Patterico's Pontifications

4/15/2024

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.

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

  1. Here is a simple thought experiment that undercuts the argument that this case against Trump is legally sound: if Trump had reported the payments to the FEC as campaign expenses, would the FEC have accepted them as such, or would Trump have faced possible federal prosecution for campaign finance violations?

    Because last I checked, you can’t use campaign funds (from whatever source) to settle pre-existing lawsuits against you, or for “personal use” matters, or for other things simply intended to make you look good (or merely keep you from looking bad) for your campaign. You could use it to hire a makeup stylist to prepare you for a televised debate, but not to pay for the suit that you would wear for the debate, because the suit could also be used for separate personal matters.

    If Trump could be prosecuted for doing something by the Federal government, and prosecuted for not doing it by a state government, then wouldn’t it then follow that Supremacy tilts the balance towards the Federal interpretation?

    Observer (af973a)

  2. If Trump’s motives were personal (and if mixed, how does that work?) then the case collapses to a few misdemeanors. I wonder if Trump offered to plead to such.

    There is also the overcharging argument were multiple acts to further a single crime are charged as multiple crimes, like charging a bank robber with 5 robberies for the five sacks of loot he took.

    As for what is an election expense, what a can of worms. I think the jury has to follow the judge’s instructions there, but there will be grounds for appeal.

    I think my biggest problem with this case is that the judge has found all questions for the prosecution, leaving most of Trump’s defense for the appellate court. Maybe that kind of delayed outcome is Trump’s Karma.

    Kevin M (a9545f)

  3. I don’t see other legal analysts hung up on the number of counts. This isn’t quite counting punches in a fist fight. There are actual weeks between when the next false entry is made. Still, judges get paid to make reasonable sentences. It’s not like a judge has no discretion in assigning a reasonable punishment, taking into account novelty and past offenses. If you write a bunch of bad checks, you can get a count for every check. I’m not sure you can argue that all illegal acts must be collapsed into one count because they are the same…or part of a larger effort to defraud. I’m also all right with letting the evidence talk here. Like Patterico, if the evidence goes beyond Cohen…which is highly likely….the prosecutor should be allowed to develop that argument and it may very well be persuasive. Why should we preemptively opine on evidence that we don’t know?

    AJ_Liberty (1295e6)

  4. If you write a bunch of bad checks, you can get a count for every check.

    Bad analogy as those are always to different people, have different stimuli, and each needs to be proven by itself.

    There’s a DoJ paper I posted before that says that you don’t charge an embezzler for each entry. That may be a minority opinion, but the gist was that overcharging all the possible counts is a prosecutor’s game to scare the defendant into settling. Or in this case to get a bigger headline.

    https://www.ncjrs.gov/pdffiles1/Photocopy/67947NCJRS.pdf

    The point is that each act was identical to the last act and each act was in furtherance of a single goal (a payoff, made in installments). If I pay off a car loan, I am not paying off 60 separate small loans over 60 months.

    There is not separate proof of each payment, and it is unlikely that he will be found guilty of only some of them. So, we have a crime broken up into 10 or 11 pieces, all of which are connected and are indivisible in proof, or appeal.

    The “33” number sounds a lot better than “3” though at the press conference.

    Kevin M (a9545f)

  5. The pre-emption argument a straw man and is stupid and I don;tknow who argues it. It is argued that the FEC and the federal prosecutor deiced not to prosecute (Trump?) over this but that is an argument that it is meritless, not pre-empted. The fact is that it could have been a crime for Cohen because he had no personal motive (as far as is known*) but Trump did and for him to use campaign money might have been considered a crime.
    ————————-
    * I think he must have had had a personal motive (and had something to do with arranging the 2006 Lake Tahoe assignations in the first place behind Trump’s back) because he is fact advanced the money without consulting Trump.

    Now Michael Cohen says he did spend the money with Trump’sprior knowledge and consent – orders in fact he claims – and what’s more, that Trump agreed with him that he needed to pay off Stormy Daniels because of the election, but this is the key factual element in dispute. (Trump wants to testify to contradict Michael Cohen. If he doesn’t want to commit perjury, he will have the guts not to deny the tryst)

    Michael Cohen taped many of his conversations with Donald Trump but somehow he did not tape Trump agreeing to reimburse him (why would he not protect himself?) and later Trump had to be argued into reimbursing him – albeit that kast is not that strong a point since Trump was reluctant to pay many of his legal obligations.

