From the NYT's Live Updates of the Trump trial (free access link).
How can it still not yet be determined what law defines the crime?!
Is it possible that Justice Merchan said "Just relax" to the defense lawyer because he knows that, in the end, he will hold the prosecution to account for failing to define the crime? I know, it's much more likely that Merchan said "Just relax" because it's irritating to listen to an agitated lawyer, even when, as here, outrage is part of his argument.
But what is the other crime?... In court filings, the prosecution has argued that Trump was attempting to commit or conceal federal and state election law crimes, along with state tax crimes.
The election law theory has real weaknesses, however. While I’ve long believed the hush-money scheme violated federal criminal law, I also recognize that the underlying legal theory has not been fully tested. Cohen, Trump’s former lawyer and fixer, pleaded guilty to federal crimes in connection with this same scheme, but a guilty plea doesn’t have the same value as a court precedent. There isn’t clear federal precedent on the matter, and no federal charges have been brought against Trump on these grounds, by the Department of Justice under either Trump or President Biden.
In addition, the state election law that the prosecution cites may well be pre-empted by federal law and therefore be inapplicable to the case. I’m not alone in these concerns. Mark Pomerantz, a former prosecutor in the Manhattan D.A.’s office, said that the case was “too risky under New York law” and noted that “no appellate court in New York has ever upheld (or rejected) this interpretation of the law.”...
AND: Let me just quote something I wrote in the comments section of a post I put up last Thursday:
If Trump is convicted, just ask people *what* Trump was convicted of? I'll bet no one — not even the jurors who convicted him — would be able to state the answer correctly.
I myself can't do it, and I have tried to understand what the crime supposedly is. I even suspect the judge and the prosecutors don't know!
What the hell kind of conviction will this be — conviction of a crime that no one understood, based on the testimony of a huge liar?
A very self-righteous commenter purported to answer me and was sure it had to do with "breaking FEC regulations for illegally contributing to a campaign" — federal law and not state law. Well, maybe he was right last week, before the shifting of the theory that the defense is complaining about this morning. But I don't even think it was right last week. And I don't see how Trump had fair notice of the charges against him.
Posts
121 comments:
"it's much more likely that Merchan said "Just relax" because it's irritating to listen to an agitated lawyer, even when, as here, outrage is part of his argument...."
Or rather - is it more likely to be irritating to the Defense lawyer, who is frustrated already, to be told to 'relax' - as if he's being unreasonably emotional, asking what the f*ck the charges are?
Hmm, is the a new theory in American courts? The Andrei Vyshinsky method?
I am curious about how this case is being perceived by the legal profession in general and by law professors in particular. I wonder if our gracious hostess is still keeping a finger on the pulse of the Bar in retirement, whether in person or online. Perhaps she could tell us what the consensus might be.
Is it:
1) This is an outrageous farce and an abuse of the law, and a directed verdict of acquittal and sanctioning/censure of the prosecution would be appropriate
Or:
2) Yes, this is an abusive lawfare fiasco that shocks the conscience of any ethical lawyer, but Trump is so surpassingly, uniquely evil that it is worth overturning hundreds of years of jurisprudence to put him behind bars
Or:
3) This is a stretch by the prosecutors and we must be careful not to see it applied too widely, but ultimately it lies within the broad range of normal for the American legal system, and Trump will have no meaningful avenue of appeal if he is convicted
Or
4) This is an excellent and fully justified use of novel legal theories to advance the cause of social justice and cause harm to the “enemies of democracy”
Or:
5) something else?
Is it possible that Justice Merchan said "Just relax" to the defense lawyer because he knows that, in the end, he will hold the prosecution to account for failing to define the crime?
No. Most likely Judge Merchan is telling Bove to relax because the fix is in and Trump has to be found guilty of something or another.
Merchan is corrupt. There's no reason to trust him. Trump's lawyers should object.
But, yes, Trump is charged with crimes that have yet to be defined. The case is absurd and should have been thrown out immediately.
How is cogent commentary even possible with this utter shit show of a trial?
Has the defense moved for a dismissal yet? Since the Prosecution clearly has NOT provided any evidence to prove the elements of the elusive crime?
Has the defense moved yet for a directed verdict?
The Trial
"How can it still not yet be determined what law defines the crime?!"
Well, Trump. QED.
>> How can it still not yet be determined what law defines the crime?!
Failure to define the crimes has been a fact since the indictment was issued.
https://reason.com/2023/04/05/prosecutors-are-still-hazy-about-what-crime-trump-was-trying-to-conceal-by-falsifying-business-records/
"Does Bragg have in mind two or more underlying crimes? If so, what are they? 'THE INDICTMENT DOESN'T SPECIFY THEM BECAUSE THE LAW DOES NOT SO REQUIRE,' Bragg told reporters" [Bragg quote includes link to NYTimes https://www.nytimes.com/2023/04/05/opinion/trump-charges-explained.html ]
I can’t speak for NY, but in Calif, starting a trial before the crime has been clearly defined NEVER happens, and if a trial judge tried to do so, the emergency Writ request to the Court of Appeal would ALWAYS be granted. The rot in NY is not limited to Merchan.
G-Pub
My understanding of correct trial preparation starts with your jury charges, which set out that set of facts and law you must establish in order for your client to prevail; an outline of the case, in other words. Only then is the testimony and physical and documentary evidence assembled to be presented in the order and fashion that most persuasively tells the client's story while ensuring that all of the elements of the case (as outlined by the proposed jury charges) have been effectively and sufficiently covered.
However, in following this trial, it looks as though the prosecution, if allowed by the judge, will wait until all the evidence is in, look back to see what "crime" they came closest to proving, then adjust the closing argument and proposed jury charges accordingly.
That is why the prosecution has been so reluctant to reveal the underlying crime: they won't know what it is until they can determine it from the evidence on record.
Hurry corrupt leftists - find a crime in there. make one up!
The Judge is a fraud and a liar - and a supporter of Crook Joe.
The fix is in.
@Hassayamoer: As a retired law professor, I think your #1 is correct. The trial judge has made so many material errors here, starting with the failure to require the prosecution to give fair notice of the specific crime being charged, that this case could be a poster child for bad judging.
Professora axsks [naif that she is?]
How can it still not yet be determined what law defines the crime?!
