NY: Trump on Trial!

[Torie]

Lindsay Graham says it would blow up the country.

https://thehill.com/homenews/senate/3910819-graham-warns-trump-arrest-would-blow-up-our-country/

If there is an indictment, I hope that there is more behind it than I think there is. But just to expose, yet again, to the world that Graham is an attention whore circus act, does tend to tempt one to hope that it happens.

[Torie]

“What kind of person,” Mr. Trump wrote of Mr. Bragg, “can charge another person, in this case a former president of the United States, who got more votes than any sitting president in history, and leading candidate (by far!) for the Republican Party nomination, with a crime, when it is known by all that NO crime has been committed, & also that potential death & destruction in such a false charge could be catastrophic for our country?”

“Why & who would do such a thing? Only a degenerate psychopath that truely hates the USA!” the former president wrote.

https://www.nytimes.com/2023/03/24/us/politics/trump-bragg-indictment-protests.html

[Torie]

https://www.rove.com/article/3-23-23-wsj

I just read Karl Rove's article, "Trump’s Indictment Won’t Win Him Votes"

Usually, Rove is the most astute political commentator whom I've read / listened to. But this article is weak.

The main reason, he says, that Trump's indictment won't win him votes is that "if the charge is filed and the former president doesn’t plead guilty, the case will be heard. With Mr. Trump running again, there will be political fallout, especially if more indictments follow."

And Rove also argues that Trump made a lose-lose mistake by calling on his supporters to "PROTEST! PROTEST! PROTEST!"

But in this same article, Rove admits that Trump is now front-and-center on mainstream news whereas he was, for a while, an afterthought. He acknowledges that Trump has raised a ton of money since the story broke. He explains that the indictment has put the other GOP primary hopefuls in a tough spot, as they struggle to respond to questions about Trump's indictment. All of these details would indicate that the indictment is helping Trump, contrary to the title of Rove's article

I think this is one of those csaes where two things can be true: the pending indictment (let's not forget that it hasn't happened yet) may be helping Trump among GOP voters *right now* for the reasons you mentioned.  But once things become more serious, it will hurt him in the future -- possibly among GOP voters, but definitely in the general electorate.

Not if the trial court on motion before trial, or on motion after trial, for a bench finding of not guilty notwithstanding the verdict, throws out the case, or if Trump is found not guilty by the jury, or an appellate court overturns the verdict. Those are real possibilities. This is a very problematical case. Based on what I know to date, it should not be brought. And it may not be brought. I assume the DA is competent and is pondering all of this carefully. He may very much want to bag Trump, but if his bullets turn out to be blanks, it will all backfire in his face, while turbo-charging Trump.

[Torie]

https://www.nationalreview.com/the-weekend-jolt/the-trump-desantis-fight-is-going-to-be-hideous/

 “Imagine the perfervid rantings in a padded cell of a mental patient off his lithium and you’re mostly there” is how Jeffrey Blehar scene-sets Trump’s early take on the Bragg rumblings."

Sounds like something I would pound out on the keyboard actually.

[Torie]

Andrew Cuomo chimes in. Not sure that this is the best route to ramp up his Senate campaign but whatever.


https://www.aol.com/news/andrew-cuomo-slams-ny-georgia-131629422.html

[Torie]

The grand jury keeps getting more an more incompetent, yet an indictment is supposed to "hurt" him.

What the hell are you even talking about? What "incompetence" are you referring to?

All that happened is Trump claimed, out of the blue, that he was going to be arrested, and then he wasn't.

This times 10.

I'm going to tell you personally as a former full-time grand jury prosecutor. If a prosecutor asks a grand jury to indict a defendant on criminal charges a b and c, they will literally more than 99% of the time get the indictment they ask for.  Now, maybe this might be an exception because it is such an incredibly complex and high profile case, but I will surely bet you the only reason there is no indictment issued at this time is because Bragg hasn't asked for one.

So the only way Trump isn't getting indicted is if Bragg decides not to request one. Anyone want to bet the over / under on that?

Actually on the grand jury I was on, we refused to indict except on drug possession, but not aggravated assault and battery. I told the DA whom I coincidentally had interned with not long before, what a cf it was, and he agreed with me. It's lonely at the top. 