    There is also a tape in which Cohen argues with Trump that he should reimburse the National Enquirer for its payment to the other woman, and Trump wants to simply write a check, and Michael Cohen says no no – and that Allen Weisselberg has figured out just how to do it. (In the end, the National Enquirer’s lawyers decided it was better for the National Enquirer to just absorb the loss)

    And Michael Cohen argues that the National Enquirer (actually its parent company) should be reimbursed because otherwise this – and maybe some other unflattering Trump stories – might come out later if David Pecker were to be hit by a truck.

    Now when is Cohen arguing to Trump that Pecker might be hit by a truck? After the election! This proves that, at least according to Michael Cohen’s thinking, Trump’s motive for concealing the 2006/7 events, or at least sending so much money to do so, was NOT its effect on the Election of 2016. Unless you want to say he was afraid of what Stormy Daniels might say because of the election, but when it comes to Karen McDougal, he thought the electon was taken care of, but had other worries

    Sammy Finkelman (1d215a)

  6. The best argument against this case is that Trump could win. If he does, his “persecution” claim will have legs and this will be an own goal by his opponents.

    Kevin M (a9545f)

  7. Here is the Wall Street Journal argument against this prosecution:

    https://www.wsj.com/articles/donald-trump-trial-alvin-bragg-juan-merchan-stormy-daniels-dcc214a1

    The Trump Trial Spectacle Begins

    Manhattan DA Alvin Bragg’s hush-money case is a legal stretch that should not have been brought.

    ….The facts are these: Ms. Daniels has said that in 2006 she and Mr. Trump had one, er, intimate encounter. A decade later, as the 2016 election neared, Mr. Trump’s fixer Michael Cohen paid Ms. Daniels $130,000 to keep quiet. A nondisclosure agreement isn’t illegal. Mr. Bragg’s complaint is about the paperwork. Mr. Cohen was reimbursed through 2017 via a monthly retainer “disguised as a payment for legal services,” the DA said. He padded his indictment by separately charging each invoice, check and ledger entry to get 34 counts.

    Falsifying business records in New York can be a misdemeanor, but the statute of limitations on that has expired. Mr. Bragg therefore must charge felonies, which under New York law means showing that Mr. Trump cooked the books with “intent to commit another crime or to aid or conceal the commission thereof.”

    Even that requires special dispensation. The 2017 payments are outside the five-year felony window, but state judge Juan Merchan ruled that Mr. Bragg enjoys an extra year of leeway after emergency Covid-19 executive orders stopped the clock on legal cases.

    The crucial question is Mr. Trump’s alleged second crime. To bring bookkeeping felonies, Mr. Bragg needs an underlying offense that Mr. Trump intended to commit or conceal, even if it isn’t prosecuted.

    Mr. Bragg didn’t charge the second crime and didn’t clearly identify it in last year’s indictment. His court filings since have advanced four theories of what that crime might be, three of which the judge blessed.

    One theory is that the Stormy payoff was effectively a donation to Mr. Trump’s campaign, in excess of federal limits. Two, he says the payment broke a New York law against promoting a candidate “by unlawful means.” Yet this loops back to No 1., since the “unlawful means,” Mr. Bragg said, include busting the federal donation cap.

    It’s a dubious argument. Is paying a mistress a bona fide campaign expense? Brad Smith, a former member of the Federal Election Commission, has argued persuasively that the answer is no.

    “The underlying obligation wasn’t created by the act of campaigning,” Mr. Smith wrote in these pages last year. Had Mr. Trump wired campaign funds to Stormy, prosecutors might now be accusing him of illegally converting donor money to personal use. On appeal this could go all the way to the Supreme Court.

    The DA’s third theory: Since the reimbursement was treated as payment for services, the amount was “grossed up” to ensure Mr. Cohen would “be left whole after paying approximately 50% in income taxes,” as Mr. Bragg told the court. Filing a false return, he added, is tax fraud. But it’s an odd kind of fraud if the result was Mr. Cohen overpaying taxes on illusory income. Perhaps such a distinction is legally irrelevant, as the judge suggested, though it matters to whether the case is worth bringing.