=================
as if ...
bless her heart
etc.
etc.
The self-righteous commenter’s explanation is how I’ve understood the case—the failure to report a campaign expenditure. But the prosecution has not shown that it was a campaign expense (as opposed to an expense to keep the peace in his marriage) and that was the big weakness of the case. If that’s not what this is about then I guess I’m as lost as everybody else.
How can it still not yet be determined what law defines the crime?!
Show me the man.. I'll show you the law. Wait! No not That law.. THIS law.. YEAH that's the ticket
I think a couple more days of Stormy Daniels' testimony would clear all of this up.
does anyone STILL think, that we are NOT living in a banana republic?
"You have to get the conviction to find out what is in it."
This is for AA:
How can any of this stand up under appeal if Trump is convicted?
From the judges daughter to the one-way gag orders to the vagueness of the 'crime,' the whole thing has been a mess.
Transjudicial.
Althouse said...
I myself can't do it, and I have tried to understand what the crime supposedly is. I even suspect the judge and the prosecutors don't know!
What the hell kind of conviction will this be — conviction of a crime that no one understood, based on the testimony of a huge liar?
Judge: If you don't answer the question, Althouse, we're going to have to gag you.
Althouse: What question?
Judge: Gag her!
How can a criminal case get this far without a named crime? Perhaps someone could explain criminal procedure that allows the prosecution to do this. Isn't there a counterpart of a 12b6 motion for criminal cases?
I read the David French piece. French claims that the trial shows that Trump used his star power to ensnare Stormy Daniels and then exploited her. He believes Stormy when she says that the encounter left her ashamed and trembling. French shows the trial has shown how "vile and dishonest" Trump is and how the "broken souls" of his supporters are manifested when they come out to support him.....But later in the article, even he, points out that there are many flaws in the underlying legal theories of this case......It used to be said that the cover up is worse than the crime. That old saw needs to be amended. The prosecution of the cover up is worse than the crime if there was no crime committed.....The facts of the case don't make Trump look good, but they make the prosecutor and credulous people like French who report on the trial look far worse......Let the record show that FDR, LBJ, JFK, and Bill Clinton committed far more egregious acts of infidelity than Donald Trump and that the press mostly covered up rather than covered those offenses.
"How can it still not yet be determined what law defines the crime?!"
That's why Alvin Bragg is the prosecutor and you're not.
So Cohen lies on the stand and now admits to stealing…
Couldn’t happen to a sorrier squadron of sacks of dog scat.
"How can it still not yet be determined what law defines the crime?!"
Then why is there a trial?
"Let's finish this damn thing."
Althouse said...
Is it possible that Justice Merchan said "Just relax" to the defense lawyer because he knows that, in the end, he will hold the prosecution to account for failing to define the crime?
A directed verdict would... "finish this damn thing."
Shouldn't Trump's team indicated they will put on a full defense rather than assure Judge Merchan this will go to the jury quickly and take Merchan off the hook?
Kangaroos eating bananas.
It's for saying that women let celebrities grab them by the pussy. So far all of the convictions have been for that, some lady saying that she didn't permit him, even if he didn't.
"Does Bragg have in mind two or more underlying crimes? If so, what are they? 'THE INDICTMENT DOESN'T SPECIFY THEM BECAUSE THE LAW DOES NOT SO REQUIRE,' Bragg told reporters"
Yet another excellent reason to stay the heck out of New York.
But really: is it the case that the prosecution is NOT required to inform the court and the defense of the specific predicate crime(s) in this case? Before the trial begins? And don't those crimes have to be proven, first? Or at least, charged?
I mean, WTF?
As one who believes the fix is and this is all theater, I have made an honest effort to understand. But despite explanations from many excellent commenters here, I still have not idea what the hell is going on. How can a DA file charges and bring it to trail before the crime is explicitly defined?
Perhaps the correct answer is the simplest: because they can.
Ann said....I myself can't do it, and I have tried to understand what the crime supposedly is. I even suspect the judge and the prosecutors don't know!
If a neutrally cruel law professor struggles to figure out what the crime is, then you can guess why this trial is even happening.
The legal theory is conceived on the doctrine of flinging feces, high capacity in this case, and hoping that it doesn't hit the fan.
Plausible lies must constantly evolve and mutate.
Colangelo angrily responded to Bove, asserting that the payment was recorded fraudulently to further a state election law crime (which is outside the statute of limitations), leaving him only a federal election law crime, which the State of New York has no jurisdiction to prosecute, and which President Trump was never convicted of or even charged with in federal court. My goodness.
All of this leads me to repeat the question I had last week, when the subject of 'directed verdict' first came up. I asked if the commenters meant, a directed 'Not Guilty' verdict?
Now, the usually-unimpeachable Wiki source sez: "In a jury trial, a directed verdict is an order from the presiding judge to the jury to return a particular verdict. Typically, the judge orders a directed verdict after finding that no reasonable jury could reach a decision to the contrary. After a directed verdict, there is no longer any need for the jury to decide the case."
As I am not a lawyer or legal professional, this was the definition I was working with; it's ambiguous.
So: from everything I've read regarding the Trump trial, the outrage, the questionable legal premise, the absence of precedent, the non-specificity of the charges being tried: Why, in the face of this travesty, would the commentariat defer to consider that this judge might render a directed verdict of 'Guilty'? Why not? Why leave anything to a chance outcome from an uncooperative juror? Which directed verdict is more likely, given the circumstances to date?
The point of this trial is that Trump is going to have to run his election campaign while the Democrats can technically correctly call him a “convicted felon”, all day every day Yes, this bullshit conviction will almost certainly be overturned on appeal, even in New York appellate courts. But by then the election may be over.
For those wondering about the relevance of Stormy Daniel's soft-core porn testimony, now you have your answer. Inflaming a jury to the point where the holes in the prosecution case don't matter. It's the magic gluten that makes the spaghetti stick to the wall.
Merchan, noun, a judge who is determined to achieve a guilty verdict no matter what the evidence indicates.
Usage: “My client is innocent but he ran into a real Merchan so now he’s looking at a max sentence.”
Vote-Busters !
I thought Achilles summed up the theory of the case as it has been presented to the public very well.
Why, in the face of this travesty, would the commentariat defer to consider that this judge might render a directed verdict of 'Guilty'?