It is hard to separate Bragg from the grand jury. If Bragg gets vibes that the grand jury is restless, he might step back. But of course his major motivation is to avoid an indictment where the prosecution thereafter fails. hat would be an utter disaster as I am sure Bragg appreciates.

Personally, I think the case sucks as a legal matter, and from what I know at present would reverse any conviction on appeal if on the appeals court. Granted there are things that the DA might know that the press does not know.

The Trump antics have less impact than a fart in a windstorm. No question about that. His circus act has a rather limited appeal.

[Torie]

Literally just Stormy Daniels, though? This is like getting Al Capone on tax evasion.

It's honestly probably the least illegal thing he's ever done

From what I read the most slam dunk case against him is the classified documents case.
Then the Georgia case, and the rest follow.

Yeah, the documents case is one rap that when convicted if indicted, will not be reversed in appeal.

[Torie]

One flaw in the irrespective defense, is that the hush money was paid coincident with the election, while risk of the exposure into the public square of the alleged Trump tryst had been pending for years. If Trump paid the hush money to protect his marriage or reputation irrespective of the campaign, why did he wait to pay it until it was campaign season? An answer will need to be provided that seems creditable to explain away the long hiatus. The irrespective issue is not a silver bullet defense ala John Edwards' love child hush money payment.

Did the WSJ address the above issue?

The best defense is the statute of limitations. The tolling of it while Trump was out of state given that his whereabouts was known at all times, I just don't think will fly, particularly on equitable grounds. Bragg is going to be very embarrassed if he gets blown out on the SOL issue, and an appellate court might take that up prior to trial, since it moots the whole case right out of the box.

[Torie]

One flaw in the irrespective defense, is that the hush money was paid coincident with the election, while risk of the exposure into the public square of the alleged Trump tryst had been pending for years. If Trump paid the hush money to protect his marriage or reputation irrespective of the campaign, why did he wait to pay it until it was campaign season? An answer will need to be provided that seems creditable to explain away the long hiatus. The irrespective issue is not a silver bullet defense ala John Edwards' love child hush money payment.

Did the WSJ address the above issue?

Go back to the analogy in the WSJ article. Say I pay $4k for a nice suit right before the debates because I want to look good for voters  By your argument, you think it would be a campaign expenditure because “why’d you wait until right before the debates to buy that nice $4k suit brah??? You could have bought that nice suit years ago. An answer will need to be provided that seems creditable to explain away the timing of buying it right before debates. “ But campaign finance laws are objective. The expense has to have been created by the campaign itself, like the need to pay for campaign staff. Candidates have always been responsible for buying their own clothes; they cannot use campaign funds

The article also mentions that, by the DA’s alleged thinking, the payment was a campaign expense, so Trump supposedly violated by using his personal money and not reporting the payment as campaign expense. So by the DA’s thinking, Trump should have used campaign funds to pay the $130k … do you seriously think candidates should use campaign funds to pay settlement / hush money, and do you seriously think the FEC has that intent in their statute?

No, the DA does not expect Trump to use campaign funds rather than his own funds for the hush money. he just thinks that in either event it should have been reported as a campaign expenditure. I stand by what I said as to the irrespective defense being problematical pending Trump having an adequate explanation.

[Torie]

One flaw in the irrespective defense, is that the hush money was paid coincident with the election, while risk of the exposure into the public square of the alleged Trump tryst had been pending for years. If Trump paid the hush money to protect his marriage or reputation irrespective of the campaign, why did he wait to pay it until it was campaign season? An answer will need to be provided that seems creditable to explain away the long hiatus. The irrespective issue is not a silver bullet defense ala John Edwards' love child hush money payment.

Did the WSJ address the above issue?

The best defense is the statute of limitations. The tolling of it while Trump was out of state given that his whereabouts was known at all times, I just don't think will fly, particularly on equitable grounds. Bragg is going to be very embarrassed if he gets blown out on the SOL issue, and an appellate court might take that up prior to trial, since it moots the whole case right out of the box.

But doesn’t Bragg in turn have the counter argument about the judicial systems views about charging a president with a crime meant he had to wait until Trump left?

It that tolls the statute, OK, but I doubt that it does.

