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PaperclipPerfector  5mo ago (text post)   28012 thread views

Culture War Roundup for the week of May 27, 2024

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Can some one define business records? I have no idea what they are referring to.

There are different levels of business records. Tax returns? Thing you submitted to investors. Internal things you filled out for accounting of a private enterprise? Bullshit compliance stuff for a corporate job where you just pick something?

Small businesses often have really shitty internal accounting.

Am I a felon because I put some joke on a venmo.

Can some one define business records?

Not really directly related (there are better answers below), but the DOJ argued in Yates (2015) that a fish was a "record, document, or tangible object" destroyed for the purposes of Sarbanes-Oxley when a fisherman under investigation threw undersized fish back into the Gulf of Mexico. RBG wrote the 5-4 opinion that "tangible object" for the purposes was required to be one that is normally "used to record or preserve information": not a fish.

Nope.

An inaccurate business record recorded with innocent intent (eg as a joke or by mistake) is not a crime.

An inaccurate business record recorded with intent to defraud is a misdemeanor.

An inaccurate business record recorded with intent to defraud in the furtherance of another crime is a felony.

You are not a felon because you put a joke on a venmo.

Who did he defraud?

Ok so I am a felon too like Trump. I’ve sent mislabeled Venmo’s because I did not want Venmo to know what I’m doing.

So, how does New York State law define the “intent to defraud” for the criminal offense of falsifying business records? A long line of New York state court cases supports an expansive conception with respect to § 175.00 crimes – namely, that intent can be established when a defendant acts “for the purpose of frustrating the State’s power” to “faithfully carry out its own law.” People v. Kase, 76 A.D.2d 532, 537–538, 431 N.Y.S.2d 531, 534 (N.Y. App. Div., 1st Dept. 1980), aff’d, 53 N.Y.2d 989, 441 N.Y.S.2d 671, 424 N.E.2d 558 (1981).

Trump acted with intent to defraud the state of New York by frustrating its power to faithfully carry out its own law.

You did not mislabel your Venmos (as far as I know) with the intent of preventing the state of New York from executing its law, so you are not guilty of falsification of business records (assuming your Venmos are even business transactions).

Where is the evidence that Trump was thinking about NY executing its own laws? If you don’t need scienter, then you’ve eliminated intent from the statute.

I believe the law in question is Any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor.

So to break it down my understanding (which could be wrong, I'm just some bloke on the other side of the world who isn't even a lawyer) of how the technical legal theory of the case works is:

  • Trump falsified business records with the intent to defraud the state of New York by preventing them from executing their laws.
  • He intended to prevent them from executing their laws by concealing the fact that he had participated in a conspiracy to promote his election to public office by unlawful means.
  • The unlawful means in question were Cohen making a payment to Stormy Daniels in order to conceal her story from the public in order to prevent it from damaging Trump's election chances.
  • This is unlawful because it's against federal election law to contribute more than a certain amount to a political candidate, and making a transaction on their behalf counts as a contribution.

Or if you're just making the narrow point of asking how the court could know his state of mind, I think the standard rule is that a jury is allowed to infer that a person intended the reasonably foreseeable consequences of their actions.

I think you're making good and accurate points and it's a shame you're getting downvoted. But there's one point I disagree on.

The unlawful means in question were Cohen making a payment to Stormy Daniels in order to conceal her story from the public in order to prevent it from damaging Trump's election chances.

I don't think this should actually be considered a crime. As I understand it, Cohen pled guilty to it. I think that was part of a plea deal and he just took it because the way plea deals work is that he wouldn't actually receive a better outcome by trying to insist that one, but only one, of the things he was being charged with was false.

But looking at the actual law, the idea that concealing information which could damage Trump's campaign is a campaign contribution is silly. If you're that loose with the standards, practically anything would be a campaign contribution.

I agree that it's kind of a dumb standard to have, but it appears to be the one that exists. If these same events had occurred in Australia the NDA payment would have clearly fallen outside the definition of "electoral expenditure", and this is one of many areas where I think Australian law is better than American law. But Trump is an American, and he has to follow American law.

I don't think that's normally how American law is applied, but admittedly I don't know much about it. But where most people seem to blame an anti-Trump conspiracy, I blame him for losing his case. He intimidated witnesses on social media, so the judge gave him a gag order, then he violated the gag order repeatedly. He didn't stand for the jury like the rest of the court. He's been terrible to many previous lawyers so he was pulling from the bottom of the barrel for his defense.

I think Trump deserved to be proclaimed Not Guilty. But the adversarial legal system is designed around the defendant actually putting a half decent effort into defending themselves. I can sympathize with all the poor folk out there who don't understand what the legal system expects them to do and get screwed on that front, but I have no sympathy for a billionaire. If Trump wasn't a narcissist, I think he could've won the trial.

