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Culture War Roundup for the week of May 27, 2024

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Those are avenues for appeal, but they aren't all good avenues for appeal. Keep in mind that I haven't read a full trial transcript and my knowledge of the specific laws involved is limited to what I read in the news. To go one by one:

  • This isn't really an issue since Cohen testified. Even if an appellate court were to rule that the specific evidence of the plea bargain was inadmissible, the fact that Cohen outlined his actions in detail for the jury with the defense being given an opportunity to cross-examine likely puts this in the harmless error category. There is the fact that in New York they can't convict on accomplice testimony without corroboration, but the jury was properly instructed.
  • I'm not familiar with the specific scientier requirements in this case, but as long as the jury was properly instructed of them, an appellate court is loath to contradict their findings.
  • See above. It's another "the evidence wasn't sufficient to prove x" arguments that don't usually go anywhere. Again, I haven't read the full trial transcript, but as long as there was some reasonable basis for which the jury to reach their conclusion, an appellate court isn't going to set aside the verdict.
  • This goes back to the first point. Cohen plead guilty to a Federal charge. IIRC, there were state charges involved as well, and if his testimony implicated state law violations, the bootstrapping argument is moot.
  • The Appellate Division already ruled on the recusal issue, and I doubt the Court of Appeals will take up the issue. The Wiesselberg thing is moot because the defense didn't protect the record. If they had a problem with the prosecution relying on his statements without calling him they could have called him themselves. The fact that they didn't want him anywhere near that courtroom may be good trial strategy, but there are tradeoffs. I usually load up my witness lists with people I have absolutely no intention of actually calling for the simple reason that if things go sideways and the case goes to trial and some odd reason arises where I need to call them I don't want to get the "He wasn't on the list" argument from Plaintiff's counsel and deal with the subsequent malpractice suit.

For the interest of completeness, I have no idea whether Trump personally cutting a check would have avoided legal scrutiny, but the ambiguity doesn't really bother me, because I don't like the idea that someone trying to be President would blatantly hide information from voters. Hell, at least have the foresight to do it before you're actually running so there's no campaign money to speak of.

I think you're missing a lot of details specific to the case.

Even if an appellate court were to rule that the specific evidence of the plea bargain was inadmissible, the fact that Cohen outlined his actions in detail for the jury with the defense being given an opportunity to cross-examine likely puts this in the harmless error category.

Cohen testified, and was allowed to testify, at length not just on his actions, but that his actions violated federal law, while limiting the ability of the defense to cross-examine on matters of law. The latter is fair; the former is not harmless error.

I'm not familiar with the specific scientier requirements in this case, but as long as the jury was properly instructed of them, an appellate court is loath to contradict their findings.

Yes, if the jury were adequately instructed. The disclaimers here, like the curative instructions, might have been usable for the typical case, but they're woefully incomplete for one here. For the matter of "INTENT TO COMMIT OR CONCEAL ANOTHER CRIME":

For the crime of Falsifying Business Records in the First Degree, the intent to defraud must include an intent to commit another crime or to aid or conceal the commission thereof. Under our law, although the People must prove an intent to commit another crime or to aid or conceal the commission thereof, they need not prove that the other crime was in fact committed, aided, or concealed.

Again, I haven't read the full trial transcript, but as long as there was some reasonable basis for which the jury to reach their conclusion, an appellate court isn't going to set aside the verdict.

There's some question about whether they are, but more seriously, the jury instructions did no adequately that jurors needed to find that the intent. Again, see above link.

Cohen plead guilty to a Federal charge. IIRC, there were state charges involved as well, and if his testimony implicated state law violations, the bootstrapping argument is moot.

The state campaign finance challenges were New York election law 17-152, which itself in turn requires an 'unlawful means'; there's no swappero between federal and state campaign finance laws for this conviction.

The underlying crime that the state theorized were some combination of federal campaign finance laws, state laws about false business records, and state tax record laws. If the jury convicted based on state tax record or false business record statutes... well, there are other issues, but it would avoid the federal question. But the judge did not require all jurors to record what theory they signed onto, or even to agree on what underlying theory; if even one juror convicted on the federal campaign finance laws, the issue remains relevant and is a reversible error.

And because the unlawful means must promote or prevent the election of a candidate to be usable for 17-152 (which neither internal business records no state tax records are likely to do), it's very plausible that the jurors convicted on a FECA theory.

