.

    You apparently want to be banned, and you deserve it.

    DRJ (886f8c)

  90. Furthermore, in the pretrial, Judge Merchan did say that Bragg could not bring up the fact that Cohen pled guilty to campaign finance to taint Trump as if he’s guilty too.

    It’s a basic legal doctrine that just because a defendant pled guilty to ‘x’ crimes, it doesn’t mean that the co-conspirators are also guilty.

    whembly (86df54)

  91. @89

    Please don’t come to this website and say this to/about the host:

    That’s absolutely moronic, I’m ashamed of this level of stupidity.

    You apparently want to be banned, and you deserve it.

    DRJ (886f8c) — 4/17/2024 @ 10:17 am

    I’m directing it to you, not the host.

    Its mind-boggling that you would “read the tea leaves” of a DOJ’s refusal to prosecute someone as if it’s meaningful.

    whembly (86df54)

  92. The prosecutors will have to prove Trump covered up Cohen’s crime.

    Cohen plead guilty and allocuted to the facts supporting his guilt. It was not a no lo contendre plea. It was a guilty plea and he was convicted the same as if there was a trial and verdict.

    DRJ (886f8c)

  93. @88

    Most of your points, if not all, were addressed in the link (“especially here”) in my comment 84. You left several comments on that post so I know you saw it, whembly.

    DRJ (886f8c) — 4/17/2024 @ 10:15 am

    Like I said, I find them unconvincing.

    whembly (86df54)

  94. @92

    Cohen plead guilty and allocuted to the facts supporting his guilt. It was not a no lo contendre plea. It was a guilty plea and he was convicted the same as if there was a trial and verdict.

    DRJ (886f8c) — 4/17/2024 @ 10:20 am

    Which has zero weight at another’s defendant’s trial.

    Furthermore, Cohen is a convicted perjurer who’s credibility is going to be demolished on the stand.

    whembly (86df54)

  95. Trump’s DOJ would not have charged Trump, and the DOJ has a policy not to indict sitting Presidents. The Biden DOJ could have indicted Trump for this but his election denialism/manipulations and January 6 behavior probably took precedence.

    Do you consider that a moronic answer that makes you ashamed for me?

    DRJ (886f8c)

  96. Which has zero weight at another’s defendant’s trial.

    No.

    Furthermore, Cohen is a convicted perjurer who’s credibility is going to be demolished on the stand.

    True, but his testimony will probably be corroborated by David Pecker, who has not lied.

    DRJ (886f8c)

  97. Trump wasn’t prosecuted by the Justice Department based on its longstanding policy that a President is immune from indictment.

    Rip Murdock (4f1d60)

  98. I expect the prosecutor will offer evidence of Cohen’s crimes and (judicial notice?) of his guilty plea, as well as offer evidence of Trump’s attempt to cover up the crimes by falsifying his business records to treat Cohen’s reimbursement as a legal fee.

    DRJ (886f8c)

  99. For what it’s worth, DRJ, whembly is still saying sh-t like “Russia Collusion Hoax” despite being shown the plain language of the Mueller report.

    Paul Montagu (6a638f)

  100. Interesting, Paul. The Trump trials are legally important but are paying surprising dividends online. They are causing people to show how they really feel.

    DRJ (b2d376)

  101. There have been countless reports about the facts of this case, but we don’t know what is and isn’t true (other than the facts of Cohen’s conviction). I am interested in finding out the truth. I am not saying Trump is guilty. Everything I’ve thought about has to do with the charges. We need to see the evidence to decide guilt.

    DRJ (b2d376)

  102. whembly,

    I hope you can calm down and discuss this. I don’t see the point of name-calling over a court case like this.

    DRJ (1a9553)

  103. @99

    For what it’s worth, DRJ, whembly is still saying sh-t like “Russia Collusion Hoax” despite being shown the plain language of the Mueller report.

    Paul Montagu (6a638f) — 4/17/2024 @ 10:38 am

    For what it’s worth, Paul, the plain language of the Mueller report doesn’t show any coordination between the Russian government and the Trump campaign.

    Having superficial contacts with agents of Russian government ≠ to collusions or even attempts of collusions.