The premise seems false as well.

https://www.reuters.com/article/us-usa-trump-russia-indictment-explainer/can-a-sitting-u-s-president-face-criminal-charges-idUSKCN1QF1D3

[Torie]

One flaw in the irrespective defense, is that the hush money was paid coincident with the election, while risk of the exposure into the public square of the alleged Trump tryst had been pending for years. If Trump paid the hush money to protect his marriage or reputation irrespective of the campaign, why did he wait to pay it until it was campaign season? An answer will need to be provided that seems creditable to explain away the long hiatus. The irrespective issue is not a silver bullet defense ala John Edwards' love child hush money payment.

Did the WSJ address the above issue?

Go back to the analogy in the WSJ article. Say I pay $4k for a nice suit right before the debates because I want to look good for voters  By your argument, you think it would be a campaign expenditure because “why’d you wait until right before the debates to buy that nice $4k suit brah??? You could have bought that nice suit years ago. An answer will need to be provided that seems creditable to explain away the timing of buying it right before debates. “ But campaign finance laws are objective. The expense has to have been created by the campaign itself, like the need to pay for campaign staff. Candidates have always been responsible for buying their own clothes; they cannot use campaign funds

The article also mentions that, by the DA’s alleged thinking, the payment was a campaign expense, so Trump supposedly violated by using his personal money and not reporting the payment as campaign expense. So by the DA’s thinking, Trump should have used campaign funds to pay the $130k … do you seriously think candidates should use campaign funds to pay settlement / hush money, and do you seriously think the FEC has that intent in their statute?

No, the DA does not expect Trump to use campaign funds rather than his own funds for the hush money. he just thinks that in either event it should have been reported as a campaign expenditure. I stand by what I said as to the irrespective defense being problematical pending Trump having an adequate explanation.

Bolded are contradictory. It’s either a campaign expense or a personal expense. Pick one or the other, not both

If it should have been reported as a campaign expense, then your argument is that Trump (or any candidate) can legally pay hush money with campaign donations

If it cannot be paid with campaign donations, then it’s not a campaign expense; it falls under personal use

https://www.fec.gov/help-candidates-and-committees/making-disbursements/personal-use/

If a candidate cuts checks to help his campaign, and for no other primary reason, it is a campaign expense. KISS.

This will all be sorted out soon, unless the running on the SOL moots the case first. Be patient.

[Torie]

The legal standard is not whether the expense was meant to influence the campaign. The legal standard is whether the expense was created by the campaign and would have been objectively paid irrespective of the campaign. You might want a different standard (eg - “I don’t care about the suit analogy”), but what you want isn’t a consideration

The legal standard is would the payment have been made but for the campaign. To me it is clear it would not have been. That it was intended to influence the campaign is part of why I conclude that. The other part of why I conclude that is he turned he down before.

So if the $130k payment is, as you claim, a campaign finance contribution, then would Trump have been within his rights to use campaign donor funds to issue the payment (as opposed to his personal funds)? That means money that was given to him by his supporters and fundraisers - do you think Trump could have legally used that money to pay the $130k?

I'm not sure the payment is legal at all without reporting it somewhere, even if there was no campaign. For example, you can't give somebody more than $16,000 in a year as a gift without reporting it to the IRS. There could been multiple laws he's violated here. So not an expert on this, but no I don't think he could have paid it out of campaign donor funds and done no reporting on the payment.

I think the fine for not issuing a 1099 to Stormy Daniels is $50.00. If people went to jail for not issuing 1099's, the government would probably get another trillion bucks in revenue from bringing the underground economy above ground. Independent contractors are tax cheat city.

[Torie]

The conversation is now going around in circles. I am not going to repeat what I typed above, with which you did not engage (I am sure you disagree on that), so we are done.

The idea here is not to persuade people, an utterly futile endeavor in general, but to provide information and arguments that other Forumites may not have been exposed to.

If you had been exposed to this already, then my value to you is the null set. I get it.

[Torie]

https://twitter.com/RonFilipkowski/status/1642570273739112448

The next issue is why did Cy Vance allow Barr to deflect an investigation if he thought it was meritorious? I notice that Cy does not say that Barr told him that the local DA pursuing it would interfere in the DOJ's investigation. If Barr had said that, and there was no investigation, then Barr was dissembling. If.