The Appellate Division already ruled on the recusal issue, and I doubt the Court of Appeals will take up the issue.

I mean, I doubt the New York Appellate Division or Court of Appeals would take up any issue seriously.

The Wiesselberg thing is moot because the defense didn't protect the record. If they had a problem with the prosecution relying on his statements without calling him they could have called him themselves.

I think it's something more specific to the false tax records theory not having sufficient evidence for a jury to convict, and that Wiesselberg is out of the defense's control (as he's a) in Riker's and b) would almost certainly plead the fifth), but I'll admit it's definitely a less plausible matter and you're right that the defense avoided calling him more because he's a weasel and this would limit his utility in an appeal regardless of whether by strict precedent it 'should' matter.

I have no idea whether Trump personally cutting a check would have avoided legal scrutiny, but the ambiguity doesn't really bother me, because I don't like the idea that someone trying to be President would blatantly hide information from voters. Hell, at least have the foresight to do it before you're actually running so there's no campaign money to speak of.

That might be nice as normative matter, but as a descriptive one, the current sitting President coordinated with a large number of both intelligence agency spooks and tech companies to excise a negative story right before the last election. So there's your first problem.

But the more serious one is that we are supposed to live in a country of law, not a country of whatever laws someone can stretch to cover something kinda if you squint and have a really friendly judge and jury. You are not going to see a sudden outbreak of convictions for blatantly hiding information from voters, nor would any competent lawyer have informed people that it was illegal.

I didn't read the entire transcript, but I scanned Cohen's testimony, and I couldn't find any instances where he's asked to draw legal conclusions. The only thing approaching that that I could see, as you said in your initial comment, was that he admitted to having plead guilty to certain Federal crimes. The defense never challenged the admissibility of this testimony in general. They filed a motion in limine to prohibit the prosecution from using those pleas as evidence that the underlying crimes were committed, and they won that motion. The evidence of the pleas was admitted so that the jury could evaluate Cohen's credibility, and the judge gave a limiting instruction as soon as they came up. The defense's motion conceded that the plea evidence was admissible for that purpose. They never tried to get the evidence out entirely, and it wasn't in their interest to, either, because without the evidence of the pleas, it would seriously hinder their attempts to discredit Cohen. Given the limited nature of what Cohen actually testified to on direct, the prosecution probably wouldn't have even opposed a defense motion to keep the plea evidence out entirely, since the defense would have had much less to work with.

Beyond that, I don't want to get into too many details, but inadequate jury instructions and insufficiency of evidence are usually long shots when it comes to getting an appeals court to overturn a jury verdict. I argue in another post somewhere that intent (most of the time) doesn't require knowledge that the action is illegal. As for that last bit, it wasn't so much about hiding information from voters as it is hiding expenditures from voters. Laws requiring disclosures were created with the express intent of creating a certain transparency in election-related spending. I was reacting to the commenters here who were saying that Trump was in a kind of Catch-22 because there was no way he could have made the payment without drawing the scrutiny of the FEC. This clearly isn't true; if I were Trump's attorney I would have told him that if he wants to be completely safe he should pay it out of his personal funds and report it as a campaign expense. Alternatively, he could pay it out of his personal funds and not report it because unless it's obvious that sort of thing is rarely punished. Paying it out of campaign funds and reporting it isn't recommended but at least it makes it look like he's on the up and up. What I wouldn't tell him to do is to have a third party make the payments so they can't be traced to him, and then create phony documents to obfuscate the reimbursement.

The only thing approaching that that I could see, as you said in your initial comment, was that he admitted to having plead guilty to certain Federal crimes.

And that he hadn't lied about it, and that he was guilty of it, and so on. That's not saying 'x was a violation of Y statute", but it's obviously saying that 'x is a crime'.

They filed a motion in limine to prohibit the prosecution from using those pleas as evidence that the underlying crimes were committed, and they won that motion. The evidence of the pleas was admitted so that the jury could evaluate Cohen's credibility, and the judge gave a limiting instruction as soon as they came up.

I can't find any text of the actual request, but the 'limiting instruction' as delivered was just to say that the pleas do not "constitutes evidence of the defendant's guilt and you may not consider them in determining whether the Defendant is guilty or not guilty of the charged crimes". As a matter of law, it may not be sufficient problem to be reversible error -- SCOTUS caselaw on sufficiency of limiting instructions is thin and messy -- but the pretense that the prosecutors were bringing it up to evaluate Cohen's credibility, rather than to show that there was a FECA violation for Trump to have hidden, doesn't pass the sniff test, and it's not a small part of the trial.