    Hence, the descriptor of “Russian Collusion Hoax” is far more apt as it describes the length that the DOJ had to go in order to bloody the nose of the Trump administration. Its far more apt than YOU calling the riot at J6 amounting to an insurrection.

    whembly (86df54)

  104. How do you have a state case, the basis that is the falsification of business records, that is further enhanced based on federal law, that wasn’t even charged/prosecuted or prosecuted in the first place?

    Because all that is needed is for Trump to be trying to cover up something he thought was illegal. The prosecution has to prove that, though. All that is needed for the defense is to show that he was quite possibly doing something else.

    If he thought that paying hush money was legal, and he was covering up the payment because there isn’t much point in paying hush money publicly, the I don’t see the state’s case.

    Kevin M (a9545f)

  105. Furthermore, in the pretrial, Judge Merchan did say that Bragg could not bring up the fact that Cohen pled guilty to campaign finance to taint Trump as if he’s guilty too.

    It’s a basic legal doctrine that just because a defendant pled guilty to ‘x’ crimes, it doesn’t mean that the co-conspirators are also guilty.

    This is true. The judge has provisionally ruled that the prosecution may not argue that Cohen’s guilty plea is probative of Trump’s guilt, although the underlying facts of that plea may be testified to, and Cohen may be asked if there was a criminal proceeding arising from his actions with respect to the FECA violation.

    However, if the prosecution can show that Trump intended to commit a FECA violation or conceal Cohen’s (and show that Cohen committed one) they get over the hurdle of showing an underlying crime, getting them to the felony. But it is not the only theory, which is why this comment of yours is wrong:

    Bragg has to prove that Trump knowingly knew he may be break Federal Election Campaign laws. That’s Bragg’s theory of Trump corruptly falsifying his records.

    It is one of them. Violation of state election law is another. Violation of state tax fraud law is a third. Please educate yourself on this issue. I have discussed it on my Substack. That’s a great place to start.

    That’s absolutely moronic, I’m ashamed of this level of stupidity.

    This is a warning. What makes your invective worse is that the comment to which you are responding is in no way moronic, stupid, or even wrong. You are responding to a completely correct comment with nasty insults. That will not be tolerated. If DRJ were engaged in rank hypocrisy — something I cannot even imagine happening — I might have a looser grip on the reins of what can be said to her. But she is not. She is right. Do not talk to her like that.

    Patterico (a43153)

  106. Whembly, I think we can all agree that the amount of collusion between the Trump campaign and Russia was low.

    That isn’t what people claim. Have you read the Mueller report?

    nate_w (f52876)

  107. @102

    whembly,

    I hope you can calm down and discuss this. I don’t see the point of name-calling over a court case like this.

    DRJ (1a9553) — 4/17/2024 @ 11:31 am

    My apologies for being cranky. That was uncalled for.

    Part of my anger is what I view of actions taken by anti-Trumpers, believing that they’re on this just crusade for justice, ignoring the possibility that much of this is driven by partisan animus, rather than approaching these events in good faith.

    I don’t think Bragg and democrats really care if Bragg prevails in this case.

    I think they ONLY care to muddy the political waters, because the legal lawfare itself is the point. Its the ONLY explanation why it’s happening now, and not in 2021/22.

    When I see Patterico and you DRJ (if I remember you’re in the legal profession)….abjectly eager for something/someone to take down Trump at all cost, I’m disheartened that ya’ll for one moment, cannot set aside your animus and look at the other perspectives as to WHY someone like me, or Kevin M or others are trying to articulate opposing views.

    It’s disheartened to face not just disagreements, which is perfectly fine, but outright nasty retorts here…such as recently being labeled to being in a cult.

    Patterico does a great job to make his case. There’s no denying that…as he’s obviously skilled at his job and is an amazing writer.

    But I’m reminded that prosecutors can indict a ham sandwich. Just because you can contort your arguments to fit a desired parameter so that you can indict/convict your target, doesn’t mean it’s the right thing to do. Especially when there are obvious partisan bias in play.

    That is not to say that I don’t think politicians should never be charged for things they do. Only that the crime should be absolutely clear and WITHOUT partisan bias as much as possible. I seriously doubt you can make that case for the NY and GA cases.

    Otherwise, you invite the persecution claims and witnessing a martyr being made in realtime.

    Not that I don’t think think it’ll happen, as I think Trump is screwed and he’ll be convicted easily by Bragg. But, can you imagine the caca-storm if he was not found guilty?

