Rov_Scam
3mo ago
Rov_Scam
3mo ago
Thanks. I understand what you're getting at but this falls more into the category of bad defense strategy than anything that's going to get overturned on appeal. The defense argued for the inclusion of the "willfully" language in the jury instructions and the court granted their request. If they felt the need to define willfully then they could have made that argument, but they didn't. I agree that the explanation of FECA was insufficient considering how complicated the law is, but my impression is that both sides were trying to keep things as simple as possible for the jury to avoid confusion. Unless Trump plans on mounting a quixotic ineffective assistance of counsel defense, I doubt this will be an effective line of appeal. In the case you cited the problem wasn't that they didn't define a term but that they materially misstated the men's rea requirement.
Rov_Scam
3mo ago
With older items, it's a lot harder to have that same thrill because eBay has destroyed price arbitrage between insiders and outsiders. Anything valuable gets sold online; there are rarely deals for actually-rare collectibles.
That's why I think it's better to collect stuff where the hard to find stuff is just harder to find and not necessarily more valuable. Consider record collecting. If you're looking for that super-rare Beatles UK first pressing then yeah, you're going to pay an arm and a leg for it, because The Beatles are one of the most popular bands in history and there are a lot of fans vying for the collectibles. On the other hand, if you're trying to collect the complete discography of an independent record company, most of the stuff you're going to have trouble tracking down is the stuff that didn't sell well and accordingly doesn't have a lot of demand; it's the kind of stuff that record stores price at a buck when it comes in (usually as part of a large auction lot) so it isn't sitting on the shelves for a decade. I love Bruce Cockburn and I buy original Canadian pressings of his records when I can find them (though the American ones are of higher quality) but I think the most I've paid for an album is like $7.00. This is the kind of guy who's incredible but little known; a bought a few of his records at a well-known used record store in Pittsburgh and the owner got excited and told me he intentionally marked the records down in the hope that someone would become a fan based on price alone.
On the other hand, while E-Bay has complicated the market a bit, it really hasn't changed that much. While E-Bay has made it more likely for someone who doesn't know what they have to get top dollar for a collectible because they happened to list it at the right time, you can still find deals the old-fashioned way if you have the patience. Most of the old garage sale finds are still garage sale finds unless you're talking about baseball cards or Star Wars toys or Christmas Tree ornaments or any of the other items that seem to only exist as collectibles. If someone has a painting they're under the impression their mother bought at a starving artist's expo in 1966 they aren't going to go to the hassle of listing it individually on E-Bay on the off chance that it's worth something. If you're eagle-eyed and happen to discover that it's actually a Whistler, then you've made the score. In the pre-Ebay days, most of the stuff that anyone thought of having any value was either sold through dealers or through listings in specialized collector's magazines. I'd estimate that the number of people selling genuinely valuable stuff at flea markets, garage sales, and the like isn't that much lower than it was in the '90s.
Rov_Scam
3mo ago
Honestly, it sounds more like they gave you a crappy computer more than any problem with Microsoft. I haven't used Teams so I don't know if the problems you describe are endemic to the software or downstream of the issues you seem to be having with your computer, but I'd say that in general it isn't fair to judge a company based on one product that isn't anywhere near a flagship. I agree with you on Outlook but I've used both it and Gmail and both have their problems depending on what you're trying to do. Microsoft Office in general is miles ahead of what little competition there is, and I say this as someone who has tried to implement non-Microsoft solutions for business purposes and been forced to use Google products by employers. I worked for a company that wanted us to use G-suite and the whole thing was garbage to the point that it was easier to just do the work in Office and convert it rather than use G-Suite directly. It all depends on what you're comparing it to.
Rov_Scam
3mo ago
I apologize for any confusion I may have caused, but I'm not exactly sure what you're arguing here. The court laid out the necessary intent standard in the jury instructions. If you think that instruction was incorrect, you need to tell me what the court should have said. I'd look myself but I don't happen to have a copy of the New York jury instruction manual in my office. If that standard is appropriate then whether the prosecution met it is a factual issue, not a legal one.