I wasn't aware that a directed verdict of "Guilty" was even possible under the Sixth Amendment. Sounds a lot like the old Star Chamber. In this particular case it would seem certain either to assure Trump is elected, or provoke a civil war.
FWIW, I wouldn’t convict a dog of chasing a cat based on the testimony of Stormy Daniels and Michael Cohen.
“How can any of this stand up under appeal if Trump is convicted?”
It can’t. And more than anything because it violates Trump’s Due Process rights under the 14th Amdt. Waiting until the defense rests their case to determine the underlying crime is grossly unfair to them mounting a defense. And thus violative of Due Process.
But the real problem here is that Trump is apparently not charged with violating a campaign finance law, but rather attempting to do so, and NY uniquely doesn’t allow impossibility as a defense. The theory then is that legal impossibility is irrelevant. The other key thing about the NY Attempt statute is that it isn’t tied to specific crimes, which is how they can try to use violating federal law as the basis here - the statute doesn’t say that the crime Attempted has to be a NY state crime, but rather just a crime.
Off on a tangent a bit. I was once cited for attempting to exit (exiting) a freeway other than at an exit. A non lawyer JP found me guilty. I appealed to a (lawyer) judge, and won. He remanded. Retried to another non lawyer JP. Lost again. Appealed to same judge, who blew up - writing a scathing 6 page opinion essentially telling the JPs that when he remands like that, he means dismiss. My (winning) argument was that under AZ law, inchoate offenses (like Attempt) were one step down from the underlying offense. Thus, if 1st Degree Murder is a Class 1 felony, then Attempted 1st Degree Murder is a Class 2 felony. All the way down. And at the bottom are Civil Infractions, which was the underlying charge against me. Nowhere to go from there. And I pointed out that most Attempted Civil Infractions didn’t make sense - like attempted speeding, etc. that’s one of the dangers of using non lawyer JPs to make legal decisions - they haven’t been through law school, and thus weren’t taught what inchoate crimes are (and the record in my 2nd trial was iron clad - that I had not yet exited the freeway, which made “exiting” inchoate Attempt). Also, under the AZ scheme, there is no way to leverage Misdemeanors into Felonies with an Attempt statute - attempted Misdemeanors are one step down, and if at the bottom level become Civil Infractions.
I have no reason to relax when a judge allows the prosecution to bring evidence for an unnamed and undefined crime that the defense is expected to now counter. What exactly does Merchan expect them to counter as they are now calling witnesses?
I think the question we need to start asking is what will a conviction of Trump say about the people of New York that can find 12 people to convict with such a shoddy case and trial?
A very self-righteous commenter purported to answer me and was sure it had to do with "breaking FEC regulations for illegally contributing to a campaign" — federal law and not state law.
The FEC investigated this. They determined Trump did not break federal law.
“Judge” Merchan gagged the FEC investigator in the trial but allowed Stormy Daniels to testify for 2 days.
On a side note, David French is still a despicable heap of dogshit.
I think the question we need to start asking is what will a conviction of Trump say about the people of New York that can find 12 people to convict with such a shoddy case and trial?
Not one thing that I didn't already believe to be true of the vast majority of people who live there. I've always disliked the place and have made it a goal never to stay there more than 36 hours.
City people suck. City people have always sucked.
How can Trump be expected to mount a defense against a criminal charge if the court has yet to define what the actual crime was that he covered up? How is it fair for the defense to wait for the jury instructions to find out what the crime was? Isn't that a violation of Trump's Constitutional rights to KNOW the charges against him?
And now Cohen has admitted on the stand that he stole $30,000 from the Trump organization and that he had told the prosecution that information.
I'm beginning to think Trump is the only one in this farce of a trial that is NOT guilty of a crime.
For those interested, here is the first charge against Trump (the other 33 are almost identical):
THE GRAND JURY OF THE COUNTY OF NEW YORK, by this indictment, 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 February 14, 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, an invoice
from Michael Cohen dated February 14, 2017, marked as a record of the Donald J. Trump
Revocable Trust, and kept and maintained by the Trump Organization.
I have bolded the critical portion of the charge. It’s the “another crime” that is key here. What is the other crime being alleged here? We are still, this late in the prosecution, unsure whether it was state campaign finance law (preempted here by federal law for national campaigns) or federal Campaign Finance law (that the NY courts don’t have jurisdiction to litigate). Note also that every single alleged criminal action occurred AFTER the Presidential election in 2016. But, again, Impossibility is not a defense under the NY Intent statute.
At the NYTimes link Althouse cites, they claim that the second crime that the accounting misdemeanor enables doesn't have to be committed by Trump, i.e., Cohen's own crime (including defrauding Trump's business?) can be the second crime resulting in a felony conviction of Trump. So the lying sack of shit Cohen is literally the whole case.
Let me also apologize. Intend and Attempt are separate inchoate crimes, that are swept in together in states like AZ, in my example above. That’s for good reason - it’s often hard to draw the line between the two. So please excuse my mistake in my first comment about “Attempt”, when “Intend” was what was actually charged.
cfs said...
How can Trump be expected to mount a defense against a criminal charge if the court has yet to define what the actual crime was that he covered up?
Mr Criminal, you have been charged with a CRIME, do you plead guilty?
.. "What was this crime i'm charged with?"
Never you mind, Mister Criminal! Do you plead GUILTY? Or must i find you In Contempt?
I'm sure we are all familiar with the maxim that a determined DA can indict a ham sandwich if so minded.
It would appear that perhaps we are now moving up a step to where we can convict the ham sandwich of being a ham sandwich.
P.S. You have to substitute Trump for Ham Sandwich to really bring this to life.
On the topic of David French. I first encountered him at National Review when he announced he was enlisting and volunteering for the war in Iraq. I was impressed until I learned he was going in to the Judge Advocate Corps. Courageous that.
As he has grown as a pundit he has increasingly made my skin crawl to the point that my face is a smooth as Nancy Pelosi's.
So Cohen admits under oath to what I assume is a felony.
When will he be prosecuted for that crime?
It took be awhile to type that last sentence because I was laughing my ass off...
If the Dems were smart, they would let the jury convict and then have the NY governor (Hochul) pardon him before an appeal can be heard. That way, they can say throughout the rest of the campaign that he was found guilty and never have to worry about how harsh the appellate judgment is when it inevitably gets overturned.
