NY: Trump on Trial!

[Farmlands]

I don't see why people view this case as not bad for Trump? Seems pretty likely he'd be found guilty here.

It's the case that will have the most people thinking about whether what he's been charged with really should be a crime. Agreed that he will most likely be found guilty and receive some damage from it nonetheless.

[emailking]

Media needs to do a better job of framing it as election interference than just "hush money." Bragg is apparently going to push this hard in the trial so maybe the narrative will change there but I wouldn't count on it either way.

[Landslide Lyndon]

I don't see why people view this case as not bad for Trump? Seems pretty likely he'd be found guilty here.

Because the media always graded Trump on a curve. Despite all the enmity their relationship is symbiotic and both get something they want out of it.

[Fmr. Gov. NickG]

I don't see why people view this case as not bad for Trump? Seems pretty likely he'd be found guilty here.

Because he's actually not guilty under an intuitive, plain language interpretation of the campaign finance laws, even if he did everything the prosecutors allege he did.

I say this as someone who believes he should absolutely be convicted of basically everything he charged with in all his other trials, as well as all sorts of other criminal activity he hasn't yet been charged with.

[emailking]

I don't see why people view this case as not bad for Trump? Seems pretty likely he'd be found guilty here.

Because he's actually not guilty under an intuitive, plain language interpretation of the campaign finance laws, even if he did everything the prosecutors allege he did.

I say this as someone who believes he should absolutely be convicted of basically everything he charged with in all his other trials, as well as all sorts of other criminal activity he hasn't yet been charged with.

Just to clarify, even if true, that would make what he's charged with (falsifying business records) a misdemeanor instead of a felony. That might make it "not bad" for some people, but he definitely does not appear to be innocent of that based on what we know (but we'll see what his defense is).

[Fmr. Gov. NickG]

I don't see why people view this case as not bad for Trump? Seems pretty likely he'd be found guilty here.

Because he's actually not guilty under an intuitive, plain language interpretation of the campaign finance laws, even if he did everything the prosecutors allege he did.

I say this as someone who believes he should absolutely be convicted of basically everything he charged with in all his other trials, as well as all sorts of other criminal activity he hasn't yet been charged with.

Just to clarify, even if true, that would make what he's charged with (falsifying business records) a misdemeanor instead of a felony. That might make it "not bad" for some people, but he definitely does not appear to be innocent of that based on what we know (but we'll see what his defense is).

I agree he's definitely guilty of the misdemeanor version.
But can he even be convicted of the misdemeanor version? He's only charged with the felony counts, and I'm not even sure it would be possible to charge him with the misdemeanors given the statute of limitations. (Even setting SoL aside, it would be very, very rare to charge someone with a misdemeanor seven years after the offense took place.)

[emailking]

Hmm, that I'm not sure about.

[brucejoel99]

Note that the federal campaign finance analysis ultimately proved irrelevant to the misdemeanor/felony question, as filing each falsified business record after the first one was done in furtherance of the cover-up established by the first filing; i.e., it would've been chargeable only as a misdemeanor if he'd disguised Cohen's reimbursement payments by doubling them & falsely characterizing them as taxable income just the one time, but then filing the next 33 alike false business records thereby rendered all of them felonies.

[Fmr. Gov. NickG]

Note that the federal campaign finance analysis ultimately proved irrelevant to the misdemeanor/felony question, as filing each falsified business record after the first one was done in furtherance of the cover-up established by the first filing; i.e., it would've been chargeable only as a misdemeanor if he'd disguised Cohen's reimbursement payments by doubling them & falsely characterizing them as taxable income just the one time, but then filing the next 33 alike false business records thereby rendered all of them felonies.

I've never heard this argument before, nor has it been mentioned in any of the charging documents filed by Bragg.  And it would surprise me if the law were interpreted such that a misdemeanor could be classified as a felony merely because it's done in furtherance of another misdemeanor.  But I suppose we'll see at trial.

[brucejoel99]

Note that the federal campaign finance analysis ultimately proved irrelevant to the misdemeanor/felony question, as filing each falsified business record after the first one was done in furtherance of the cover-up established by the first filing; i.e., it would've been chargeable only as a misdemeanor if he'd disguised Cohen's reimbursement payments by doubling them & falsely characterizing them as taxable income just the one time, but then filing the next 33 alike false business records thereby rendered all of them felonies.