    ***
    Such problems help explain why this case wasn’t pursued by the feds or Mr. Bragg’s predecessor….

    No. they didn’t have an opportunity to bring a falsifying of records case. That’s a state crime. Maybe obstruction but for something to be obstruction doesn’t someone have to have a reasonable expectation that an investigator will look at the records?

    It was the campaign finance law violation that nobody wanted to prosecute, outside of a mutually agreed upon plea bargain.

    Now I know Patterico has argued that Trump could cover up somebody else’s crime. But, at the time, in 2016, nobody, not even Michael Cohen, thought that what he did was a crime. At least not a crime that could be attributed to Trump. Because it took him a long time to come up with something he could accuse Trump of.

    Sammy Finkelman (1d215a)

  8. Observer (af973a) — 4/15/2024 @ 8:16 am

    if Trump had reported the payments to the FEC as campaign expenses, would the FEC have accepted them as such, or would Trump have faced possible federal prosecution for campaign finance violations?

    Yes,but it possibly was a crime for Michael Cohen to advance the money because from his point of view, he had no other motive but the ekection.

    If he is to be believed except that I do think he had a personal reason because he probably was involved in setting up the assignations behind Trump’s back. Trump didn’t ask for Stormy Daniels to make the initial approach to him and he thought Karen McDougal was a prostitute. According to their stories, except that Stormy Daniels probably thought the man who requested she go to his room was sent by Trump.

    but not to pay for the suit that you would wear for the debate

    If you keep the suit.

    Sammy Finkelman (1d215a)

  9. Are we really worried about Trump losing a PR battle because of the number of counts? Doesn’t seem material here. Trump can hold a press conference and talk at length about how unfair the prosecution is…and have it amplified and disseminated by Talk radio, Fox News and all of its guests, NRO, and blogs across the country…whether it’s true or not.

    It’s likely that his deception does not work if Trump only writes one check. So it was an important element of the crime for him to break it up into eleven separate check payments followed by separate falsifications of business records. If I break into your house every Friday morning to steal one sock a day until I have 6 pairs of your socks, should I get charged for 12 separate burglaries or just one…because I could have taken the 6 pairs during the first burglary? It would seem that each month in Trump’s case or each week in mine, we made a conscientious decision to commit the same crime. I’m ok with the charges reflecting that….and sentencing taking circumstances into account.

    AJ_Liberty (ec7f74)

  10. Here’s the central counter argument…

    The DNC/Hillary Clinton campaign lied about the funding of the Steel Dossier, there were no criminal charges or media calls for accountability.

    But, hey, must be nice to be a Democrat in DC.

    But Trump’s NDA, buttressed by weak “falsifications of business records” allegations gets the book thrown at him?

    I don’t want to hear from anyone complaining of Trump’s persecution claims.

    whembly (86df54)

  11. The difference with the Steele dossier is that it was not argued that the campaign funding it was itself a crime. Now there was campaign recordkeeping but they specialized in characterizing everything as Legal fees. Legal fees are legal fees. Maybe that’s skirting the law.

    Sammy FInkelman (1d215a)

  12. Here is a simple thought experiment that undercuts the argument that this case against Trump is legally sound: if Trump had reported the payments to the FEC as campaign expenses, would the FEC have accepted them as such, or would Trump have faced possible federal prosecution for campaign finance violations?

    Since the dollar amounts far exceeded the donation threshold ($2,700) they would have been a campaign finance violation.

    Rip Murdock (8e7ea7)

  13. The DNC/Hillary Clinton campaign lied about the funding of the Steel Dossier, there were no criminal charges or media calls for accountability.

    Did the Hillary campaign misrepresent the purpose of the Steele dossier to the FEC, or just the public? The former would have been a crime, the latter not so much.

    Rip Murdock (047daf)

  14. If I break into your house every Friday morning to steal one sock a day until I have 6 pairs of your socks, should I get charged for 12 separate burglaries or just one…because I could have taken the 6 pairs during the first burglary?

    This is again different as it is separate acts that each need to be proven individually. It might be that someone else broke in on Tuesday. In the hush money case, it is identical acts between identical people with identical records. It is not possible to be convicted of only some of them — the thing is a gestalt. If it had been 5 fewer installments or 5 more nothing would change (except the number of counts apparently).