[Torie]

Doesn't matter what their policies are about who they can charge when. The statute of limitations makes no such exceptions for that. Trump can be charge for this because the crime was less than 5 years ago.

From what I read, Cohen was reimbursed in 2018 and that's when the payment got into the books.

Nope, I don’t think so. Even if the reimbursement were in 2018 rather than 2016 (I have not read that was the case anywhere, and why would Cohen carry the expense for 2 years?), Trump certainly had agreed to reimburse Cohen in 2016, so in that sense it was a debt to Cohen from Trump that was incurred coincident with the campaign, and not reported, and thus a campaign finance violation. So, Bragg is left with the tolling claim while Trump was out of state, or the even more problematical theory that the mere DOJ policy of not indicting sitting Presidents tolls the statute. Goof luck with that. Even the left-wing Nation is not buying that one. Bragg’s role model appears to be Icarus.

https://www.thenation.com/article/politics/trump-indictment-bragg-legal-case/

[Torie]

Nope, I don’t think so. Even if the reimbursement were in 2018 rather than 2016 (I have not read that was the case anywhere, and why would Cohen carry the expense for 2 years?), Trump certainly had agreed to reimburse Cohen in 2016, so in that sense it was a debt to Cohen from Trump that was incurred coincident with the campaign, and not reported, and thus a campaign finance violation. So, Bragg is left with the tolling claim while Trump was out of state, or the even more problematical theory that the mere DOJ policy of not indicting sitting Presidents tolls the statute. Goof luck with that. Even the left-wing Nation is not buying that one. Bragg’s role model appears to be Icarus.

https://www.thenation.com/article/politics/trump-indictment-bragg-legal-case/

You like Andrew McCarthy right? He argued it could be within the statute of limitations.

https://www.nationalreview.com/corner/imminent-trump-indictment-and-the-statute-of-limitations/

Last payment was late 2017 btw.

Yes, and it is a good article on the SOL issue.   However given the timing of the hush money payment, it does seem a stretch that it was not campaign related. Even if Daniels asked for the money previously, if, it was not given until right before the election per McCarthy's article.

"The hush money arrangement executed for Trump by Michael Cohen (they’ve both acknowledged it after previously denying it) happened just before Election Day in 2016 — i.e., over six years ago."

The NYT brings up the novelty of it all. But selective prosecutions are not themselves illegal, even if problematical from a policy standpoint.

"According to legal experts, New York prosecutors have never before combined the falsifying business records charge with a violation of state election law in a case involving a presidential election, or any federal campaign. Because this is uncharted territory, it is possible that a judge could throw it out or reduce the felony charge to a misdemeanor."

[Torie]

I bought our Accura from one of the Mike Piazza car dealerships in the Philly area because it was 5K cheaper than anywhere else.

[Torie]

Trump is apparently moving on to a new lead lawyer, his current one being characterized as a dumb loudmouth.

https://www.nationalreview.com/the-morning-jolt/trumps-surrender-in-new-york-to-launch-gop-engulfing-melodrama/

[Torie]

https://www.cnn.com/2023/04/03/politics/cnn-poll-trump-indictment/index.html

[Torie]

If the statute of limitations is 5 years, the last date I see in the indictment is December, 2017, in the 34th and last count, so that is more than 5 years ago. The idiot reporters of course did not ask Bragg the most salient question of all. The WAPO coverage did say that Cohen said Trump said to try to delay the hush money payment until after the election, which is good evidence that the hush money was all about the election, rather than family.

"THIRTY-FOURTH COUNT: AND THE GRAND JURY AFORESAID, by this indictment, further accuses the defendant of the crime of FALSIFYING BUSINESS RECORDS IN THE FIRST DEGREE, in violation of Penal Law §175.10, committed as follows: The defendant, in the County of New York and elsewhere, on or about December 5, 2017, with intent to defraud and intent to commit another crime and aid and conceal the commission thereof, made and caused a false entry in the business records of an enterprise, to wit, a Donald J. ... ."

So the indictment based on my quick scan seems to me to be fatally flawed right out of the box. Obviously as a non crimbo lawyer, I am missing something.

[Torie]

The statute of limitations is 5 years and the latest date mentioned is December 5, 2017.