I've never heard this argument before, nor has it been mentioned in any of the charging documents filed by Bragg.  And it would surprise me if the law were interpreted such that a misdemeanor could be classified as a felony merely because it's done in furtherance of another misdemeanor.  But I suppose we'll see at trial.

https://twitter.com/rgoodlaw/status/1658797454551052288https://twitter.com/aweissmann_/status/1658934773056774145
Judge Merchan, per his opinion denying Trump's omnibus motions-to-dismiss, had no problem with this culpability argument from the DA.

[emailking]

So then 1 of them, the first one, has to be a misdemeanor only right? Or he's not charging that?

[brucejoel99]

So then 1 of them, the first one, has to be a misdemeanor only right? Or he's not charging that?

He's charging it: that first filing which could've been misdemeanor-only also itself became a felony upon being furthered by the filing of the 2nd false record.

[emailking]

The mathematician in me is recoiling at the circular logic there but ok lol.

The whole is greater than the sum of its parts I guess.

[GeorgiaModerate]

The mathematician in me is recoiling at the circular logic there but ok lol.

The whole is greater than the sum of its parts I guess.

I've seen the same phenomenon with classified information during my defense contractor days.  For example: multiple pieces of information that were individually unclassified, but when combined into a synthesis, the result was classified.  Or multiple pieces at a lower classification level, that when combined resulted in a higher level.

[brucejoel99]

The mathematician in me is recoiling at the circular logic there but ok lol.

The whole is greater than the sum of its parts I guess.

I've seen the same phenomenon with classified information during my defense contractor days.  For example: multiple pieces of information that were individually unclassified, but when combined into a synthesis, the result was classified.  Or multiple pieces at a lower classification level, that when combined resulted in a higher level.

In this case, it's because the intent to defraud & conceal said fraud (by way of following-up the filing of the first false business record with filing the 2nd-34th false business records) is establishable as the mens rea at a point in time prior to filing the first false business record.

[Fmr. Gov. NickG]

I still don’t think the argument holds up under a plain language interpretation of the statute.  The primary purpose of the first payment is to hide an affair. Hiding an affair not a crime.  The primary purpose of the second and all subsequent payments is also to hide an affair, not hide the first payment.  So also not a crime.

[Ljube]

The judge may even dismiss the case after all the evidence is heard.

[brucejoel99]

I still don’t think the argument holds up under a plain language interpretation of the statute.  The primary purpose of the first payment is to hide an affair. Hiding an affair not a crime.  The primary purpose of the second and all subsequent payments is also to hide an affair, not hide the first payment.  So also not a crime.

What legal bearing is that alleged primary purpose supposed to actually have here when, already under the relevant governing caselaw interpreting the statute, it doesn't actually even require proof of intent to violate any specific, particular crime? If Trump wants to argue to the jury that he hasn't factually been proven guilty of the charged offense, then he can argue what you're getting at here to the jury at trial so as to appeal to their sense of what maybe shouldn't be a crime, but as a question of NY criminal law, this is really already settled:

https://twitter.com/DanielRAlonso/status/1760896498420547826

[emailking]

The judge may even dismiss the case after all the evidence is heard.

That's true in any trial. After the prosecution rests, the defense always moves for a directed verdict on the grounds the state hasn't proved the case. It's rarely granted.

[Badger]

Hmm, that I'm not sure about.

Nor i. Has there been any articles or other analysis whether the misdemeanor versions of these statutes are indeed lesser included offenses of the felony versions? That's usually the case, but not necessarily

[Ljube]

Hmm, that I'm not sure about.

Nor i. Has there been any articles or other analysis whether the misdemeanor versions of these statutes are indeed lesser included offenses of the felony versions? That's usually the case, but not necessarily

That's a good question.

[Badger]

Hmm, that I'm not sure about.

Nor i. Has there been any articles or other analysis whether the misdemeanor versions of these statutes are indeed lesser included offenses of the felony versions? That's usually the case, but not necessarily

That's a good question.