    I almost…ALMOST want Trump to be found guilty, just to avoid dealing with a supercharged persecution claims…. almost.

    So, if you tl;dr what I just vomited… here’s what you should take away from my position:

    …and then what?

    I’m an avid fan of Thomas Sowell’s writings, and one recurring theme that shows in his works is when describing behaviors and policies that leads to paradoxical results because of the failure to think beyond stage one — the failure to ask the most important question: And then what?

    Its why I continually harp on precedents, because in politics — what goes around, comes around.

    whembly (86df54)

  108. @105

    This is a warning. What makes your invective worse is that the comment to which you are responding is in no way moronic, stupid, or even wrong. You are responding to a completely correct comment with nasty insults. That will not be tolerated. If DRJ were engaged in rank hypocrisy — something I cannot even imagine happening — I might have a looser grip on the reins of what can be said to her. But she is not. She is right. Do not talk to her like that.

    Patterico (a43153) — 4/17/2024 @ 12:14 pm

    I apologize to both you and @DRJ.

    My behavior is unacceptable, no matter what.

    I’ll step away from here for a few days, and please forgive my attitude.

    whembly (86df54)

  109. For what it’s worth, Paul, the plain language of the Mueller report doesn’t show any coordination between the Russian government and the Trump campaign.

    Bullsh-t. Manafort was literally Trump’s campaign manager, and he literally gave internal polling data to a Russian spy.

    Paul Montagu (383f45)

  110. Oh, and Manafort’s relationship with a Russian spy (that would be Kilimnik) was not “superficial”. He worked with and for Manafort from 2005 until Yanukovych fled to Russia in 2014. Manafort hired the guy him being sacked by the International Republican Institute because they concluded he was a Russian spy, but that didn’t seem to bother Manafort, who consulted for a pro-Putin Ukrainian political party and pro-Putin president.

    Paul Montagu (383f45)

  111. …hired the guy despite him being sacked…

    Paul Montagu (383f45)

  112. I think they ONLY care to muddy the political waters, because the legal lawfare itself is the point. Its the ONLY explanation why it’s happening now, and not in 2021/22.

    All-caps claims aside, did Trump spend years fighting subpoenas for documents relevant to this case, or did I just dream that?

    Otherwise, you invite the persecution claims and witnessing a martyr being made in realtime.

    Many people are saying he is a martyr like the world has never seen. He is perhaps being Navalnyed, or being crucified “worse than Jesus.”

    Patterico (73db81)

  113. But it’s not a cult!

    Patterico (73db81)

  114. When I see Patterico and you DRJ (if I remember you’re in the legal profession)….abjectly eager for something/someone to take down Trump at all cost, I’m disheartened that ya’ll for one moment, cannot set aside your animus and look at the other perspectives as to WHY someone like me, or Kevin M or others are trying to articulate opposing views.

    I think you believe that, and that is beyond disheartening. It is also a good reason to never talk to you again, because you will assume everything I say is based on animus and bias.

    DRJ (ee8b44)

  115. I believe in the legal process. I believe there are good judges, prosecutors, and defense counsel. I also believe that bad ones will eventually be exposed and dealt with.

    Public scrutiny is a good thing, but only if people are willing to consider the process fairly. Patterico looks at the process fairly. His analysis of countless cases over the years has helped me learn. It doesn’t matter if the case is a police case, Border Patrol, or politics, I know he will look at the details of the process, not some result he wants.

    I talk about the Trump cases because I want to understand them and because I want them to be fair. It doesn’t help our country or our legal system to have bad cases. For the systems sake, I want four charges and I think the 4 cases involve fair charges.

    Finally, if the charges are fair then I don’t care about the outcomes. Whatever the various judges/juries decide is fine. I couldn’t say that if the only thing I cared about was getting Trump and I don’t care about Trump’s ultimate legal jeopardy. When it comes to Trump, the election will be the only referendum that matters.

    DRJ (b2d376)

  116. I want fair charges, not four charges.

    DRJ (ee8b44)

  117. Just out of curiosity, what gender does each Patterico contributor prefer? 🙂

    All this time I’ve been assuming:

    Dana: female
    DRJ: male
    JVW: male

    qdpsteve again (fa8408)

  118. DRJ is a very wise, very respected woman and commenter. Dana (the coblogger) is female. JVW is a man.

    Dustin (8c84ad)

  119. oh crap

    I respect Dana and JVW too lol.