I argue in another post somewhere that intent (most of the time) doesn't require knowledge that the action is illegal.

"(most of the time)" is doing a lot of work, here. The law generally does not require that you know the specific text of the law you're violating, but even that has its exceptions. When the law prohibits 'doing illegal things' the exceptions grow: Liparota is the standard example, here, where a statute about "knowingly uses... in any manner not authorized by [the statute] or the regulations" required the defendant to be shown to know it was actually not authorized, even though that was strictly a question of law. And that has applied in business records cases, such as Ratzlaf most famously Arthur Andersen LLP v. United States.

Now, the statute in Liparota made clear that it required a high level of mens rea, where (unsurprisingly, given the different ages of the statutes and models for state law) the New York statutes are more vague. But, under both federal law and New York law, where no specific level of mens rea is in the statute does not automatically produce a strict liability crime, either! And in this case, the stapling-together of various statutes only elevates the normal concerns.

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.

I mean, I've quoted -- in this very thread, just a couple comments up! -- those same jury instructions. It's not like the FECA part is better, and both the jury instructions and trial transcript point out the fine details of the terms for that, either.

I think I've made it very clear that I'm arguing about the law, not the jury's determinations on facts. I get that you're trying to juggle a lot of conversations, here, but just repeatedly asserting that the question of intent papers over any questions of what the law does or can prohibit this way isn't very compelling or engaging well with my claims.

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.

I've been pretty explicit about my problems with the scienter requirements revolving around what the jury was instructed to find, not whether they found it:

"Yes, if the jury were adequately instructed."

Trivially, FECA requires "willful" violations: the jury instructions contain no definition for 'willful' at all, and discussions in the courtroom with the jury present were minimal. This has overturned convictions for far more egregious conduct on very similar textual lines before (or see this, where the 'ignorance' of the law itself bordered on the intentional if not schizophrenic).

Conspiracy (as in election law 17-152) itself is likewise complex: some jurisdictions do recognize ignorance of the law as a defense in some cases. See Massachusetts (requiring that for an offense that is "malum prohibitum only", "both must have had knowledge of the existence of the law and knowledge of its actual or intended violation") or federal law (where "we have such substantial difficulty in understanding how Alston can be convicted of a conspiracy to defraud by structuring when he cannot be guilty of a conspiracy to structure or of structuring itself" by reason of ignorance of the law for a 'willful' violation statute, or see a case where supplemental jury instructions repeating that everyone should be treated as knowing the law were error). New York state's caselaw on the matter is (somewhat surprisingly) underdeveloped, at least from a quick search, but it's not showing anything on the level of California (which has a bunch of bookies regulation cases, generally favoring conspiracy prosecutions with ignorance of the regulation), either.

The prosecution does not need to prove the underlying offenses, or even that they occurred, yes. But neither can courts duck the question of whether the underlying offenses could actually be criminal, as a matter of law, simply by informing that the immediate offense requires merely that someone intended to do something illegal.

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.

More comments

A few responses:

  1. The issue is the defense objected to allowing Cohen to even discuss his campaign violation plea. The prosecution wanted it in to impeach their own witness. Of course, the real reason was to imply “yes, there was a FECA crime” and that is surely super prejudicial despite the curing instructions. This is all the more galling when the court wouldn’t allow Trump to even offer up the evidence that the DOJ and FEC looked at this case and determined not to bring any civil or criminal charges. That would’ve truly cured the fake i peach meant but it would put a lie to the whole trial.

By the way, the whole thing was made worse by the prosecution stating in closing that it was a fact that Trump committed a campaign finance violation. You put all of that together and it sure looks like reversible error to me.

  1. Re scienter there is not a single piece of testimony that Trump even thought about FECA violations. There was testimony that he thought about the election and wanted the payment for the election (which the prosecution argued and the judge accepted—probably incorrectly—as a campaign finance violation) but literally zero that he wanted the books a certain way to cover up the campaign issue. That is fatal because the government has the burden and it proffered to my knowledge zero evidence.

  2. The bootstrapping point is not moot. The “unlawful means” appears to be a FECA violation IN THIS CASE. That means effectively Trump was convicted because NY law prohibits false bookkeeping if it was intended to cover up federal election law rules. That is…far from obvious.