    Kevin M (a9545f)

  15. @12

    Did the Hillary campaign misrepresent the purpose of the Steele dossier to the FEC, or just the public? The former would have been a crime, the latter not so much.

    Rip Murdock (047daf) — 4/15/2024 @ 12:29 pm

    Yes, the former.

    But it has to be tried in DC…and good luck getting a case through.

    whembly (86df54)

  16. From former chairman of the FEC:
    https://thefederalist.com/2024/04/15/trumps-strongest-new-york-defense-has-nothing-to-do-with-alvin-bragg-or-judge-merchan/


    That’s because, in campaign finance law, these types of expenditures are known as “personal use.” FECA specifically prohibits the conversion of campaign funds to personal use, defined as any expenditure “used to fulfill any commitment, obligation, or expense that would exist irrespective of the candidate’s election campaign.

    The Federal Election Commission’s regulations emphasize that the standard for determining if something is “for the purpose of influencing an election” is an objective one. It is the nature of the expense, not the subjective intent of the candidate in making the expense, that determines if something is a legitimate campaign expense or an illegal “personal use.”

    Closer to home, a business man/candidate could not use campaign funds to pay bonuses to employees, even if his primary purpose was to burnish his image as a benevolent employer to enhance his electoral prospects. A candidate cannot use campaign funds to pay a lawyer to seal divorce records or settle lawsuits against companies he might own, even if the primary purpose is to keep information out of the limelight “for the purpose of influencing the election.”

    This approach is common sense. Does anyone really think a candidate should be able to use campaign funds to settle lawsuits, or threatened lawsuits, arising from activities that occurred long before his candidacy? It’s stressful being a candidate, and a little relaxation may make the candidate more effective on the stump. Does that mean your campaign contribution should pay for a candidate massage? How about a country club membership, or tickets to the Super Bowl (after all, the candidate might take along a potential donor)?

    All of these things should be personal use, despite the candidate deciding to make the purchase or expenditure because it might help with the campaign. If they are not personal use, however, then they can be paid with campaign funds. Is that what we want? Campaign donors buying the candidate club memberships, tickets to athletic events, and expensive new wardrobes? Or paying for nondisclosure agreements to settle civil matters?

    Herein lies the most frightening part of this prosecution: Had Trump made these payments with campaign funds, it seems a near certainty he would now be facing criminal charges for a knowing and willful diversion of campaign funds to pay personal obligations. If Bragg’s prosecution is successful, it will mean a candidate can use campaign funds to pay almost any obligation that, the candidate might argue, would benefit his candidacy. Perhaps worse, zealous prosecutors could get a candidate coming or going — falsification of records if campaign funds are not used, and illegal personal use if campaign funds are used.

    I don’t see how any conviction would survive if Trump is convicted, as on a technical matter, the hook the Bragg uses to advance the normal business documentation misdemeanor to a felony isn’t sound.

    whembly (86df54)

  17. From former chairman of the FEC

    As I understand it, he would not be allowed to testify as this matter has been decided already by the judge.

    Kevin M (a9545f)

  18. If Bragg’s prosecution is successful, it will mean a candidate can use campaign funds to pay almost any obligation that, the candidate might argue, would benefit his candidacy.

    Heard from Melania: “New clothes!”

    Kevin M (a9545f)

  19. All trials should be streamed. It’s what “Open Court” means in the 21st century.

    Kevin M (a9545f)

  20. whembly (#16) —

    You remind me why I voted 3rd party in 2016, and why I still don’t regret that decision.

    Appalled (3914de)

  21. @20

    whembly (#16) —

    You remind me why I voted 3rd party in 2016, and why I still don’t regret that decision.

    Appalled (3914de) — 4/15/2024 @ 1:18 pm

    That’s perfectly fine.

    I was just pointing out that Bragg’s trying to enhance a NYS misdemeanor law based on an uncharged federal charge is legally dubious. Bragg may succeed in getting a conviction, but I doubt it’ll succeed on appeal. But, if you Bragg (and NeverTrumper), that’s the point.

    whembly (86df54)

  22. Judge thomas no show and court today. The jury pool will decide if any trump supporters get on the jury not so called evidence will decide the case and pretending otherwise is part of the game.

    asset (41cce7)

  23. Per Maya Wiley:

    “You can be acquitted of the underlying crime that elevates misdemeanor falsification of business records to a felony, and STILL be found guilty of felony falsification. The underlying crime is only there to prove intent.”