    Dustin (8c84ad)

  120. Dustin, thanks.

    qdpsteve again (fa8408)

  121. Cohen plead guilty and allocuted to the facts supporting his guilt. It was not a no lo contendre plea. It was a guilty plea and he was convicted the same as if there was a trial and verdict.

    DRJ (886f8c) — 4/17/2024 @ 10:20 am

    Which has zero weight at another’s defendant’s trial.

    Furthermore, Cohen is a convicted perjurer who’s credibility is going to be demolished on the stand.

    I think this all misses the point. If Trump attempted to cover up Cohen’s actions (or attempted to cover up his own) that is only relevant if Trump was attempting to cover up a crime. Even if it WAS a crime, if Trump did not act on that basis then I don’t see how the prosecution gets to a felony.

    But perhaps I’m wrong. If someone attempts to cover up an act that is later shown to be a crime due to some later theory of the law, does that cover-up become criminal even if the actual reason for the cover-up was mundane?

    Kevin M (a9545f)

  122. Hmmm. It seems that the italics tag no longer extends past a close-blockquote. Again for clarity.

    Cohen plead guilty and allocuted to the facts supporting his guilt. It was not a no lo contendre plea. It was a guilty plea and he was convicted the same as if there was a trial and verdict.

    DRJ (886f8c) — 4/17/2024 @ 10:20 am

    Which has zero weight at another’s defendant’s trial.

    Furthermore, Cohen is a convicted perjurer who’s credibility is going to be demolished on the stand.

    I think this all misses the point. If Trump attempted to cover up Cohen’s actions (or attempted to cover up his own) that is only relevant if Trump was attempting to cover up a crime. Even if it WAS a crime, if Trump did not act on that basis then I don’t see how the prosecution gets to a felony.

    But perhaps I’m wrong. If someone attempts to cover up an act that is later shown to be a crime due to some later theory of the law, does that cover-up become criminal even if the actual reason for the cover-up was mundane?

    Kevin M (a9545f)

  123. I give up.

    Kevin M (a9545f)

  124. I sent a private email to Pat apologizing…

    @DRJ, I hope this gets to you…I want to again apologize for my previous outburst and I’m always interested to what you may have to say.

    I don’t work in the legal industry, I’m just a propeller head working in healthcare. I’m very passionate about politics and the direction of our country. I just need to do better at embracing the idea that some here (namely you and Pat) has opinions that is worth reading.

    Just so that you know, I’ve spent last night reading Pat’s substack to try to get a better understand where ya’ll are coming from… I still have questions, but I’m going to sit on them for a bit.

    Sincerely,
    Robert (whembly)

    whembly (c88dc4)

  125. DRJ wrote: Cohen plead guilty and allocuted to the facts supporting his guilt. It was not a no lo contendre plea. It was a guilty plea and he was convicted the same as if there was a trial and verdict.

    Kevin replied: Which has zero weight at another’s defendant’s trial.

    I would not even admit it into evidence unless the defense chose to use the conviction for impeachment, and then only for purposes of impeachment. Certainly not as substantive evidence in the State’s case-in-chief.

    With Cohen present and testifying in court, it serves no purpose as hearsay admitted under the “against penal interest” exception. It is only “prior consistent statement”, generally inadmissible except to rebut a defense claim of recent fabrication.

    nk (629463)

  126. Kevin replied: Which has zero weight at another’s defendant’s trial.

    No I didn’t — that was Whembly. HTML difficulties

    Kevin M (a9545f)

  127. The point I was trying to make is that for the felony bump to happen, Trump has to be attempting to cover up a crime — any crime. But I don’t think it’s sufficient to show that what he covered up was a crime unless the state can can show that he thought it was, or should have known it was.

    Crimes that are only such under some later legal theory have an ex post facto taint.

    Kevin M (a9545f)

  128. I’m not a lawyer, and you might be right Kevin, but does your interpretation seems weird to me.

    Like, I know if someone dies during the commission of a crime, that death, even if accidental becomes a murder charge. To charge someone with the underlying crime, there’s no need for the person to be aware it’s a crime, but are you saying for the death to be charged the prosecution would have an additional burden of proving knowledge of the underlying crime?

