In general, with criminal cases, if you are a betting person, it's safer to bet on the prosecution. They usually win because they pick which cases to bring and they generally wait until they have a strong enough case.
@Teri_Kanefield
Maybe I’ve just watched way too much Law And Order over the years, but I can’t shake the feeling that this seems a tad contrived. I mean, I know it’s just a TV show, but they spent a lot of time coming up with ways to go after white collar criminals that tend to sound a lot like this. “Hey, we can’t get this guy for doing this egregious thing, but maybe if we put A and B together maybe we can get him on a C, and that’ll be just as good.” (IANAL)
@Teri_Kanefield oh no! We (the people) are ruined! …everyone (TV pundits) has been saying the prosecution has such a strong case… or at least has overwhelming evidence (like a tape recording of Trump?) … now I see it’s not such a slam dunk at all….
It's also easy for me to sit here and poke holes in what we know so far of the prosecutor's theory.
(If you want to try some arm-chair defense lawyering, you can have some fun with it.)
I'll resist because I have a feeling we only know part of their theory. Right now it feel shaky. I mean, if keeping bad information from voters is election interference, well, lots of people are guilty (and there wasn't enough notice that this is a crime.)
(I said I'd resist poking holes and yet, here I go)
If "election interference" means finding ways to keep bad information about a candidate from being made public, then you have just criminalized something common.
There are all kinds protections, including Constitutional protections, from charging people with a crime that was just invented.
If I run for office and ask my neighbor not to tell anyone I was a jerk to her, am I intefereing in the election?
@Teri_Kanefield I’ve just read last weeks blog. I will digest before I start on this one. One thing that sticks out to me is Trump’s tweet that Michael Cohen “broke” and pleaded guilty. This, to me, implies complicity. But IANAL!
That comment would never come in as evidence of anything for good reason.
I can be complicit in ruining the dinner, and I may have conspired to ruin the dinner, and I may have a powerful motive to ruin the dinner, but for any of that to be a crime, ruining the dinner has to be a criminal act, which means it has to violate a criminal statute.
There is a possible crime: campaign finance law, but this case is being presented as election interference, not an FECA violation.
They could pay to hide bad information they just need to be honest about the book keeping. Which sounds absurd, but NDA is one thing secret NDA is another?
I'm not a law person at all but I appreciate how you look at the whole landscape. Could you help us understand why Cohen went to prison? Why exactly.
Is there a way that all his actions could be self-serving?
@Teri_Kanefield As I understand it, part of "catch and kill" is that the source of the story has received a representation from the National Enquirer that they are selling a story for publication. This is an intentionally deceptive misrepresentation, since the National Enquirer does not intend to publish the story. As I've said before, I don't practice criminal law, but "catch and kill" sure sounds like fraud. Perhaps Penal Law §190.65, first degree fraud (a felony) applies?
@dsurkin Right. Catch and kill is not a crime. It is also not fraud. Catch and kill doesn't meet those elements.
It's also common practice, akin to a nondisclosure agreement.
The thing about criminal law is that people have to be on notice. You can't come up with a new theory to criminalize behavior and then charge someone with the crime. We even have a Constitutional protection against that.
So if something is common practice and has never been criminalized, you see the problem.
A few lawyers I know personally (not on social media) are afraid that this was in fact blatantly political.
I really doubt it. These prosecutors know that you can't invent a new crime and charge someone with it. It's the very definition of unconstitutional selective prosecution.
My point is that the reason people are working so hard to construct the prosecution's theory of the case is that the prosecution has not made it clear.
@Teri_Kanefield One thing that has puzzled me: since the falsified business records resulted in claiming a deduction for a non-deductible item, i.e., a substantial tax understatement, why has that not been set forth as the underlying felony? Tax Law §1803, class E felony for understatement in excess of $3,000. Unfortunately, I do not know any inside source who can answer this for me.
Jed and others think it's because there would be no decreased revenue to New York.
He would have taken the same deduction no matter what he called it.
They also point out that the misdemeanor requires fraud and fraud requires decreased money to someone, and that wouldn't have happened here. In other words, it may not even be a misdemanor.
Even if the tax law is the underlying crime, why is the case being called election interference?
@Teri_Kanefield I'm afraid I disagree. The expense doesn't qualify as an ordinary & necessary business expense, no matter what it's called. The underlying facts show a personal expense of the former guy, not an expense related to the operation of the business.
@dsurkin reimbursing a lawyer's expenses is deductable, right?
Wouldn't, therefore, any crime be Cohen's?
adding: My main point is this. It is unheard of in a criminal case for people to be trying to figure out what the crime is. That should be clear and it isn't.
It is entirely on the prosecution to name the crime and show how the defendant's behavior meets the elements of the crime.