    Sam G (74da99)

  24. “The underlying crime is only there to prove intent.”

    So, if there is a crime that is alleged to conceal a kidnapping, but are unable to show there was a kidnapping, the allegation alone enhances the sentence on the secondary crime? All they have to show is that if there had been a kidnapping, then my offense would have concealed it?

    I don’t think this is how it works.

    Kevin M (a9545f)

  25. Ans again, although I understand that no one wants to see themselves as a partisan willing to trade in propaganda, a lot of people lean that way when it comes to Trump.

    Kevin M (a9545f)

  26. Did the Hillary campaign misrepresent the purpose of the Steele dossier to the FEC, or just the public? The former would have been a crime, the latter not so much.

    Rip Murdock (047daf) — 4/15/2024 @ 12:29 pm

    Yes, the former.
    ………
    whembly (86df54) — 4/15/2024 @ 12:31 pm

    Now I recall.

    The Hillary campaign was fined $8,000 and the DNC $105,000 for “misreporting” the proper category of spending (legal services/consulting v. opposition research), but the campaign did not actively conceal the payments to influence the election (which is Bragg’s argument).

    Also, Bragg’s case doesn’t depend on violation of federal campaign finance laws; individuals have been prosecuted in NY for falsifying business records to conceal NY state election law violations.

    Rip Murdock (d2a2a8)

  27. Had Trump made these payments with campaign funds, it seems a near certainty he would now be facing criminal charges for a knowing and willful diversion of campaign funds to pay personal obligations.

    But Trump didn’t make them. Michael Cohen advanced the money. Why on earth would Trump ask him to do so, and then reimburse him? It makes even less sense than Michael Cohen paying the money on his own initiative.

    Sammy Finkelman (1d215a)

  28. But the second thing must be the truth and we are missing some key fact Michael Cohen has kept hidden.

    Sammy Finkelman (1d215a)

  29. The claim is that Michael Cohen was used to conceal the source. But it would not have been reported in time.

    Sammy Finkelman (1d215a)

  30. @24 it’s more like there is a kidnapping, one of the defendants is found not guilty of the actual kidnapping – but took part in covering it up by falsifying records. Thus the intent of the falsification was in support of the kidnapping, making the falsification of records a felony.

    Sam G (74da99)

  31. The reasons the DOJ did not prosecute Trump after Cohen admitted (in 2018) to making the hush money payments, Trump had became President, and was therefore under DOJ policy he was immune from indictment.

    Rip Murdock (d2a2a8)

  32. According to comments over at Political Betting (one citing Maggie Haberman), Trump has been nodding off during the trial.

    I’m not sure what to make of that, but it could be a sign of poor health.

    Jim Miller (0cc49d)

  33. Thus the intent of the falsification was in support of the kidnapping, making the falsification of records a felony.

    Also being an accomplice to a kidnapping, which is already a felony. Try again. Either Trump committed a campaign finance violation, or he did not. I guess you could claim that Cohen committed the violation, but if Trump did not then you have to show that Trump was doing all this to hide Cohen’s crime.

    As if Trump could care.

    Kevin M (a9545f)

  34. It is a sign of being two months shy of 77 years old.

    All that stuff he’s been saying about Biden? He knows it personally. I don’t see him as having more than four hours’ worth of energy and alertness per day.

    nk (4542d0)

  35. According to comments over at Political Betting (one citing Maggie Haberman), Trump has been nodding off during the trial.

    I am pretty sure that it’s boring as all get out for a man with an attention span shorter than this sentence.

    Kevin M (a9545f)

  36. Pardon me. Two months shy of being 78 years old.

    nk (4542d0)

  37. @31: I find that entire line of argument unpersuasive. A failure to prosecute means nothing other than they declined at that moment to prosecute. They get one bite at the apple, but they get to choose when to bite.

    Kevin M (a9545f)

  38. @33 note that you selected kidnapping as the example, not I. I think he did commit such a violation, and was only spared indictment because he was POTUS at the time.

    Then again, the point of the state law is that falsification of business records is an felony if it was done to support another crime – whether done by the accused or another makes no difference.

    SamG (4e6c22)

  39. According to comments over at Political Betting (one citing Maggie Haberman), Trump has been nodding off during the trial.