    So you would say if you rob a liquor store, no proof of knowledge that robbing a liquor store is required, but if someone dies, the prosecution has to prove that the person knew robbing a liquor store was a crime? Seems weird.

    Nate (f52876)

  129. DRJ (b2d376) — 4/17/2024 @ 10:03 am

    According to the women, McDougal’s 10 month affair with Trump was in 2006. Daniels’ was in 2007.

    No, Daniels was in 2006.

    https://www.usatoday.com/story/graphics/2024/04/17/timeline-trump-trial-stormy-daniels-hush-money/73328892007

    Daniels claimed she and Trump had sex in 2006, not long after Melania Trump gave birth to their son Barron. Trump denies the claim.

    He better not deny it under oath. Daniels said she did it one time (which makes it a one night stand) and then Trump wanted to it again, but her condition was that he put her on Celebrity Apprentice, and they could not reach an agreement.

    McDougal’s 10 month affair started in July 2006 and must have gone into 2007. He saw her again and again until Trump wanted to introduce her to Melania, (I don’t know if she says as his mistress or not) and Karen McDougal called it off.

    They both started at the exact time and place I think give or take a day or two nor three (Lake Tahoe, Nevada, at a celebrity golf tournament)

    https://www.gq.com/story/donald-trump-stormy-daniels-karen-mcdougal-tahoe-weekend

    Sammy Finkelman (c2c77e)

  130. All just speculation. I’m waiting to see what actually happens at trial.

    Rip Murdock (4f1d60)

  131. So you would say if you rob a liquor store, no proof of knowledge that robbing a liquor store is required

    That’s why I said “or should have known.” In robbing a liquor store, where a death has occurred, every accomplice can be charged with murder. But they have to BE an accomplice. The taxi driver outside in the “getaway car” might not be culpable.

    Kevin M (a9545f)

  132. The problem here is that the rules for what is a personal expense and what is a campaign expense have been well and truly muddied. On top of that, you have an expense that could easily be either.

    If Trump had paid Stormy directly I think it would not matter. If he had paid out of campaign funds, it’s arguable.

    Having Cohen make the payments was, at first blush, to hide the PAYMENTS, not to diddle the campaign laws. But then Cohen pleaded guilty to an illegal campaign expense even though his actions were entirely ministerial.

    Does that guilt transfer back to Trump’s participation? Not directly. Does retroactively inform Trump’s motives? I doubt it.

    Kevin M (a9545f)

  133. @130 Yes, me too. The speculation pans out if the jury says it does. The trial isn’t about the law or evidence, or legal minutiae, it’s about the jury and who’s on it. Bragg is playing with marked cards and he knows it. All the speculation will get resolved on appeal, when Bragg and his fans know it won’t matter.

    lloyd (916d19)

  134. 127. Kevin M (a9545f) — 4/18/2024 @ 9:43 am

    The point I was trying to make is that for the felony bump to happen, Trump has to be attempting to cover up a crime — any crime.

    If that’s what Bragg intends to argue, it’s hard to argue against the idea that Trump was agreeing to cover up some crime by Michael Cohen or that he thought it would be a crime to openly reimburse Cohen with personal checks. But he could have assumed that Michael Cohen was being paranoiac.

    It cost him double the money to do it the way Michael Cohen and Allen Weisselberg told him to.

    But maybe Trump deferred to their judgement.

    Now Bragg is claiming something else:

    He is claiming, based on Michael Cohen’s testimony that:

    1.Trump and Cohen agreed that the purpose of the payment to Stormy Daniels was to effect the election.

    AND

    2. Trump would reimburse Cohen.

    Why he would even contemplate asking the not so rich Cohen to use his own money is not explained.

    There is every reason to believe that neither of these claims is true, and that Michael Cohen decided to use all his resources to buy off Stormy Daniels when he could not get either the National Enquirer or Donald Trump to do so.

    But if this is the case, Michael Cohen’s motive couldn’t have been to help, or even guarantee in his mind, that Trump would win the election.

    I could see him spending aa few thousand dollars to do so, if the purpose was the election.

    Not the enormous amount of money he laid out.

    All without recording Trump agreeing to reimburse him or signing some sort of contract.

    I think maybe Cohen was involved in setting Trump up with these two women back in 2006 – and behind Trump’s back.