Maybe the mainstream outlets and writers who have suddenly discovered that the case has no legitimate basis, such as the lack of an associated federal crime on which to attach the state charges, have conceded a loss and are setting up the new narrative of "He got off on a technicality."
They write with purpose, not to inform.
"What the hell kind of conviction will this be — conviction of a crime that no one understood, based on the testimony of a huge liar?"
It is the kind of conviction that the American bar wants in this case. It is the kind of conviction salivated over by law professors at the most 'elite' law schools. It is the kind of conviction that defines the current state of the legal profession in the US.
I still put the probability of 'guilty' at 100%...
How can ANYTHING about the internal-business notations on these checks be an "election fraud?"
Wouldn't such a case (poorly supported though it might be) have to begin with Trump submitting those records to satisfy some legal requirement in official FEC filings? And did the prosecution even present evidence from expert FEC officials to lay a basis for that type of claim??
This is just all so awful, so illogical, so Kafkaesque.
Is it possible that Justice Merchan said "Just relax" to the defense lawyer because he knows that, in the end, he will hold the prosecution to account for failing to define the crime?
Possible? Sure, it is also possible that someone will give me a billion tax free dollars as a gift before COB Friday but that (like the above) is highly unlikely.
If Merchan was any sort of justice, this farce would have ended with prejudice weeks ago. The fact that it is still allowed to continue says this circus is far from over.
I think that at this point the chances of an outright acquittal if the case goes to the jury are about 40/60.
For Joe Smith
“How can any of this stand up under appeal if Trump is convicted?”
The point of this is to keep Trump tied up in court and off the campaign trail, bring out embarrassing, if not either relevant or illegal, information, convince voters that something illegal happened, even if it didn’t, and it’s likely that a NY jury will convict Trump despite it being an obvious farce. Any appeal will be held after the election, and will be too late to make any difference, so this exercise in election interference will have served its purpose.
@285exp
Yes, I get that, but I'm still interested in the nuts and bolts.
If Trump is convicted after all of the dirty dealings that are now coming out about Cohen, etc., I suspect Trump's poll numbers will go even higher...
I just went to the store and the local radio station had a "legal expert" talking about the Trump trial. To hear him tell it, it's a slam dunk that Trump gets convicted.
He said that it's obvious that Trump falsified the filing by calling the payments a legal expense when it was actually a campaign contribution. Then he said that was just a misdemeanor, but the felony charge was kicks in if the misdemeanor is done to cover up a crime and that Trump was obviously covering up the crime of breaking FEC laws with his illegal campaign contribution to Stormy Daniels.
Then the host asked him if the defense should ask that the jury be allowed to consider the "lesser charges." (the misdemeanors) And the legal expert said that would be good for Trump because it would give the jury the opportunity to just find Trump guilty of the misdemeanors and this case wasn't filed until after the statue of limitations on the misdemeanors had expired, so Trump would be off the hook.
And I see legal experts like this all day on all the media outlets. So it's no wonder that people really have no real idea what's happening with this case. It basically boils down to this: If you like Trump, he's innocent and if you don't like Trump, he's guilty.
Bruce, thanks for providing the information from the Grand Jury, and thanks to others questioning what the other crime could possibly be. I think it is clear I don't trust Merchan, but I'm wondering something else. Has the prosecution brought any evidence that a) fraud was committed and b) any other crime was committed?
On point a) what is the fraud? If it is hiding sex with Stephanie Cliffords, don't they need to prove that sex actually occurred? If it is the declaration of paying Cohen as legal fees, then shouldn't they have a witness show that it wasn't legal fees? Cohen just admitted on the stand today that he intentionally and erroneously billed Trump $60,000 to pay for a settlement at $20,000. When asked specifically on this issue if he stole from Trump in 2017, Cohen said "yes, sir". If Cohen admitted stealing from Trump by sending him inflated invoices; where is the evidence of Trump's fraud?
On point b) everybody is asking that question. At this point, it seems the only evidence possibly presented is maybe prostitution, except Cliffords wasn't paid until she threatened blackmail. As the prosecution hasn't named the other crime, what evidence did the bring to support that crime?
I'll accept the claim these are rhetorical questions. They are, but only in the sense that I don't trust Merchan as a judge. But is it not a requirement for a Judge to demand evidence of a crime be presented during a prosecution?
Wake me up when the fat lady sings.
Cohen has just said that he stole from Trump under oath.
The only thing the prosecutor had was Cohen’s assertion that Trump and he talked about doing something wrong.
They are holding that what the FEC determined was not a criminal act is a criminal act and that Cohen and Trump conspired to hide that criminal act.
Of course the “Judge” will not allow the FEC to say why they don’t believe Trump committed a crime.
And the only evidence of this conspiracy is Cohen’s word.
And he is an admitted perjurer and thief.
This is awesome. Not even the media can hide this. And the regime supporters can no longer hide from the truth.
“If Trump is convicted, just ask people *what* Trump was convicted of? I'll bet no one — not even the jurors who convicted him — would be able to state the answer correctly.”
This is not rocket science. Donald Trump is on trial for falsifying business records. The wording of the statute is:
“A person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.“
It doesn’t look like the prosecution has to prove that “another crime” was committed, just that the “intent to defraud” included an intent to commit another crime or an intent to aid or conceal the commission of another crime. In other words, this goes to the level of intent that has to be proved.
That does give the jury the “out” of finding Donald Trump guilty of falsifying business records in the second degree (misdemeanor) and not guilty of falsifying business records in the first degree (felony). We’ll see whether the prosecution or defense will argue against including that out in the jury instructions. I think the prosecution should want it in, but will Trump want it in too?
Appeal, schmeel.
The process is the punishment.
See also 1/6 "insurrectionists".
The problem, Left Bank, is that the prosecution themselves proved Trump wasn't the one who made the "false" entries in the accounts, and their own witnesses testified that Trump didn't order it either- it was the people in accounting and the software used. Additionally, the prosecution never actually proved Trump approved the payments to Daniels' and her lawyers from Cohen- that was what the phone call testimony was all about, and Cohen was proven to have lied or been mistaken about it in no uncertain terms.
Blogger Left Bank of the Charles said...