    I’m not sure what to make of that, but it could be a sign of poor health.

    Jim Miller (0cc49d) — 4/15/2024 @ 4:10 pm

    Most news media are reporting the same thing.

    I’m sure jury selection must be terminally boring, especially for someone who has to sit through it without saying a word.

    Rip Murdock (d2a2a8)

  40. @31: I find that entire line of argument unpersuasive (the fact that Trump was immune from prosecution in 2018.)

    LOL! I would have liked to have seen a US Attorney try. It would have been shot down in a second by Main Justice. The DOJ has held for more than 50 years that a sitting President cannot be investigated, let along indicted.

    Rip Murdock (d2a2a8)

  41. Re the WSJ editorial:

    Two, he says the payment broke a New York law against promoting a candidate “by unlawful means.” Yet this loops back to No 1., since the “unlawful means,” Mr. Bragg said, include busting the federal donation cap.

    The word “include” is doing so much work there that its spine is likely to snap. The unlawful means include other things too, as I explained in my latest Substack.

    As for Brad Smith, his opinion is legally irrelevant and Trump may not argue it to the jury.

    “But, at the time, in 2016, nobody, not even Michael Cohen, thought that what he did was a crime.”

    “Nobody”? Your statement is so badly exaggerated as to make it false.

    Patterico (c1e977)

  42. The DOJ has held for more than 50 years that a sitting President cannot be investigated, let along indicted.

    You’re right that DOJ says a sitting president cannot be indicted, but the opinion you link not only does not say a sitting president cannot be investigated, it says the opposite. Read footnote 36 at page 257.

    Patterico (c1e977)

  43. Per Maya Wiley:

    “You can be acquitted of the underlying crime that elevates misdemeanor falsification of business records to a felony, and STILL be found guilty of felony falsification. The underlying crime is only there to prove intent.”

    If you read my Substack you would not have had to wait for Maya Wiley for that nugget of information. You could have learned it in August 2023:

    When the judge says that “[t]he People need not establish that Trump or any other person actually violated NYEL § 17-152 or FECA,” there are two aspects to this statement: one simple, and one mindboggling.

    The first aspect of the judge’s statement—a concept which I have argued before—is very straightforward and easy to understand: the prosecution doesn’t have to show that Trump himself committed a campaign finance violation (or any other crime) himself.

    The mindboggling aspect is the claim is the claim that the prosecution doesn’t have to show anyone else committed that other crime either.

    Tons of legal citations contained therein for the Kevin M’s and other skeptics.

    Patterico (63789d)

  44. I think my biggest problem with this case is that the judge has found all questions for the prosecution, leaving most of Trump’s defense for the appellate court. Maybe that kind of delayed outcome is Trump’s Karma.

    Kevin, it’s not true that the judge has ruled against Trump on every question. He has indeed ruled against Trump (appropriately) as to many bogus contentions. But he has prevented the government from pursuing one of the four theories of an underlying crime. He has ruled that the jury cannot see the Access Hollywood tape, although it can be described. And he has ruled that it is too prejudicial for prosecutors to reference the fact that Melania was pregnant while Trump was shtupping a porn star.

    I think Judge Merchan is a very good judge. He is tough but fair.

    Patterico (c1e977)

  45. The DNC/Hillary Clinton campaign lied about the funding of the Steel Dossier, there were no criminal charges or media calls for accountability.
    But, hey, must be nice to be a Democrat in DC.

    What’s the underlying crime?

    Paul Montagu (d52d7d)

  46. A failure to prosecute means nothing other than they declined at that moment to prosecute. They get one bite at the apple, but they get to choose when to bite.

    That’s where the whole “Statute of Limitations” comes in. You can’t wait until the time expires, which it did here.

    SaveFarris (8ab299)

  47. Lastly, this case infuriates not only people who love Trump, but many who do not. It is clearly a targeted prosecution, brought out of political animus, and the charges are jacked up on steroids. It is the kind of thing that will make people pull the lever for Trump even though they cannot stand the man.

    It’s STUPID.

    Kevin M (a9545f)

  48. It makes all the things that Trump says about the GA, DC and FL cases being targeted political persecution seem plausible. They are not of course, but first impressions are everything.