    Sammy Finkelman (1d215a)

  135. Kevin M (a9545f) — 4/18/2024 @ 12:02 pm

    On top of that, you have an expense that could easily be either.

    A personal expense for Trump. A political expense for Cohen according to his own testimony, but he probably had a different motive because I don’t think Trump agreed too such a crazy thing as Cohen laying out all that money and relying on him to give him back the money later.

    If Trump had paid Stormy directly I think it would not matter. If he had paid out of campaign funds, it’s arguable.

    But it was Cohen who paid Stormy through a shell company.

    Because Trump didn’t want to spend the money.

    Sammy Finkelman (1d215a)

  136. The 12-person jury has been picked.
    https://www.cnn.com/politics/live-news/trump-hush-money-trial-04-18-24/index.html
    Six more alternates still to go.

    nk (629463)

  137. All 12 will out themselves on social media before the week is over.

    Kevin M (a9545f)

  138. 12 unbiased people ready to give Trump fair consideration, found in a matter of days in Manhattan. There are people who really want to believe that’s possible. Too funny.

    lloyd (916d19)

  139. nk 125,

    The prosecution has asked to admit evidence of his guilty plea to explain why Cohen lied. Initially, Cohen was saying he did not pay off Daniels. It was only after he agreed to a guilty plea that he said the opposite.

    The prosecution wants to offer evidence of the timeline and his plea. Earlier this week, the prosecutor argued that “Michael Cohen is very much like a codefendant in a robbery case who agreed to testify against his cohort.” I don’t know if the judge has ruled yet or. If so, how he ruled.

    DRJ (b2d376)

  140. Illinois has relaxed the rule about accomplice testimony to the current standard

    When a witness says he was involved in the commission of a crime with the defendant, the testimony of that witness is subject to suspicion and should be considered by you with caution. It should be carefully examined in light of the other evidence in the case.

    But as Patterico pointed out recently in these threads, corroboration has traditionally been required. I would argue that the accomplice’s own prior statements are not corroboration and therefore not a basis for admitting them.

    nk (629463)

  141. Already have multiple jurors removed; lying under oath about bias and criminal behavior and being outed by the media to friends and family.

    NJRob (7d6839)

  142. I would not even admit it into evidence unless the defense chose to use the conviction for impeachment, and then only for purposes of impeachment. Certainly not as substantive evidence in the State’s case-in-chief.

    With Cohen present and testifying in court, it serves no purpose as hearsay admitted under the “against penal interest” exception. It is only “prior consistent statement”, generally inadmissible except to rebut a defense claim of recent fabrication.

    nk (629463) — 4/18/2024 @ 8:58 am

    I think generally anything in the plea negotiation and resolution process is off limits, just as a matter of good form. It wouldn’t take much for the defense bar to just refuse to play along in future factual stipulations, causing the docket to collapse under its own weight.

    However, aren’t these guys in a conspiracy, and therefore Cohen’s admission is the conspiracy’s admission and a statement of a party opponent if presented against that conspiracy in Trump’s trial?

    Still really not a sensible way to get cohen to testify. Scalia was right about that and common sense would be that Cohen gets cross examined.

    Dustin (058534)

  143. Trump’s problem with jurors, and more particularly in this case, is that there is nobody in the word who does not believe that he desperately wanted to be elected President and would do anything to get elected. Anything!

    What his supporters consider a “fair” jury is one composed of people who feverishly wanted him to be elected.

    Too bad, really. When Cohen was forming shell corporations and signing them as David Denison, he should also have opened a bank account in Georgia’s 14th Congressional District. That way, Trump could have been assured of a friendly jury.

    nk (629463)

  144. However, aren’t these guys in a conspiracy, and therefore Cohen’s admission is the conspiracy’s admission and a statement of a party opponent if presented against that conspiracy in Trump’s trial?

    No. A co-conspirator’s act is the act of all only in furtherance, or in the course, of the criminal enterprise. When it comes to snitching out the others, the rule is the jury instruction in my comment 140, and traditionally even stricter, requiring corroboration.

    nk (629463)

  145. Trump’s problem with jurors, and more particularly in this case, is that there is nobody in the word who does not believe that he desperately wanted to be elected President and would do anything to get elected. Anything!

    nk (629463) — 4/18/2024 @ 6:16 pm

    Completely true, as Trump’s subsequent actions demonstrate.

    norcal (2c0043)

  146. Donald Trump ‘Probably’ Can’t Get Fair Trial: Jury Consultant

    Former President Donald Trump “probably” can’t get a fair trial in Manhattan, a legal expert said this week.