“If Trump is convicted, just ask people *what* Trump was convicted of? I'll bet no one — not even the jurors who convicted him — would be able to state the answer correctly.”
This is not rocket science. Donald Trump is on trial for falsifying business records. The wording of the statute is:
Followed by Left Bank of the Charles proving Althouse right. Rocket Science is easier as it is based on the laws of Physics, which you can not pretend mean whatever is intended.
I am sorry, Left Bank of the Charles, but this does not make a lick of sense:
"It doesn’t look like the prosecution has to prove that “another crime” was committed, just that the “intent to defraud” included an intent to commit another crime or an intent to aid or conceal the commission of another crime."
It is utterly incoherent to say you can prove someone's intent to defraud by intending to commit another crime without saying what the crime is. It is beyond me how anyone thinks there is a way to justify this.
As for what Merchan is up to, he faces two choices: Accept Bragg's outrageous attempt to convict Trump of "something or other" and go down in history as the biggest clown our courts have ever dredged up, or distance himself while he still has time and shut this down now.
BTW, Michael Cohen just admitted that he provided a false record in a business enterprise in order to hide the theft of over $30,000 for Donald Trump. This is the prosecutor’s star witness and they have never charged Cohen for this now admitted crime.
"have shifted"
'A very self-righteous commenter purported to answer me and was sure it had to do with "breaking FEC regulations for illegally contributing to a campaign" — federal law and not state law.'
Poor Achilles. I think he was trying to be dismissive of the charges.
Trump’s lawyers are going to ask for a directed verdict - which rarely get’s granted but I actually had a judge rule in my favor in high school on a directed verdicted and then he ordered the city police in my town to stay away from me.
So, on the directed verdict, what law does the judge cite that the prosecution failed to meet its burden of proof.
Excuse me. Cohen stole closer to $60,000 from Trump. Merchan surely knows that Trump has already suggesting appeal based on Selective Prosecution, and here we have the Prosecutions main witness admitting to the crime that is being charged to Trump and the prosecutor has not charged Cohen for this crime. Cohen has now admitted to committing a felony crime against Trump, so Trump is the actual victim here and is being prosecuted.
I still believe it will be a hung jury, but anything short of acquittal (because Merchan has yet to stop this sham trial) is a shame on the people of New York. New York will be the place where the victims are charged with the crime that was committed against them. See other examples with Jose Alba and Daniel Penny.
I think the charges die on appeal for the simple fact that a guilty finding depends on the upholding of a legal principle that anything that a political candidate does with his life during or before a campaign was specifically done to further the campaign. Thus, anything bad is a "campaign-related offense."
If I drink a glass of milk without paying for it while running for office, then the theft becomes a campaign-related offense, by this theory, as being well-fed makes it more likely I can win the election.
And, the judge needs this case to go to the jury. A jury's factual findings aren't as fixable in an appeal as a judge's legal rulings. If the judge can guide the jury into the right factual findings, a conviction becomes much harder to attack.
Merchan embarrassing himself in court yet again. 'COSTELLO LOOKED AT ME CROSSWAYS!!!!!' There won't be, but there should be, serious consequences for his conduct in the courtroom, both professional and personal, during this shitshow trial of his own creation.
There are many, many problems with the DA's case, and Andy McCarthy has been diligently cataloging them. With respect to the inability for the defense (or the judge) to be able to say clearly what law Trump is alleged to violated, it bears remembering that the purpose of the indictment was to inform the defendant of the charges against him so that (among other reasons) he could prepare a defense. Yet the indictment in this case did not inform Trump of the crime he is alleged to have committed with that level of specificity -- making it hard to present an effective (or ineffective) defense. Today's bit of weirdness in this case just underscores the problem.
To add to the fun and games, the NY Sun reported this morning that "Judge in Trump’s Hush-Money Trial Got ‘Caution’ From State Ethics Panel Over Small Donations to Left-Wing Groups." One of the left-wing groups to which the judge contributed was called "Stop Republicans." Yikes -- not a good look in a case where the need for impartiality and even-handedness are overwhelming. The 'caution' related to events predating Judge Merchan's assignment to the Trump case, but you know it's going to turn into another huge black mark against a prosecution (and a judge) that already have way too many in this misbegotten case.
Way to go, Team Dem. Keep it up.
“I think the charges die on appeal for the simple fact that a guilty finding depends on the upholding of a legal principle that anything that a political candidate does with his life during or before a campaign was specifically done to further the campaign. Thus, anything bad is a "campaign-related offense."”
The problem here is that all of the payments were made after the election, most while Trump was in the WH.
It is utterly incoherent to say you can prove someone's intent to defraud by intending to commit another crime without saying what the crime is. It is beyond me how anyone thinks there is a way to justify this.
Just accept the obvious. Leftists are power crazed lunatics who will say anything, believe anything, do anything to seize the reins of government so they can dole out the fruits of other peoples' labor to themselves and their cronies.
They are the proles and Party members of 1984 and the pigs and dogs of Animal Farm. They are the most greedy, selfish, lazy, and stupid people in the world. We cannot consider them fellow Americans any longer. They are parasites and vermin. They are our enemies and they must be defeated.
Do not EVER surrender your weapons if these evil scum ever steal enough power to attempt civilian disarmament, no matter what laws they pass, because we and our posterity won't see liberty for twenty generations without shooting our way out of their wicked clutches.
If it's time to hide your guns, it's actually time to use your guns.
The 99.9% of the electorate that DOESN'T read Althouse, but gets its news from ABC, CBS, etc., etc., understands that this is the "hush money case". That is how it is invariably described.
The people aren't told that paying "hush money" isn't a crime. But they have now heard, over and over again, that Trump paid "hush money" to a hooker ("porn star" is a euphemism, right?). So, he's guilty, right?
Now do the Biden family business.
Everyone here and everywhere else seems to be missing a key point. Yes, it’s true that the New York Court of Appeals, in interpreting this statute, says that the prosecution need not prove that the defendant intended to commit another specific crime through the use of funky bookkeeping. That’s because criminals are opportunistic and change their plans as opportunities arise. Since the defendant has already committed one specific crime in aid of his plans (funky bookkeeping), it doesn’t offend due process to only require a general intent to commit a future crime. However, that logic only applies to funky bookkeeping in the service of a future crime. As it happens, that is what all of the reported cases under this statute concern. There are no reported cases of a defendant using funky bookkeeping to conceal a past, already committed crime. In such cases, the defendant either committed that past crime or did not, and he either intended to use funky bookkeeping to conceal that specific crime or he did not. If the Court of Appeals ever gets this case, it is very likely to draw this distinction and require proof of the occurrence of the specific crime allegedly being concealed through the funky bookkeeping.