@Teri_Kanefield To be deductible, an expense must be an ordinary and necessary business expense (I'll omit the cites but I'll supply them on request). It is not an ord. & nec, business expense for a real estate company to pay someone to keep quiet about an affair. The tax evasion was performed by Trump. Cohen probably reported the reimbursement because he asked to be compensated for the additional income tax he incurred. Nonetheless, your point is well taken; criminal law's not my field.
"Merchan seems to have been convinced, rejecting Trump’s argument “that the alleged New York State tax violation is of no consequence because the State of New York did not suffer any financial harm.”"
@dsurkin@Teri_Kanefield Thanks for that Dean, I got something wrong a few days ago with Teri so I wanted to be careful.
I want to note we're talking (I hope) about Cohen's overpayment of taxes and how Cohen (at the requirement of Donald Trump) falsified his New York State tax filings, categorizing the repayment of his payment to Stormy Daniels as income, on which he paid taxes.
In other words, the filing was false but he paid more than he "had" to...
The filing was false but he paid more than he "had" to, given that the receipts were repayments and not new income. He overpaid rather than evaded taxes, to hide the purpose of the money transfers.
Overpayments should not be a bar to prosecution, given that the ultimate goal is to launder illegal transfers.
Paying "extra" taxes in exchange for laundering funds would be quite acceptable to criminals with illicit money, if the payment acted as protection
Paying "extra" taxes in exchange for laundering funds would be quite acceptable to criminals with illicit money, if the payment acted as protection from prosecution for the transfers themselves.
A bit of burden perhaps but not an unacceptable route for a sophisticated player, as we see here.
The State is not just requiring its fair share of proceeds, but that records and filings be accurate. Fraudulently filing them is always illegal.
It occurs to me that the fraud part of the filing only get us to the 1st part of the 2nd element.
The elements are:
(1) The person makes or causes a false entry in the business records of an enterprise
(2) with intent to defraud that includes an intent to commit another crime or to aid or conceal the commission of another crime.
There must be an intent to defraud (and keeping information from the public is not legal fraud) that includes a predicate crime.
@Teri_Kanefield@lesblazemore I'm afraid I haven't been clear - the tax underpayment - the fraud - appears to have been committed by Trump, the payer, by incorrectly characterize the payment. It appears that Cohen reported the income. Even if Cohen reported it as legal fees, the IRS cares about the amount of income reported, not the description of the item. For deductions, the payment must be a truly deductible. Note: Al Capone was convicted of tax fraud, because that was easiest to prove.
@dsurkin Adding: It's interesting, but beside the point. The prosecution has not alleged tax fraud. They alleged a criminal conspiracy to interfere with the election. They are calling it election fraud.
I read the opening arguments, and they mentioned election fraud, and a conspiracy to interfere with the election.
In one of the motions they mentioned tax fraud as a possibility, but the possibility was helping Cohen commit tax fraud and the evidence would be Cohen's returns.
One lawyer who I won't name told me privately that he thinks Bragg brought the case cynically believing he could fool the judge and jury with these convolusions.
This is someone who agrees with Jed Shugerman's take.
@Teri_Kanefield I only know Australian tax law well but surely the reimbursement would have to be business related to be deductible otherwise it is a personal expense fraudulently put through business - Paying off a porn star NDA is in no way business related even if done through a lawyer
@Teri_Kanefield I struggle with this as well. Best I can make of it is that the NDA payment is an in-kind campaign contribution which would be far in excess of the $5600 limit? It seems like a bit of a hook-shot.
@Littlebobbytables@Teri_Kanefield if it's the statute cited, the "unlawful means" could be broader (or more vague) than campaign finance. I feel like we are still in "wait and see" mode.
@Teri_Kanefield
If you're getting stories published denigrating their opponents, and paying money to keep bad things about your candidate from being published, then, yes, it's interference.
@Teri_Kanefield@kkeller
I don't think they're going for that - I think that's covered by Pecker's immunity agreement. I suspect it's to show that the former guy had motives for paying off Daniels that made it important to hide the payments from everyone else.
Cohen went to prison for crimes he committed in furthering the conspiracy on behalf of the Trump campaign. This would seem to be the underlying basis for the charges against Trump. It seems unlikely that had Cohen not done what he did, the DA would not have brought the charges.
Oh sorry I misunderstood. I didn't realize you were talking about that aspect only; I was thinking of means as including the fact that he falsified business records.
Thanks. I've now read your blogs and also the Shugerman opinion piece. And I too am very confused!
Here's is one thing I'm trying to understand: even if they entered into a conspiracy to falsify business records in case FEC came poking around - that is not necessarily state law violation nor is it election interference?
If Trump and others conspired to falasify business records in case the FEC came around (which is not what the prosecution is alleging) it might be a state law violation, but not election interference.