    “That’s probably true,” jury consultant and lawyer Renato Stabile said on CNN of the former president’s comments that he wouldn’t receive a fair trial in New York due to the city’s support for Democrats.

    “There are other counties you could have moved this case to. I’m sure Donald Trump would have loved to move the case to Richmond County, to Staten Island, where he’s overwhelmingly favored.”

    “I think overwhelmingly, he is facing a very uphill battle here and I think they’re looking to get maybe one or two Republicans on the jury and go for the hung jury,” Stabile added.

    Merchan, who is overseeing the criminal trial, previously released details of a jury questionnaire for both the prosecution and defense. In his letter, Merchan listed 42 questions that he agreed would be asked of each potential juror following discussions with both the prosecuting and defending legal teams.

    “There are no questions asking prospective jurors whom they voted for or intend to vote for, or whom they have made political contributions to,” Merchan wrote. “Nor are jurors asked about their specific political party registration, though the answer to that question may easily be gleaned from the response to the other questions.”

    Political contributions aren’t relevant to discerning a juror’s prejudice? Ridiculous.

    lloyd (0adce6)

  147. @143 A Manhattan jury would’ve found Bush and Cheney guilty of war crimes if Bragg had been DA.

    lloyd (0adce6)

  148. Trump’s problem with jurors, and more particularly in this case, is that there is nobody in the word who does not believe that he desperately wanted to be elected President and would do anything to get elected. Anything!

    What his supporters consider a “fair” jury is one composed of people who feverishly wanted him to be elected.

    Too bad, really. When Cohen was forming shell corporations and signing them as David Denison, he should also have opened a bank account in Georgia’s 14th Congressional District. That way, Trump could have been assured of a friendly jury.

    nk (629463) — 4/18/2024 @ 6:16 pm

    Revisionist history that ignores the reality of what existed in 2016. No one believed he had a chance to win. Everyone claimed Bill Clinton got him to run to throw the race to Hillary. The Access Hollywood tape was leaked and people demanded he resign. The NY Times had Hillary at a 98% change of winning.

    There is nothing there.

    NJRob (eb56c3)

  149. Revisionist history that ignores the reality of what existed in 2016. No one believed he had a chance to win. Everyone claimed Bill Clinton got him to run to throw the race to Hillary. The Access Hollywood tape was leaked and people demanded he resign. The NY Times had Hillary at a 98% change of winning.

    How does all that not make Trump feel desperate and do all in his power to hush up the stripper storm if he wanted to stay in the race? It does not compute, NJRob.

    nk (d33f94)

  150. It shows the payments had nothing to do with the race.

    NJRob (eb56c3)

  151. I do not agree with your conclusion, but I can empathize with your reasoning.

    In the environment I was raised in, most men would rather chew their foot off than have the world know that they dipped their toes (so to speak) in a sewer. Even winning the Presidency would be a secondary consideration.

    But I do not consider Trump that kind of man.

    nk (d33f94)

  152. “Michael Cohen is very much like a codefendant in a robbery case who agreed to testify against his cohort.”

    Except that there is no evidence that his co-defendant (or Cohen, for that matter) knew it WAS a robbery at the time.

    Kevin M (a9545f)

  153. However, aren’t these guys in a conspiracy, and therefore Cohen’s admission is the conspiracy’s admission and a statement of a party opponent if presented against that conspiracy in Trump’s trial?

    Cohen’s plea was to multiple charges, only one of which involved Trump. His plea was an admission that he wished to avoid statutory maximums of several of those charges, and the one that affected Trump was not the most serious. I think it is VERY dangerous to bring that can of worms into the courtroom and then limit the cross.

    If admitted, the jury should understand that there were selfish reasons, involving matters outside the scope of this trial, that might have caused Cohen to plead as he did. At the very minimum, the collection of charges he pleaded to and the resulting sentence should be placed in evidence to give the jury proper context.

    Kevin M (a9545f)

  154. Completely true, as Trump’s subsequent actions demonstrate.

    In 2020, having mainlined the drug for a term, but in 2016? There were times it appeared he didn’t care all that much, which probably helped him win.