I have a fuzzy recollection that John Edwards was accused of election law violations for using money gifted from a supporter to pay hush money to his pregnant mistress and it was decided that it was a personal expense, not a campaign expense, so the supporter could make the gift to him legally as long as she filed gift tax returns. Am I hallucinating this?
So: from everything I've read regarding the Trump trial, the outrage, the questionable legal premise, the absence of precedent, the non-specificity of the charges being tried: Why, in the face of this travesty, would the commentariat defer to consider that this judge might render a directed verdict of 'Guilty'? Why not? Why leave anything to a chance outcome from an uncooperative juror? Which directed verdict is more likely, given the circumstances...?
Because trial by a jury is a Constitutional right. The judge can acquit; he can't convict.
Is anyone here arguing that the business records weren’t falsified? Or that any falsification lacked the intent to defraud? I’m seeing arguments that someone other than Trump committed the falsification. I’m seeing the argument that the additional element for a felony in the first degree isn’t present. But I’m not seeing the argument that no crime was committed.
Just an old country lawyer said...
"That is why the prosecution has been so reluctant to reveal the underlying crime: they won't know what it is until they can determine it from the evidence on record."
Sounds a lot like "we have to pass it to see what's in it."
Left Bank of the Charles said...
"Is anyone here arguing that the business records weren’t falsified? Or that any falsification lacked the intent to defraud?"
Yes and yes.
The dirty secret is that the prosecution, and the Democrat in general, don’t care if the conviction is reversed on appeal. They just want a conviction before the election.
I'm going to paraphrase Nancy Pelosi's approach to health care legislation with respect to NYC's current judicial proceedings:
"You jurors have to convict Trump in order to find out the crime he committed."
@Left Bank of the Charles said 18:46" "Is anyone here arguing that the business records weren’t falsified? Or that any falsification lacked the intent to defraud? I’m seeing arguments that...."
I would suggest that you are seeing what you need to see, and not seeing what creates a cognitive conflict, to confirm your own biases. Several people are stating that NO crime occurred - that means, 'no falsification', implicitly. Several people have pointed out that, even if a crime were accused, the statute of limitations has long passed for what is a misdemeanor offense. Several notable Professional legal experts - like Jonathan Turley and Alan Dershowitz, for instance, or Andy McCarthy, for example, have clearly stated that no crime has occurred, no business record was falsified, that the Trump accountant simply followed a normal procedure to enter Cohen's invoices as 'legal expenses' - a bookkeeping convention. What is it that you don't see, when they write these things? It's not for a lack of material that you are not comprehending.
“Is anyone here arguing that the business records weren’t falsified? Or that any falsification lacked the intent to defraud? I’m seeing arguments that someone other than Trump committed the falsification. I’m seeing the argument that the additional element for a felony in the first degree isn’t present. But I’m not seeing the argument that no crime was committed.”
Of course, on both. On the intent to defraud, who actually was defrauded? Melanuia? The electorate wasn’t defrauded cause the checks were signed and bookkeeping entries were made after the election. Besides Federal Election law, in the case of national elections, preempts state election law so NY doesn’t have a legitimate interest in the alleged falsity of the records. Moreover, going just from Cohen’s invoices, there is little reason to question the entries and checks.
The case against Trump is built around Cohen’s story that Trump knew that Cohen’s bills for legal fees actually were for the payout to Stormy Daniels for her NDA. So, it was his responsibility to distinguish between legal fees and repaying the settlement agreement in his bills. The accountant, etc essentially placed the entries where Cohen had told them to - as legal fees. So, Cohen testified in court that Trump did know the breakdown of those payments. But Cohen is also an admitted liar and thief from Trump. He is a convicted felon, serving time, and a disbarred attorney, the least of which reason for that was his breaching of Trump’s attorney/client privilege just because the DA asked him to. The privilege belonged to Trump, and not Cohen. The judge should have suppressed all of Cohen’s testimony for that reason alone. And, somehow, despite all that, the jury is supposed to believe Cohen.
It's unfortunate that the paraphernalia of legal, constitutional and socially normative legitimacy are being employed to justify an obviously corrupt enterprise. I have a question. Will the resulting delegitimation of our power elite be an intended, or an unintended consequence?
Almost 50 years ago, I sat in law school and listened to roughly half of the class precisely spout the propaganda line that they knew would benefit them. The other half sat through it and waited to get their tickets punched. Since then, year after year of compliant parasites have oozed their way through the system. The left wing hired the leftier wing. Lather, rinse and repeat.
Either the parasites will wipe out the hosts, or the hosts will manage to defeat the parasites. Trump is a sideshow, a misdirection. Keep your eye on the ball.
I appreicate all the legal beagles going over the legalese and telling us that the case against Trump is weak and should be thrown out on appeal or return a finding of not guilty.
But...we are not a government of "laws not men". Judges can do whatever they damn well please, unless and until some other judge reins them in. And if they don't then the unjust verfict will stand. Similarly, it doesn't matter how weak the evidence is, the 12 Liberal/left Democrats on the jury will all vote Guilty because they hate TRump.
The whole trial is out of order. Its about Liberal/leftist using LAWFARE To destroy the Republican nominee to win 4 more years for Biden. Its the legal elite of NY, telling the American public "Fuck you and your vote, we'll decide who's President". And the Liberal/leftists all applaud, because they have only principle: "Just win baby. Just win". All the while chanting about "Democracy", just like the totalitarian Commie dictators used to call themselves "A people's republic"
This circus should have stopped on Day 1, by a Federal Judge. But no, it must go on, because the Judges will it.
"Is anyone here arguing that the business records weren’t falsified? Or that any falsification lacked the intent to defraud? I’m seeing arguments that someone other than Trump committed the falsification. I’m seeing the argument that the additional element for a felony in the first degree isn’t present. But I’m not seeing the argument that no crime was committed."