Rov_Scam
3mo ago
I think you may have misunderstood me. I was responding directly to your hypothetical, which involved a defendant who was already convicted and where there was a case pending on appeal that challenged the constitutionality of the underlying offense. In that case, the defendant would wait out the other case and file a writ of habeas corpus if the ruling was beneficial; an appeal at that point would be moot before it is heard. Generally speaking, yes, you can challenge the constitutionality of the law under which you were convicted on appeal, though in almost all cases you have to raise the issue at the trial level to preserve it.
Don't take my comments about the extra layer too seriously. In your first hypothetical my thought was that the primary aim of the statute was to prevent document fabrication with sodomy being a collateral matter, so the constitutional issue wouldn't be as central to the case. In your second hypothetical the goal of the statute isn't to prevent motor vehicle use but to prevent sodomy, making the constitutional issue more salient. I'm not basing this on any concrete legal principles, just my own interpolation based on how hard these are to get, so it could really go either way.
That all being said, I'm not sure what your point is. Trump never raised any constitutional issues, and even if could still present them I doubt he has much of an argument that the relevant FECA provisions are unconstitutional.
At the end of the day, even just explaining how this is supposed to work, as a technical matter, is just driving home the fact that this entire sham is a cleverly-designed procedural trick to prosecute a politician for something that very well may be constitutionally-protected behavior.
Aside from the comment about habeus, none of what I've been talking about for the past day is related to procedure. As a more practical matter, Trump's cries of selective prosecution probably did more to hurt his case than help it. His lawyers spent inordinate amounts of time on irrelevant issues rather than focusing on the actual elements of the crime. Their treatment of David Pecker was particularly egregious, as he was a minor witness who was there for background. Rather than drill into the fact that he couldn't provide any information about the Stormy Daniels payments, the defense has to ask him about every story he ever bought to try to make it look like the payments were all normal operating procedure. It was almost like the defense forgot that the judge dismissed the McDougal claims and they thought they had to litigate them. The directions the defense went on cross and in their statements give the impression that the goal wasn't so much to rebut the prosecution's case as it was to rebut any comment made that cast Trump in an unfavorable light. Like how much energy they spent trying to disprove his relationship with Stormy Daniels. The right move was to just stipulate to the affair and keep her off the stand but instead they spent much of the early trial badgering her as though there were any chance she'd say she lied (and even that wouldn't have helped the defense that much). This was a winnable case for the defense but their client's demands sunk it for them.
Rov_Scam
3mo ago
I don't know what you want me to say here. You're allowed to call crappy witnesses. The defense is allowed to cross examine. The jury gets to decide whether to believe them. Whether reasonable doubt exists is a matter for the jury, not the court. The appeals court doesn't pore over the trial transcript and decide if the jury made the right decision.
Rov_Scam
3mo ago
I understand what you're saying but these are questions of fact for a jury. To take it individually:
There is very much a dispute as to whether Cohen violated FECA and whether Trump knew about FECA.
Whether Cohen violated FECA is irrelevant since the New York law doesn't require that the predicate act actually be committed, only that intent exists to cover up a violation. Whether Trump knew about it is a question of fact for a jury.
Second, obtaining an NDA is legal work so hard to see how it is non existent. Moreover even if it were the sole person tying Trump to it is Cohen. Cohen stole 60k from Trump which Cohen viewed as “self help.” This guy would clearly lie, steal, and cheat if it could help him in any way. You don’t convict based on a guy like Cohen.
Whether or not the invoices were legitimate is a factual question, and ultimately an irrelevant one, since it wasn't raised as a defense. Cohen certainly isn't the most credible person, but the credibility of a witness is an issue for the jury to determine.
Third, FECA requires willfulness. Trump and Co had to know it was wrong; not just intend to do the actions that are prohibited. Your theory of the case then is that Trump and Cohen knew that by Cohen doing it that it was a FECA violation even though if Trump did it himself it would not be a violation. Since Cohen was solely acting as a middle man he wasn’t key to the scheme. There was no need to go through all this “scheming” to protect Cohen when Trump could’ve just done it himself. Trump has been looked at for years and they haven’t found crimes despite being a NY real estate developer. Do we think he knew option A was criminal and option B was not, both would get him what he wants, and he choose A? It just doesnt make sense.
Again, what Trump knew or didn't know or intended to do or didn't intend to do are core factual issues in a case like this. You're entitled to think that the jury got it wrong, but simply disagreeing with the jury isn't grounds for an appeal (at least not good grounds; you could theoretically argue that the verdict was unreasonable given the evidence and ask the trial judge for reconsideration, but judges in general are loathe to second guess juries).