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There are a few things things wrong with your post.

  1. Trump Organization reimbursed Cohen. The prosecutors treated TO and Trump as the same. Therefore Trump turned the payment by Cohen (which is limited) into a payment by Trump. Trump is allowed to make unlimited contributions to his own campaign. See Buckley v Valeo.

  2. It is far from clear that the payment to Stormy constitutes a campaign contribution. Indeed, the law is designed to limit the ability for candidates to use campaign funds for mixed motive expenses (eg a suit) since the opportunity for abuse is obvious.

  3. So it isn’t clear under either reading that there was a campaign finance violation. Moreover, it is clear that if properly structured (ie Trump himself made the payment) there is no criminal FECA violation (at worst there was a reporting obligation in 2017).

  4. Now we get to intent. Yes, you can generally infer from actions what intent was. For example, if Person A points a gun at B and pulls the trigger, it is reasonable to infer he intended to shoot B as that is a natural consequence of the action. This is different. There is a requirement as an element that the false records were intended to in this case to avoid FECA. This seemingly suggests there needs to be more than the normal case; it seems to require that Trump knew what he was doing was to break a law.

First, no info was offered that Trump was thinking of any law.

Second, even if you don’t think Trump needs to think he was breaking the law (which seems really hard here) it is not a reasonable inference from the action (ie filing the records a certain way) that there was an intention to violate FECA (especially since it is far from clear there was a violation). Even worse, it is really clear Trump could’ve easily structured the transaction to avoid any FECA issue. So we are supposed to believe that Trump knew what he was doing was a FECA obligation, and either had the choice to slightly restructure the transaction (without changing economics) or he decided to break FECA and falsify business records. Does the latter even sound reasonable? Reasonable enough to get past reasonable doubt? No way.

  1. It isn’t clear that unlawful means something that is illegal under laws other than the US. What if there was some action a campaign did wherein business records were falsified and it hid say a violation of Russian law. Would that be captured? What if it was Alaskan law?

  2. Finally the records were internal records. How would Trump think these records would ever be requested in relation to NY somehow regulating a federal election?

Fantasy football payments would seem to qualify. That is a business - someone makes money. Whoever won probably did not pay taxes so there is the coverup of another crime.

So yes I am a felon.

And for proportionality reasons my $500 fantasy football buy-in is equivalent to Trumps 750k to a hooker.

You did not mislabel your Venmos (as far as I know) with the intent of preventing the state of New York from executing its law

Assuming he's in New York, yes he did: he knew those transaction records could be subpoenaed for a variety of reasons, and mislabeled them anyways. This is clear intent to frustrate the state carrying out its laws.

This is nonsense -- you could argue that any mislabeled record was mislabeled with "intent to defraud the state". That's what makes this egregious: the crime Trump is charged with isn't a crime unless you investigate it as though it is a crime!

Yep. It renders intent meaningless which (1) is a no-no when construing statutes and (2) moreso in criminal context.

You can argue anything. Proving intent beyond a reasonable doubt is however a fairly high bar to clear.

Here there was literally zero evidence of intent offered. So clearly not a high bar to a heavily biased jury.

Not when the jury and judge are stacked against you!

The jury went through voir dire, and Trump's lawyers participated in that process. Potential jurors who would not be impartial were struck. This is standard practice.

What a bullshit argument. If you stack a jury group where it is 90-10 against the defendant couple with limited strikes and an adverse judge you won’t get a fair jury.

My question to you is do you think Trump would’ve been found guilty in WV with the same exact facts?

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Bryant and Milam didn't lynch Emmet Till, because a jury found them not guilty.

OJ Simpson didn't kill Nicole Brown, because a jury found him not guilty.

Come on, voir dire isn't some magical process that produces impartial jurors where none exist. Miscarriages of justice and wrongful convictions happen all the time, and falling back on "but the jury was impartial" is either extremely naive, or a refusal to come up with an actual opinion of your own.

I doubt that for one simple reason: I have been on multiple juries. I am not impartial. I was not stricken.

It's very easy. All you have to do is give the right answers.

Yeah it is quite the slippery slope. It is one of the problems when you criminalize pretty much everything.

From the jury instructions:

BUSINESS RECORD means any writing or article, including computer data or a computer program, kept or maintained by an enterprise for the purpose of evidencing or reflecting its condition or activity

Sheesh. Was that written by Kamala Harris? There is no way a jury of normal Americans could parse that word salad.

Let's be honest. The judge could have said anything. The jury heard this: "You think Donald Trump bad guy? Say yes if you think bad guy."

The jury isn't exactly normal. There's a banker, two attorneys, and a software engineer.