Wow. It takes a special kind of stupid to write that, Left Bank. Show me in the New York business regulation code where legal expenses are explicitly defined and how payments to Michael Cohen do not fit those explicit definitions? I will answer for you- they don't exist. The prosecution is providing the explicit definition itself, but that is completely inappropriate as a defendant has a right to know the rules before he is charged. Now take the next step- who provided the labeling in the business records? It wasn't Trump as the prosecutions' own witnesses testified- it was the accountants and the software that provided that labeling but, again, it doesn't matter because they were also in no position to be able to follow a definition being provided after the fact by the prosecutions' interpretation of the law. Trump can't break a law if he isn't the one that broke it, and I do argue no law was broken here- it is completely reasonable for payments to Michael Cohen, Trump's lawyer, to be classified as legal expenses, and completely unreasonable to do anything else.
So, in summary:
(1) Trump is not the one that classified the payments to Michael Cohen as legal expenses- Cohen was hired by Trump to take care of things like NDAs in these matters, all of which were legal documents with consideration paid for the signing of these documents by Daniels' and her attorney. In what world does one not classify such transactions as legal expenses? You literally have to be a complete fucking moron to believe otherwise or be a complete fucking liar to argue otherwise. Common sense says these expenses were reasonably labeled in the accounting software all along. So Trump, who didn't even apply the labels, can't have committed a crime, nor did the accountants commit a crime- common fucking sense was being used.
(2) The payments for the NDAs is not a crime. Not publicly declaring the purpose of the NDAs is not a crime. Seriously- this is also just fucking common sense- so you are either a moron, Left Bank, or a fucking liar willing to make any argument necessary to support this unjust criminal prosecution. And the payments can't reasonably be construed to constitute a campaign contribution since Trump used his own damned funds to pay it. Michael Cohen pleaded guilty to a campaign finance crime he didn't commit since he was fully reimbursed (and then some) for the payments to Daniels. Bragg might as well prosecute Trump for buying his food and healthcare and not declaring it as a campaign contribution- this prosecution really is that ridiculous, like you in this thread.
Left Bank of the Charles said...
Is anyone here arguing that the business records weren’t falsified? Or that any falsification lacked the intent to defraud? I’m seeing arguments that someone other than Trump committed the falsification. I’m seeing the argument that the additional element for a felony in the first degree isn’t present. But I’m not seeing the argument that no crime was committed.
Trump paid a lawyer to secure an NDA. There is nothing illegal about that.
That is a legal expense. Properly recorded and entered into the ledger as a legal expense.
Period. End of story. There is no crime there. The FEC investigated and said there was no crime there.
If Trump did use campaign funds that would have been a crime and they would have charged him with that.
But he didn't. Trump did exactly what the law stipulated he should do.
Left Bank is that special kind of stupid, just like others that want Trump convicted of something, or anything, no matter what the facts are.
Kind of like the crowd at Jesus trial before Pilate where I went back to the book of Matthew and read this-
Pilate responded, “Then what should I do with Jesus who is called the Messiah?”
They shouted back, “Crucify him!”
23 “Why?” Pilate demanded. “What crime has he committed?”
But the mob roared even louder, “Crucify him!”
It can't be illegal to both do and not do something- illegal to have paid for the NDA using campaign funds, and also illegal to have paid for it with personal funds. NDA's are not illegal. Damned if you do, damned if you don't- at least if you are Trump.
Leora
I went back and looked at accounts of Edward's affair and the payments. Edwards was tried for campaign finance violations but the result was a hung jury. In Edwards case there were a lot more associations with his campaign than in Trump's case. IIRC a campaign official claimed to have paid the mistress out of his pocket. A known Edwards support was solicited for funds but supposedly outside the campaign. Another Edwards staffer publicly claimed for some time to be the child's father. In the end though, no smoking gun indicating campaign funds had been used improperly was found.
Piling on but with a slightly different take, business records were admittedly falsified by Michael Cohen. That was his clear testimony yesterday, and nobody is New York is charging him for that crime. In making the falsified business records, Michael Cohen stole $60,000 from Donald Trump. It was fraud for the purpose of embezzling money, and Alvin Bragg and Letitia James have shown no interest in prosecuting this crime.
I think what Lefty Charles meant was whether Trump committed fraud by falsifying a business record. Well, I’m still waiting for the evidence. As Yancey points out, it isn’t calling payments to his lawyer “legal fees”, because the ordinary person would consider payments to a lawyer to be legal fees. Was it overpaying Cohen, when Cohen falsified records? It seems very novel to prosecute the victim of fraud for fraud. That brings us to Bruce’s point, and Aggie points out the various media legal talking heads, Trump followed the advice of his legal counsel. That’s not a crime, but it is being called a crime because his lawyer was committing them. Even if you accept the novel idea that Trump should have no better and is complicit in the fraud, then 1) the statue of limitations has expired, 2) this is a misdemeanor, and 3) what is the other crime Trump committed?
And all of this begins with accepting as fact the allegation that Stephanie Cliffords had consensual sex with Donald Trump. Her story of the affair has never been consistent and she has denied it ever happened. If you can wrap your head around the possibility that she may be lying about the affair, then you see another conspiracy to blackmail Donald Trump. This conspiracy has ample evidence to support it. For starters, the state’s own witnesses have acknowledged, under oath, of concocting similar conspiracies including ones to defraud Donald Trump to hurt him. So yeah, it does seem like people were intending to commit fraud, but so far the prosecution’s witnesses haven’t shown Trump’s intent at fraud beyond wanting to shield his wife from the behavior of the prosecution’s witnesses.
Finally, what of the fraud being perpetrated by the Judge? Merchan has demanded a gag order on anybody pointing out his conflict of interests in this case. Has Judge Merchan told the jury about his daughter’s position as President of a Democrat Super PAC? Might that bias the jury to know Merchan’s family is financially benefitting from his participation in trying Donald Trump? Isn’t his use of the gag order interfering with a party, his family considers to be the opposition, from speaking freely during an election period? Again, it certainly seems like someone is manipulating normal business for the purpose of committing a fraud on the American people, but I’m still waiting on the evidence that it is Trump doing it.
Question:
In the Georgia case, the defense filed a motion to quash a small number of the charges due to the lack of specificity in those charges. The defense succeeded on quashing those charges. Why were similar motions not filed here, or were they and I missed that?