    Kevin M (a9545f)

  49. And he has ruled that it is too prejudicial for prosecutors to reference the fact that Melania was pregnant while Trump was shtupping a porn star.

    Particularly since it is not true. She had already given birth. But I’ve read this pregnant statement before,

    Sammy Finkelman (c2c77e)

  50. @48

    It makes all the things that Trump says about the GA, DC and FL cases being targeted political persecution seem plausible. They are not of course, but first impressions are everything.

    Kevin M (a9545f) — 4/15/2024 @ 7:35 pm

    That’s the point I’ve been trying to make.

    If you can’t easily convince the average joe/jane, even Trump voters, as to why Trump is being prosecuted, then these “witch hunt” persecution claims will always have legs.

    If you have to contort the laws in such obvious ways to “get Trump” (like the Bragg, DC and GA cases)… the “witch hunt” claims will persist.

    The only criminal case that puts Trump’s freedom at peril, is the documents case as it’s more of a “meat & potato” kind of a case. But, even then, the prosecution can’t escape the partisan bias as well (Biden and et. el gets kids treatment, but Trump gets the book thrown at him).

    These cases are obviously partisan in nature, as these prosecution cannot avoid it. Particularly that these cases were designed to be tried in the midst of the election, when they all could’ve been resolved in 2021/22.

    Jim Geraghty is even opining that such convictions from a perceived persecution may not even matter electorally at best for Trump (at worse, such persecution rally’s those outraged at such perceived persecutions):
    https://www.nationalreview.com/the-morning-jolt/would-a-trump-conviction-matter-in-this-election/

    whembly (86df54)

  51. If you can’t easily convince the average joe/jane, even Trump voters, as to why Trump is being prosecuted, then these “witch hunt” persecution claims will always have legs.

    With Trump voters.

    I am not good at talking cult members out of being cult members. I leave such quixotic ventures to others.

    Patterico (a43153)

  52. I am not good at talking cult members out of being cult members. I leave such quixotic ventures to others.

    I’m pretty sure that you’re mistaken here. There are almost certainly more persuadable voters as cultists. He got 75 million votes last time — please God don’t let there be 75 million cultists.

    It is these voters, who have grave doubts about the direction that Biden and his ilk want to take the country, who may become convinced that the “threat” posed by Donald Trump is just hyperventilating by the political class.

    A trial on what they regard as silly charges (or legal technicalities if you prefer), by a Deep Blue establishment may get them to discard ALL the charges against Trump as political. Certainly that is the message that Trump brings.

    That Trump’s cult believes something implicitly does not mean that the argument is ineffective with others. You may discard it as there is not much that Trump will say that you won’t treat as a lie, but that does not meant that hoi polloi will have the same reaction.

    Kevin M (a9545f)

  53. Fact: RCP poll average on direction of country:

    Right: 25%
    Wrong: 65%

    Pretty strong headwinds for Joe Biden. Only Trump could lose to him.

    Kevin M (a9545f)

  54. @51

    With Trump voters.

    I am not good at talking cult members out of being cult members. I leave such quixotic ventures to others.

    Patterico (a43153) — 4/16/2024 @ 8:16 am

    …are you really suggesting that all Trump voters are in a “cult”?

    whembly (86df54)

  55. There are cultists, there are people broken by partisanship, and then there are people who believe the system can constrain Trump’s worst instincts. I suspect some will move between the subsets based on where they get information. Of course there are other categories that will vote none of the above….but the point seemed to be those committed to some level to voting for Trump.

    I think only the “constrained” group might be worth engaging….but I would not be especially optimistic. With self pardons looming, I will be shocked if many experienced pros will gamble with jumping on the Trump train and administration. I think it will be either true believers or individuals desperate enough to gamble on the reputational risk. Either way, it’s tough to claim to be a conservative while gambling at this level.

    AJ_Liberty (5f05c3)

  56. OTOH, you have a Democrat who is openly calling for enacting the Progressive wish list — wealth taxes, confiscatory income taxes, banning gasoline and the whole Green agenda — all things that will become as impossible to undo as Obamacare is now.

    If it were not for Jan 6th, this election would be over; Biden is that bad.

    Kevin M (a9545f)

  57. …are you really suggesting that all Trump voters are in a “cult”?

    If the shoe fits

    Patterico (c8a2b8)


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