Because that is not what the prosecution is alleging. If they pivot and that as the crime, there are also problems with that, which we can talk about if they pivot to that.
The reason we are all struggling is because the prosecution has not offered a clear theory of the case.
@Teri_Kanefield I think the bad acts come at the moment the business records are falsified, to cover up the iffy election issue. Committing a crime to coverup a non crime. Committing that crime to facilitate election is where ‘election interference’ comes in. You can lie to get elected, but you can’t commit fraud to cover that lie. I think that’s the approach from what I have seen.
@Teri_Kanefield I stand corrected. Falsifying documents as business expense when in fact it was for the campaign is not a crime? Wouldn’t he have done better to just list his payment to her as a campaign expense? Instead, he laundered it thru a 3rd party as a business expense. That tangles the business and the campaign finances in a way that is unacceptable, does it not? Committing a crime to cover a non crime is? I shall read your blog after dinner. It’s been a day. Thanks for responding.
@Teri_Kanefield I shall absolutely read your blog. Been a hella day round here with electricians and plumbers. I typically read your blog first. ; Thanks again.
@Catawu@Teri_Kanefield what he got was campaign help worth significant amounts of money without reporting and presumably in violation of campaign law.
if a billionaire had handed him the 130k to pay off Stormy and then did not declare that,, the billionaire would also be in the conspiracy and would be charged for violating camapign laws. AMI also admitted to violations of campaign law.
@Teri_Kanefield What I’d like to see are the documents he signed regarding elements of the election/campaign. What did he have to swear to that was true (finances wise) and accurate? Will we see all the financial statements in this? It would be ironic if this case proves ‘no crime’ and Cohen has to be exonerated, and get his law license back.
What do you think of @jaykuo 's explanation of Trump's crime?
"And while there’s nothing illegal about catch-and-kill per se, when these payments become unreported campaign contributions, it crosses over from shady to illegal. And then when you tried to hide those through falsifying your records, it becomes a felony.
Come on, all people of conscience knew Trump was 100% guilty already based on the public factual record before the trial began, This is just a Kabuki dance for the defense to manage before Trump goes down--unless of course a slithering MAGA cultist got on the jury to hang it.
@Teri_Kanefield I'm so confused. If they have to prove that Trump, etc.'s actions regarding the election were done by "unlawful means" that seems to get them nowhere. They still have to show what the "unlawful" part was. Why not skip straight to whatever "unlawful" thing they're talking about? I guess the argument could be that Cohen did something unlawful and Trump was in a conspiracy regarding it? Wouldn't they still have to prove that Trump KNEW the actions were unlawful?
@Teri_Kanefield OTOH, I don't think that Trump can be considered similarly situated to a "typical" defendant with regard to knowledge of campaign finance laws and reporting requirements (and that he relied on his lawyer to know better). He has a long history of having his donations called into question, and I'd bet there was a 2015-2016 news cycle about his past practices that can be used to show knowledge. Here's the first thing I found (though not exactly on point): https://www.nytimes.com/2016/09/07/us/politics/donald-trump-pam-bondi.html
@Elsehere That is not a legal argument. FECA is a different law. Moreover, because of the elevated mens rea requirement, FECA violations mostly results in a fine and is not "election interference." This isn't what the prosecution is putting forward.
The reason everyone is working so hard to come up with a legal argument is because the proseuction has not made one clear.
IDK to me this fits perfectly. The thing is it's a small crime compared to the other crimes. But it's consequential. The bad bookkeeping was done to help him get elected.
@futurebird@Teri_Kanefield Yeah it might be a lot easier for a jury to understand and relate to their own experience. “Inciting an insurrection” is big and scary; business fraud they’ve seen before.
As business fraud it is but a misdemeanor. But put that in the context of an election and it is a felony.
Because we are supposed to be able to know about all of the people who contributed to a campaign. It is a list that we get to read.
(super pacs make a mockery of this but can trump claim to be his own opaque pac? and a pac isn't a pac if they only work to elect one guy.... that's not allowed... technically)
@Teri_Kanefield I have no idea how the trial will turn out, either, for the same reasons plus I'm working so all I can do is read about each day's testimony after the fact. BUT: The prosecution's theory laid out in your two screenshots sounds ... plausible?
I'm wondering if letting Pecker plea was a mistake. He made huge in-kind campaign contributions in the form of favorable and negative press and suppressing stories. And he expected to be compensated for it.
@Teri_Kanefield Fair enough. But they cite NYS Election Law 17-152. Does that not qualify in your opinion? Or am I missing something (always a possibility)? Thanks for your response!
@Teri_Kanefield I thought I heard they were aiming to have a campaign finance violation be the predicate crime, but not sure where this fits in there either.
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