Breezy,
Merchan has denied all attempts by the defense to force the D.A. to specify the charges.
Merchan is a corrupt Judge.
It is illuminating that Left Bank, who surely gets his news from lefty sources, took it as incontrovertible that a crime has been committed.
I was trying to follow along with InnercityPress on Twitter and not doing too good of a job, but this jumped out at me at the end of the day when Trump's lawyer asked for a dismissal. Matthew reported that the Prosecutor said, "A rational juror could conclude that the business records contained false information. It is sufficient if the defendant set in motion the scheme that led to the false records." That's pretty wide open to interpretation, right? I mean, I think I'm rational, but I'm having a hard time defining "the scheme". Is "the scheme" Trump paying extortion? Or is "the scheme" Trump being in business at all?
It seems to me, if I'm as rational as I think, that Trump paid a lawyer to do lawyer things and that lawyer lied, and cheated, and stole. So in that case "the scheme" was hiring Cohen as a lawyer instead of a lying, cheating, thief. (Is the synonym joke too obvious?) At any rate, if you've reimbursed an attorney in NYC for tickets, car service, lodging, etc, now is the time to get your ducks in a row, because "Hey Steve, my brother-in-law is coming into town, big Knicks fan, can I use your tickets?" could be a "scheme" that sets in motion "false information in business records".
Breezy said...
Question:
In the Georgia case, the defense filed a motion to quash a small number of the charges due to the lack of specificity in those charges. The defense succeeded on quashing those charges. Why were similar motions not filed here, or were they and I missed that?
Merchan is a corrupt piece of shit.
1. His family has raised millions of dollars for Democrats off of this trial.
2. He has donated money to many Democrats, democrat organizations, and directly to Joe Biden recently.
3. He will not allow the FEC investigator who investigated this specific activity testify in court why the FEC did not find anything here that violated federal law.
4. Merchan is consistently refusing to define the jury instructions or what the defense is defending itself against.
This is all purely reprehensible. Forcing the defense to defend Trump not knowing what he is defending himself from is an obvious due process violation.
And this is only happening because Merchan was selected to oversee this case. It was not random selection like every other judge is selected everywhere.
On top of the obvious conflicts of interest that Merchan has. His family is rich now.
"Merchan’s rulings have largely favored the prosecution, including some rulings that left some of us mystified.
Judge Merchan continues to allow the jury to hear references to campaign-finance violations that do not exist.
After gutting any use of a legal expert to testify on the absence of any such violations, the judge allowed the jury to hear Michael Cohen state that the payments to Stormy Daniels were clearly campaign violations.
All that Merchan would offer is a weak instruction telling jurors not to take such statements as proof of a violation.
The alleged campaign-finance violations allowed Cohen to try to implicate Trump. However, it is doubtful that Trump could have been convicted on such a charge in any other venue.
It is precisely what the Justice Department tried and failed to do with John Edwards, a Democratic candidate.
After that unmitigated failure, the Justice Department dropped this theory of hush money as a campaign contribution."
Merchan has allowed a repeat perjurer, con man, and thief to state that this is "clearly a campaign finance violation."
But Merchan will not allow the FEC investigators, actual experts on campaign finance law who had to study and were possibly involved in past cases and past losses in court like the Edwards prosecution testify why they determined it wasn't.
"It doesn’t look like the prosecution has to prove that “another crime” was committed, just that the “intent to defraud” included an intent to commit another crime or an intent to aid or conceal the commission of another crime. In other words, this goes to the level of intent that has to be proved."
Sixth Amendment: "In all criminal prosecutions, the accused shall enjoy the right. . .to be informed of the nature and cause of the accusation."
So, if accusation 1 is dependent on accusation 2, you have to inform the accused of the nature and cause of *both* accusations.
But then, of course, we know that you don't actually give a crap about niceties like fundamental rights. . .
How can it still not yet be determined what law defines the crime?!
Because the only "crime" here is "Trump bad"
Is it possible that Justice Merchan said "Just relax" to the defense lawyer because he knows that, in the end, he will hold the prosecution to account for failing to define the crime?
No, it because "Justice" Merchan, like almost all rapists, just wants his victims to lie back and let him get on with it.
I know, it's much more likely that Merchan said "Just relax" because it's irritating to listen to an agitated lawyer, even when, as here, outrage is part of his argument.
Um, it's a rather basic civil right that they prosecution has to let you know what crime you're being charged with, so you can try to defend against it.
The fact that the judge and the prosecution still can't agree on what Trump "crime" they are "prosecuting" him for, after the prosecution has rested, and while the defense is trying to provide a defense, is properly grounds for at least a mistrial, and realistically any honest judge or "justice" would issue a directed verdict for the defense on all charges.
But since this thing is clearly a corrupt travesty, nothing actually matters
It’s disheartening to see such malice in a Supreme Court justice, acting or not. He’s basically giving us all reason to distrust any outcome of any case before his court. He needs to be expelled and made an example of, somehow reaping what’s he’s sown 100-fold.
Thanks for the responses to my question.
tim maguire said...
The self-righteous commenter’s explanation is how I’ve understood the case—the failure to report a campaign expenditure. But the prosecution has not shown that it was a campaign expense
Except that's a Federal offense, and the State can't do jack about those, any more than the Feds can prosecute you for violating a State law
Maddad said…
It seems to me, if I'm as rational as I think, that Trump paid a lawyer to do lawyer things and that lawyer lied, and cheated, and stole. So in that case "the scheme" was hiring Cohen as a lawyer instead of a lying, cheating, thief. (Is the synonym joke too obvious?) At any rate, if you've reimbursed an attorney in NYC for tickets, car service, lodging, etc, now is the time to get your ducks in a row, because "Hey Steve, my brother-in-law is coming into town, big Knicks fan, can I use your tickets?" could be a "scheme" that sets in motion "false information in business records".
Perhaps that will be the crime: Trump knowingly hired the lying, cheating, thief that is Michael Cohen and fraudulently called him his lawyer.
"Sentence first, verdict afterwards"
Breezy said...
"Question:
In the Georgia case, the defense filed a motion to quash a small number of the charges due to the lack of specificity in those charges. The defense succeeded on quashing those charges. Why were similar motions not filed here, or were they and I missed that?"
They were and you missed it.
How does one relax when the judge is a commie crook like Merchan.
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