The bookkeeping extends into 2018 which is when the clock starts.

If so, why was that not alleged in the indictment?

[Torie]

No clue.

Here is a bit more to put on the pile. Did Covid and Andrew Cuomo end up tanking the Donald?

https://deadline.com/2023/04/trump-indictment-prison-details-stormy-daniels-alvin-bragg-1235317833/

“Though the statute of limitations on felonies in the Empire State is usually five years, because Trump was in Washington D.C. during his White House term and formally became a Sunshine State resident afterwards, a pause was put in place. Also, during the height of the Covid-19 pandemic, then Empire Stare Governor Andrew Cuomo hit the halt button on the statute.”

This paragraph retreads the POTUS pause and out of state theories that don’t impress me much at all, but the NYS law pausing the running of the SOL during Covid is a new angle on the matter not previously reported.

"CNN also mentioned that the statue of limitation for crimes in New York was essentially paused for one year during the pandemic by Cuomo, so that may have something to do with it as well."

If true, that explains everything perhaps.

[Torie]

Harold, Harold, the mantra is presumed innocent. So sad.

[Torie]

Well, another issue (yeah, it is like a law school exam, I wonder how Dule would do), is the issue of whether a state NYS statute of limitations on a state law can be extended based on the cover up involving a federal law. Should NYS be taking cognizance of “foreign” laws as to which it has no specific interest?  

https://www.vox.com/politics/2023/4/4/23648390/trump-indictment-supreme-court-stormy-daniels-manhattan-alvin-bragg

The issue is one of first impression in NYS.

And would Dule spot the SCOTUS “rule of lenity” issue? Yet another uber esoteric issue to
spot; f*uck, this exam is a bit*h.

“The Supreme Court has long held, under a doctrine known as the “rule of lenity,” that “fair warning should be given to the world, in language that the common world will understand, of what the law intends to do if a certain line is passed.” Thus, when the meaning of a criminal statute is unclear, the Constitution sometimes requires that statute to be read narrowly because an unclear criminal law did not give potential defendants “fair warning” that their conduct was illegal.”

After spotting the issue of course, the next hurdle is to weigh the merits. The “correct” answer of course is that the gravamen of the lenity rule arises from equitable principles, not legal ones (yes I know this is where we lose all the laypeople, bye folks), and there is no "fair notice" issue, because Trump’s escape hatch is the statute of limitations. Trump certainly had fair notice that if caught in 2 years as to his multiple frauds, he’s done.  So, Trump had fair notice that what he did was unlawful as and when he did it. And thus, the concealment.  Equity here if it exists is not on this planet, and probably nowhere in this universe.

In this case, what happens at the appellate level in NYS (the intermediate court, not the highest court, called the Court of Appeals in NYS), really matters. Given the politics, and a 3-3 court with a vacancy, the high state court taking the case and overturning it, would be very bad optics, on such a highly technical issue.

[Torie]

It's time to get back to the case at hand, after an interruption in the usual programming.

One major problem with the Bragg case is mixing and matching state and federal law. Using purported federal violations to extend the SOL for state violations causes considerable skepticism in elite legal circles. But now a new angle is the state bookkeeping fraud was to facilitate state tax fraud, state on state rather than state on federal.

The NYT article does not get very far in the weeds on this, so indulge me while I speculate a bit. Trump seemed to take a phony tax deduction by converting a non-deductible hush money payment into deductible legal services. Cohen converted a non-taxable reimbursement payment into pseudo taxable income for himself, and thus the gross up payment. The state might have ended up net with more tax revenue, but it was attended by fraud and involved switching taxpayers.

Normally a state would not be too motivated to pursue tax fraud where it made money, but nothing about this case is normal. Wheels within wheels within wheels. The new theory is confusingly pleaded, perhaps by design, but soon the prosecution will have to lay its cards on the table, and spill its guts: 

“What is going to happen now is that the prosecutors are obligated to disclose things in discovery,” he said. “Defense counsel will learn in discovery the nature of the elections laws violations and the tax issues that were raised by Mr. Bragg in his statement of facts.”

https://www.nytimes.com/2023/04/04/us/politics/trump-bookkeeping-fraud-taxes.html