Rov_Scam
3mo ago
Sorry, I was trying to respond while pumping gas. In your hypothetical it wouldn't be an appeal but a post-conviction habeas corpus petition that would be filed after the court declares the underlying offense unconstitutional. I'm not going to go too deep into what the outcome of such a petition would be but I'd note that these are relatively rare and are only granted in extraordinary circumstances, and your hypothetical is complicated by the fact that the records destruction statute puts an extra layer between the defendant and the unconstitutional law. My first inclination would be that the defendant in your hypothetical would not be entitled to habeas corpus, especially at the state level, but I'm no expert.
I would add that the chances of any of this applying in the Trump case are incredibly slim, since Trump didn't challenge the validity of FECA in any of his pleadings and it's unlikely that any of the provisions at-issue will be struck down in the meantime.
Rov_Scam
3mo ago
Deploying troops domestically was the correct response to the Floyd riots, and the failure to do so seriously damaged what remains of our country.
Deploying troops is a serious matter and a last resort to only be used in the most serious riots that are absolutely beyond the control of the police and state National Guard. Once a riot becomes an insurrection the insurance policies aren't required to pay due to the exclusion for acts of war. If Trump had invoked the Insurrection Act he would have drawn the ire of the people he was supposedly trying to help, which is why he didn't do it.
Rov_Scam
3mo ago
The issue wasn't that they made a movie, or that they wanted to show it on TV, but that they paid Comcast a ton of money to make it available for free on-demand. Considering that, most of the time, networks pay the creators to air their media and not vice-versa, this made it look more like a political ad than a normal documentary. I agree that the decision was correct, but the upshot was that PACs that run ads that are virtually indistinguishable from official ads are able to accept unlimited donations, which seems contrary to the spirit of restricted campaign donations. They can't endorse actual candidates, or coordinate with campaigns, but they can run the kinds of relentless attack ads that actual campaigns have been running as long as I've been alive.
Rov_Scam
3mo ago
I wasn't trying to imply that. I think they will delineate limits but I'd be surprised if they get into specifics. Trump's argument is that he's entitled to absolute immunity, and I doubt the justices would go for that. I also doubt they'll let the circuit court decision stand, which means that they're going to have to delineate the bounds of presidential immunity. The problem is that,.since no alternate standard was proposed, neither side has made substantive arguments under that standard, and the current court has been reluctant to make substantive rulings based on arguments the parties didn't make. I'm not saying that they'll punt, just that any decision they give isn't likely to change much in the short term.
Rov_Scam
3mo ago
To get into the weeds a bit, the prosecution never had to argue that the specific pattern of conduct Cohen engaged in was necessarily a violation. The jury instructions stated the law and it was up to the jury to determine if Trump intended to break that law. They determined that he did. If Trump intended to cover up a campaign finance violation the fact that he made a mistake as to whether there was an actual violation is irrelevant. That the facts indicated that Cohen's actions constituted a violation only make the case stronger. Suppose he thought Cohen stole campaign funds and made phony invoices to make the assumed theft look like legitimate payments. If it turned out that Cohen hadn't actually stolen the funds he'd still have the intent to cover up a crime; the law is clear that a crime need not be committed. Similarly, If he thought Cohen had committed a campaign finance violation that hadn't actually occurred and tried to cover it up his mistake of fact wouldn't be a defense. I would note that the defense never tried to challenge this, so it isn't fair game for an appeal anyway.
Rov_Scam
3mo ago
That still doesn't explain the slow walk, though. The DC opinion was so broad that all SCOTUS has to do is what they're probably going to do anyway — issue an opinion that recognizes immunity in certain circumstances but not others and then kick the case back down to the trial court without saying anything about the facts of that particular case. Then the trial court's ruling gets appealed and the high court doesn't have to rule on it until next year.
It's more likely that they're just running behind. I don't think anyone has any theories on why the other 17 cases are taking so long.
Rov_Scam
3mo ago
It's a question of law but it's irrelevant. If you think you're committing a crime then you've satisfied the intent requirement, regardless of whether the action you committed actually is a crime or not. This is how people get busted on To Catch a Predator type shows. They could argue since everyone involved was of legal age there was no crime, except they obviously showed intent to break the law even though there was never any chance of anyone being harmed. Whether or not this intent exists is a question for the jury.