    Kevin M (a9545f)

  155. Purely for entertainment value, I would like to hear why Stormy’s need for a payoff happened to come up in October 2016. A cynic would call it extortion.

    Kevin M (a9545f)

  156. Oh, it was absolutely extortion Kevin. I don’t think anyone doubts that Stormy was not a good guy here. She also slept with a married man and also tried to leverage that into a spot on a TV show. But I’m not sure that matters here.

    Nate (f52876)

  157. And two lawyers who were involved with her, Cohen and Avenatti, went to prison.

    A President to make America great again.

    nk (d33f94)

  158. But I’m not sure that matters here.

    Well, we are criminalizing a blackmail payment because it was done in secret….

    Kevin M (a9545f)

  159. Kevin M (a9545f) — 4/19/2024 @ 10:04 am

    Way to miss Nate’s point about Stormy sleeping with a married man.

    Rip Murdock (4f1d60)

  160. Say what you want about Speaker Johnson, but incompetence is not one of his faults. Getting the aid package through a Rules Committee stacked with HFC goons took some duck-up-lining to get the Rule to the floor. And now the Rule has passed by more than 3-1.

    Now, the bills happen separately, and those that want to act out can, no problemo.

    Kevin M (a9545f)

  161. Kevin, there’s no laws against paying blackmail in secret. There are laws against committing fraud.

    Similarly, he can’t rob a bank to pay her. If someone robs a bank to play their blackmailer, prosecuting bank robbery is not “criminalizing making a blackmail payment.”

    Nate (f52876)

  162. Way to miss Nate’s point about Stormy sleeping with a married man.

    I didn’t think it required a response, other than noting the blackmail. And the fact that she was not charged for her extortion, which I’m guessing is a straight up felony in NY if you get $130,000.

    Kevin M (a9545f)

  163. Is adultery is still a crime in NY? Could that be the underlying crime that Bragg ends up using?

    Kevin M (a9545f)

  164. Appropos of nothing, I just sold a comic book for $3850. But I did not falsify the records.

    Kevin M (a9545f)

  165. Kevin, there’s no laws against paying blackmail in secret. There are laws against committing fraud.

    You say “fraud” I say “cut-out.” I have to think that Trump did not want a paper trail as the bimbo was likely to try to double-dip if there was one.

    Kevin M (a9545f)

  166. No one is prosecuting Trump for adultery whether its on the books or not because no one else gets prosecuted for adultery. But if I commit fraud, I can and should go to jail, and so the same laws should apply to Trump. And while yes, I feel for him that he was being extorted, it’s hard for me to feel too bad for him as he put himself in those positions (pun?) intentionally.

    Being extorted doesn’t mean he can break laws to deal with it. There’s no extortion defense to murdering your extortioner. There’s no extortion defense for stealing to pay your extortioner. There’s no extortion defense for fraud to cover up your extortion payments.

    Nate (f52876)

  167. Why say “cut-out” and make up your own terms that have no agreed upon definitions when terms like “fraud” are well defined and appropriate here?

    Nate (f52876)

  168. What was the fraud? Who was defrauded? To a layman those two things are coupled. Sadly, lawyers have more flexible minds.

    Kevin M (a9545f)

  169. Nate, why do you think that Trump used this method to pay her if it was not to hide the fact that he was paying her?

    Kevin M (a9545f)

  170. Donald Trump is an unscrupulous man. His history is filled with scams like Trump University, unpaid contractors and lawyers, and many other sordid affairs. He has shown a reckless disregard for the law, and has used the protections we all enjoy to turn the legal and political systems on themselves to his advantage. And he has gotten more daring and brazen over time, culminating in a conspiracy to overthrow our constitutional order via violence, threats, and quasi-legal finagling.

    When Al Capone was convicted of tax evasion, it was not an act of persecution of a righteous man. The fact is that the “less serious” charges were the easiest to prove. He deserved to rot in prison for everything he had done, and tax evasion was just one aspect of his overall criminality.

    To pretend that Bragg’s prosecution is ONLY politically motivated is to deflect away from the difficult truth that Trump is a “target-rich environment” for prosecutors.

    Kenneth P. (1f45e0)

  171. @170, Exactly. This is judicial hygiene. The business records were falsified…and he did it to evade political scrutiny. He should face and answer the charges. That’s our system.

    AJ_Liberty (1295e6)


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