Actually I came back here to delete my prior post, as subsequent posts for the one I quoted made by Bruce Joel and others here answered that question. Irrelevant for counts 2 through 32 at minimum, and the subsequent actions demonstrates sufficient state of mind for a felony conviction on count one. If the jury agrees that is.

[emailking]

I meant I wasn't sure if hypothetically they were going to be charged as misdemeanors vice felonies if it would be allowed at this point because of statute of limitations.

[Fmr. Gov. NickG]

I still don’t think the argument holds up under a plain language interpretation of the statute.  The primary purpose of the first payment is to hide an affair. Hiding an affair not a crime.  The primary purpose of the second and all subsequent payments is also to hide an affair, not hide the first payment.  So also not a crime.

What legal bearing is that alleged primary purpose supposed to actually have here when, already under the relevant governing caselaw interpreting the statute, it doesn't actually even require proof of intent to violate any specific, particular crime? If Trump wants to argue to the jury that he hasn't factually been proven guilty of the charged offense, then he can argue what you're getting at here to the jury at trial so as to appeal to their sense of what maybe shouldn't be a crime, but as a question of NY criminal law, this is really already settled:

https://twitter.com/DanielRAlonso/status/1760896498420547826

Is there any precedent for charging falsifying records as a felony when the underlying crime is a misdemeanor?

[brucejoel99]

I still don’t think the argument holds up under a plain language interpretation of the statute.  The primary purpose of the first payment is to hide an affair. Hiding an affair not a crime.  The primary purpose of the second and all subsequent payments is also to hide an affair, not hide the first payment.  So also not a crime.

What legal bearing is that alleged primary purpose supposed to actually have here when, already under the relevant governing caselaw interpreting the statute, it doesn't actually even require proof of intent to violate any specific, particular crime? If Trump wants to argue to the jury that he hasn't factually been proven guilty of the charged offense, then he can argue what you're getting at here to the jury at trial so as to appeal to their sense of what maybe shouldn't be a crime, but as a question of NY criminal law, this is really already settled:

https://twitter.com/DanielRAlonso/status/1760896498420547826

Is there any precedent for charging falsifying records as a felony when the underlying crime is a misdemeanor?

Not for § 175.10 specifically (hence Trump's "novel" prosecution), but NY's criminal courts find a misdemeanor eligible for upgrade to a low-level felony when committed with the intent to commit &/or conceal any other "crime" exactly as that term is used in Penal Law § 175.10, i.e., as it's defined under § 10.00(6), as "a misdemeanor or a felony", so those courts have found misdemeanors qualifying for upgrade to low-level felonies when committed with the intent to commit &/or conceal other misdemeanors, see Morgenthau v. Khalil, 73 A.D.3d 509, 510 (1st Dep't 2010) ("the underlying indictment [need] not allege, and the People [need] not prove, that he acted with intent to defraud a particular person or business entity"; see also People v. Coe, 131 Misc. 2d 807, 813 (Sup. Ct. N.Y. Cty. 1986) ("Intent to defraud anyone is sufficient."), & they've found - as previously iterated - that the People need not actually even prove intent to commit/conceal violating any specific, particular crime as opposed to general criminal intent, see People v. Mackey, 49 N.Y.2d 274, 277-79 (1980).

AKA:

The mathematician in me is recoiling at the circular logic there but ok lol.

The whole is greater than the sum of its parts I guess.

I've seen the same phenomenon with classified information during my defense contractor days.  For example: multiple pieces of information that were individually unclassified, but when combined into a synthesis, the result was classified.  Or multiple pieces at a lower classification level, that when combined resulted in a higher level.

In this case, it's because the intent to defraud & conceal said fraud (by way of following-up the filing of the first false business record with filing the 2nd-34th false business records) is establishable as the mens rea at a point in time prior to filing the first false business record.

Has there been any articles or other analysis whether the misdemeanor versions of these statutes are indeed lesser included offenses of the felony versions? That's usually the case, but not necessarily

That's a good question.

Actually I came back here to delete my prior post, as subsequent posts for the one I quoted made by Bruce Joel and others here answered that question. Irrelevant for counts 2 through 32 at minimum, and the subsequent actions demonstrates sufficient state of mind for a felony conviction on count one. If the jury agrees that is.