Low effort, condescending, and consensus-building. You have a bunch of bad posts recently. Improve your posting quality or you're going to get a timeout.

Will do. I am trying to improve the volume of posting here which means lowering my filter a bit. I'll tighten it.

I appreciate the mods for doing a mostly-thankless job.

As many people have noted, this jury was unusually highly educated, and included two lawyers. I reckon they could understand that sentence fine.

It's not word salad. I think it's quite clear. If you know what "writing" is, and you know what it means to "keep or maintain" something, and you know what a "condition or activity" is (perhaps the most vague part of the definition, but still, these are very common ordinary words and it's easy to furnish many examples of conditions and activities), then you understand the definition.

The definition as written may lead to counterintuitive results. For example, if I'm the CEO of a company and I write on a post-it note "we have a lot of money" and I store that in my desk drawer in my office, then that is a piece of writing, and it is kept by the enterprise (on our premises, with security measures to prevent unauthorized access), and it does reflect a condition or activity (the condition of having a lot of money), so it appears that according to this definition, the post-it note would count as a business record. But being counterintuitive is not the same thing as being unclear.

It's not clear because it doesn't clarify the important question, which is: what are the documents Trump is being charged with falsifying? Tax records? Internal memos? Paystubs? Drafts for a contract? Transcripts? Post-it notes?

According to your interpretation, the government could prosecute you for writing on a post-it note in your office, determining that this is a business document, and then alleging that you lied when you wrote it. That's not clear at all!

It's not clear because it doesn't clarify the important question, which is: what are the documents Trump is being charged with falsifying?

The definition of "business record" itself is just a definition of a term. It's not going to include any specifics about what business records a person did or did not create in a particular concrete case. Presumably, that information would have been discussed during the trial proper.

According to your interpretation, the government could prosecute you for writing on a post-it note in your office, determining that this is a business document, and then alleging that you lied when you wrote it. That's not clear at all!

"Unjust" and "counterintuitive" are not the same thing as "unclear".

I was purely addressing the assertion that the definition was "word salad", nothing more. I think that accusations of that sort are thrown around too liberally on TheMotte so I felt that it was important to address. Too often people default to calling something "bad writing" when actually they have a different (and more specific) complaint with it.

The motte seems to agree you can be convicted on any of those.

Perhaps, Trump is actually guilty. I am coming around to this. But in that case a lot of people are guilty.

I am glad I asked this question because I have been wondering for a while what is meant by a business record. And I feel like it’s a key point I haven’t seen people talking about.

No. You have some people coming in with some Nonsense. The key thing is they never proved intent (and the prosecution and judge for FECA wrong).

Pay attention that most of the r people saying he was guilty are the people who were very wrong on most legal issues (ie they lose at SCOTUS).

Intent is a solid reasoning for he’s not guilty. Always tough to prove intent. But by the letter of the law if you can prove intent I guess he’s guilty.

And if you accept Cohen’s uncorroborated testimony. It’s just a really bad verdict.

Literal answer to your question: Trump is accused of falsifying the checks he wrote to his lawyer when he wrote on the checks that they were for legal expenses. He is also accused of falsifying his accounting books for his business when he recorded that the checks paid to his lawyer were for legal expenses.

Edit: sorry, above I said "accused" but the more factual thing now would be to say "convicted." My mind's having a hard time downloading the latest update.

How is payment for signing an NDA not actually legal expenses?

When your political enemy does it.

That is in fact, how laws have to be written - very specifically. I don't doubt that if it wasn't, you'd complain it was too vague - everyday language often is!

I'm not sure the definition of Business Record is very specific or useful since it seems to qualify nearly any piece of data in any equipment or file held by the business.

Based on this definition even messages on Slack or Teams between employees joking about how their manager looks could be argued to qualify as a business record.

I don't think jokes about the managers appearance on Slack would be kept or maintained for the purpose of evidencing the company's condition or activity.

Having said that, yes, many legal definitions are intentionally very broad.

I’m not sure the definition of Business Record is very specific or useful since it seems to qualify nearly any piece of data in any equipment or file held by the business.

That was probably the intent - which in turn makes the definition very useful, to the relevant government authorities.

Yes, that's the idea every document someone working for a business creates is probably a business record.

We're on the Scott subreddit.

It's possible to be clear with plain language. Scott is.

Legalese (and its academic cousin) are more often than not just bad writing. They are optimized for sounding professional, not for clarity. Anyone who interacts with the tax code has experienced this. But this isn't surprising. By necessity, the law is written and executed by people who are simply not that intelligent.

And yet, instructions to an even less intelligent jury should be clear. These were not.

Not disagreeing, just curious. How would you have written that definition to make it easier to understand and also cover all the bases?

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