Rov_Scam
3mo ago
To be clear, the motion in limine never asked the court to preclude all testimony relating to Cohen's guilty plea. It only asked to prohibited the prosecution from arguing that it was evidence of a violation. The defense even made it clear in their motion that they intended to ask Cohen about his convictions on cross. The defense never claimed the limiting instruction was insufficient. I don't see anything here for an appellate court to work with.
As for your second argument, I wasn't trying to argue that this is a strict liability crime! I was simply trying tease out the general principle that "intent" isn't necessarily as specific as some seemed to think it was , partially due to confusion between the FECA requirements and the requirements of the law Trump is actually being prosecuted for. I'm not going to reproduce the jury instructions here, but they go in at some length about what constitutes intent for the purpose of the New York statue. Bringing up cases from a different jurisdiction that involve a different standard don't do much to bolster arguments about intent requirements in this case. In any event, I can't find anything in the pleadings to suggest that the Defense ever raised this issue or had any problem with the jury instructions that were ultimately given.
I think the ultimate problem here is that the jury came to a conclusion some people disagree with. You don't think Trump had the requisite intent? That's fine, but the jury heard the evidence presented and came to a different conclusion. It's okay to disagree, but thinking the jury got it wrong isn't grounds for an appeal.
Rov_Scam
3mo ago
The prosecution only had to prove that Trump intended to conceal a crime. They didn't have to prove the crime itself, or even that a crime was committed. The jury can infer intent from the course of conduct, even if none of the individual elements of that conduct are crimes or even elements of the crime. When you have testimony by people saying they committed FECA violations on Trump's behalf, it's no surprise that the jury found there was intent. When people say that Trump never explicitly said he was trying to conceal the crimes or knew what the crimes were, they're either inappropriately conflating the requirements of FECA itself with the crime he was actually charged with, or assuming that direct evidence is necessary.
That's why I brought up the burglary example in an earlier post. You don't need the trespasser to be caught in the act of stealing or provide a witness who says the trespasser told him he intended to break in and steal something. If the jury finds through other evidence that the circumstances prove an intent to steal, they can convict. In the Trump case you might not personally believe that the evidence was persuasive, but arguing insufficiency of evidence is rarely enough to overturn a conviction. Appellate courts aren't there to second guess juries.
Rov_Scam
3mo ago
Which is why the judge didn't allow the guilty plea to be used as evidence that a crime occurred. I was merely responding to the OP's contention that there was some controversy within the FEC as to whether there was a violation because while that may have been true with respect to Trump, it wasn't with respect to Cohen. Cohen testified, nonetheless, to having committed all the elements of the violation he pleaded guilty to, which renders it a moot point.
Rov_Scam
3mo ago
None of it is prosecutor made because, first, I'm a civil lawyer, so there are no prosecutors involved, and, second, because prosecutors don't make laws. They can propose theories of liability and it's up to the judge to decide whether they are persuasive or not. It's all judge made, unless it's statutory.
Rov_Scam
3mo ago
The thing that you and a lot of Trump supporters seem to miss when discussing the case is that you assume that the prosecution had to prove that Trump had to have committed the FECA violations himself in order to be criminally liable. That's not true; neither party disputed that the law applied to covering up misfeasance by someone else. Here, they had Cohen testify that he knew the payments were illegal at the time he made them, and that Trump reimbursed him through phony invoices for nonexistent legal work. That's the prima fascia case right there. Cohen was investigated and pleaded guilty (though his plea couldn't be used as evidence in Trump's case), so there's nothing controversial about whether a FECA violation actually occurred, unless you want to talk theoretically, which is pointless since Cohen isn't going to appeal.
Whether or not the case is preempted is a trickier matter, but New York didn't charge Trump with any campaign violations. He was charged with creating fraudulent records. In fact, the fact that this law has never been applied to FECA violations before actually tips the needle against preemption. If the law isn't aimed at regulating elections but at preventing fraud generally, then it's harder to argue that it's intruding on the policy goals that congress reserved to the Feds. Courts have already ruled that consumer protection issues relating to campaigns aren't preempted, even though they're directly related to campaign violations, so it's less likely that anyone would do so here. Not that there isn't an argument to be made, it just isn't as strong as some think it is.
I'm not an expert on the NY constitution so I'll leave that question to the Court of Appeals, who have the final say. I will say that whether or not Sharia Law applies in and of itself is a moot point. I imagine Sharia Law prohibits theft, and I don't think you'd have too much of a cross-jurisdictional issue if the predicate offense was theft in a country that has Sharia. If it's one of the things we Americans find more offensive, then prosecution would likely be barred on the grounds that it's contrary to public policy. It's an interesting question but crimes in other jurisdictions being used as the basis for related charges in others isn't exactly unheard of.
Rov_Scam
3mo ago
He didn't run on prosecuting Trump in the sense (as I have seen implied in some conservative outlets) that he made it a campaign promise. He ran on prosecuting Trump in the sense that he cited his participation in the AG investigation. In other words, he ran on his record, which is something every AG candidate does, especially when they were involved in a high profile case.
Rov_Scam
3mo ago
Alright, you and @Ben___Garrison are getting two things confused. The water leak was earlier in the morning and had nothing to do with anyone leaving. At around 10 pm the Fulton County people decided to call it for the evening and began packing up. They finished around 10:30 and people started to leave, including the media and observers. When they told the Secretary of State's office they were told that they were to continue counting through the night, at which point they went back in and began counting. The water main break only ogt into this story through journalistic sloppiness, I'm guessing because someone with a news outlet Tweeted a rumor they overheard and it got reported as news. Either way, I don't see what this has to do with any evidence of fraud. I'm guessing the argument is that they wanted to get the observers out of there so they could pull all those fake Biden ballots they had hidden under the table and count them, but there's no evidence of this. It's pretty clear from CCTV footage that the ballot boxes they pulled out from under the table at 11 pm were the same ones they pushed under the table at 10:30. I don't know how the observers present would have been able to tell a fake ballot from a real one. I don't know how you can convince dozens of election workers (who are usually county employees and generally don't want to be there) to commit blatant fraud without any of them giving up the whole thing. I don't know how you could convince a Republican state government to go along with the fraud and the subsequent coverup. I don't know the mechanism for how fake ballots are supposedly generated. This entire theory makes no sense. Even if the accusations of the county phonying up a water main break to get observers out of there were true, you still have to prove the fraud.
Rov_Scam
4mo ago
Strictly speaking they aren't, but that isn't really a concern as a practical matter. I practice an area of tort law that's mostly common law but has been somewhat modified by statute. If I'm arguing before a judge the standards aren't any different whether I'm arguing common law or statute, and most of the statutory argument is indistinguishable anyway because it's still based on judicial interpretation. I don't go into an argument thinking "Well, this is statute so I have to do this differently" or anything like that.
Rov_Scam
4mo ago
I take it you've never been to law school before, but it goes something like this: You read cases as your class assignments and the professor asks questions about them. Most of the questions are hypotheticals that change the facts slightly to see if you can apply the principles of the ruling to different situations. Then the professor poses a hypothetical that's nothing like the original fact pattern and asks what the result will be. Then when finals come you get more questions like that where nothing is exactly on point and you have to argue based on broad principles alone. Then you get to do the same thing in the bar exam, especially the multistate, where they might give you a fact pattern where you read it and you think "okay, the guy is clearly liable" and the final question asks "If the court finds that the defendant isn't liable, what is the probable reason?" and gives you four crappy answers from which you have to choose the most plausible.
As a practicing attorney, yes, most cases are boring and straightforward, and don't require too much creativity. But this isn't always the case. New situations require new legal theories. Look at autonomous vehicles; there's a whole universe of potential problems that could arise there that the law is seemingly unequipped to deal with, except through general principles. "No one has been convicted based on this specific fact pattern before" isn't a defense. This is especially true in the world of white collar crime, where the argument isn't so much that the defendant didn't do what the prosecution said he did but that what the defendant did wasn't a crime at all. Not everything is going to slot into convenient and obvious categories, and unless there's a viable legal argument for why a particular course of action shouldn't be a crime, a jury is going to get to decide.
The PDF I posted was only the specific section dealing with the FECA violations. There is one of these for each section of the jury instructions, and posting all of them would be a bitch on mobile.
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