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PaperclipPerfector  5mo ago (text post)   27978 thread views

Culture War Roundup for the week of May 27, 2024

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I view this lawfare as both morally wrong and deeply destabilizing.

Why is this lawfare? And why is it wrong? I can see both sides of the issue but want to make sure I'm not missing something.

Camp: this is terrible

This is a tragedy for justice. Trump did stuff that, sure it was technically illegal, but it took prosecutors like 5 years to charge him for this. The fact that it took so long is sus. The fact that it's during an election year is sus. Also, there are tons of people committing actual horrific felonies in NY that aren't being prosecuted. Additionally, it really seems like the prosecutor had to squint to find something to bust him with. This seems very politically motivated and like it sets a terrible precedent. It simply shows that you can prosecute any business leader for something if they infuriate the establishment enough. Additionally, you can't really read too much into this. He was charged and convicted in NY, a place that's full-on Trump Derangement Syndrome. He probably would've been sentenced to death for a parking ticket if the court allowed it. America is in danger.

for contrast

Camp: this is fine

This is a victory for justice. Even former Presidents are not above the law. He did a crime and he was convicted of it. He very much had a guilty mind, surrounding generally bad behavior, and did bad things while campaigning to be a leader of the country, one of the most important positions in the world. In the process of these morally bad acts he crossed a legal line and he's being called to account for it. Sure, it took a long time and sure it might have some twinge of political motivation to the timing, and this is a crime few people can really relate to, but you also want leaders held to a high standard and you also want them to be accountable. Juries may hate Trump but it's just implausible to expect even 12 New Yorkers to find him guilty of something just because they hate him. America has demonstrated its commitment to rule of law and we should celebrate.

Consider also in Camp: this is terrible:

Trump did not do anything that was technically illegal. There is nothing illegal about paying someone to sign an NDA. A former chairman of the FEC is on the record as saying this expenditure does not count as a campaign expenditure. Smith also commented:

Suppose Trump had used campaign funds to pay off these women. Does anyone much doubt that many of the same people now after Trump for using corporate funds, and not reporting them as campaign expenditures, would then be claiming that Trump had illegally diverted campaign funds to “personal use”? Or that federal prosecutors would not have sought a guilty plea from Cohen on that count?

There is, at the least, reasonable doubt that this action was illegal, and the standard for convicting someone of a felony is beyond a reasonable doubt.

But the FEC did find AMI paying McDougal (the other woman alleged to have an affair with Trump) off was a campaign finance violation. So i am not sure how much we should Smith's words count here. Note this was even with the FEC committee being split 50-50 Republican and Democrat.

"The FEC ruling states that the Enquirer's publisher, American Media Inc, "knowingly and wilfully" violated election laws by paying for the rights to Ms McDougal's story and never publishing it in a practice known as "catch and kill"."

So the FEC itself does seem to feel that paying off alleged affair partners does itself count as a campaign expenditure.

Had they paid for the story and then published it would it have been a contribution for Trump's opponent?

Do you think a presidential candidate could use campaign funds to do it? Again at best the law is murky which seriously calls into question that there was an intent to violate the law AND would call into question whether it was void for vagueness.

Same reply here: https://www.themotte.org/post/1019/culture-war-roundup-for-the-week/217701?context=8#context

He pleaded to it as part of a deal to avoid being prosecuted for other things. Read my link, it is directly related to that question.

Granting that this is what happened, it sounds a lot like a case of what people here like calling "leopards eating faces" when it happens to the other side. Republicans are the law-and-order party that spent decades architecting a legal system where prosecutors have free rein to use tactics like blackmailing (or, equivalently, bribing) people to incriminate their allies, so as to be able to secure convictions in cases like gangs where they feel they caught a bad guy but can't find a legally watertight way to prove his guilt directly; now that they found themselves at the business end of this machinery, they are crying foul.

If this was a Bush/Romney Republican, this wouldn't have happened. The Republicans haven't gone after Democrat politicians, so that is also something to consider. They also aren't the only ones part of designing it.

And of course under your scenario, the spirit of the law that isn't violated when persecuting gangs is violated when getting Trump over this.

Through loopholes you can create a dictatorship out of any democracy and can abuse any system. And so, when such loopholes are abused, you either blame those who abuse them and oppose it, or promote a theory of leopards eating face, if you support the process of abusing the law to get your opponents. Any justice system to work well, requires respecting the spirit of the law, because you can manage to get a lot of people with technicalities, and by abusing the system. No system is so designed as to be infallible to that. There is always something one can find as an excuse if they support a transformation of the system into that.

Ironically, in addition to tit for tat, ideally towards actual crimes done by dem politicians as a deescalating force, to the extend liberals have such attitudes, it is actually justifiable and not just going after ones opponent to consider if people with such ideology are going to abuse their position as judges, bureaucrats, etc, etc. And even people like journalists, academics, have their own enormous influence that is going to affect everything. For the right, protecting the integrity of the system, and not letting their political opponents dominate it and abuse it then become interchangeable. For liberals, the opposite claim is not actually justifiable. Precisely because the right not only haven't prosecuted liberals over BS, but also have failed to prosecute more clear misconduct. And it is precisely that appeasement and sense of no consequences that has encouraged the liberal side into escalating.

Did Republicans really create this legal system? It seems noteworthy to me that these systems operate most often the way you describe in areas dominated entirely by Democrats.

I would vastly prefer to be in Trump's shoes in New York than in Georgia. The bar for proving RICO is so low there and it comes with a 5 year minimum sentence.

That trial won’t occur. Fani is getting kicked off.

It won't occur before the election. Willis may indeed be kicked off the case (and IMO she should be). But it's still an extremely serious case, and it doesn't automatically go away after the election happens.

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Steelmanning: the FBI prosecutor made up a crime, an SDNY prosecutor carried water for this made up crime and charged Cohen with it, and Cohen plea bargained it and a judge validated the plea bargain and thusly this made up crime is now a real crime in this court and they charge Trump with it in the future, too.

Skeptically: I understand you give up your right to defend yourself when you plea bargain but does this mean a judge will let you confess to things that aren't crimes? Are you completely surrendering to the prosecutor's legal determination?

He confessed to a crime in the sense that there is a law on the books that he confessed to break. That doesn't mean that he actually violated that crime. For example, let's say I wanted to murder a bank teller because of a personal beef. After my crime, I plead to attempted bank robbery and un-premeditated murder so that I can avoid being tried for pre-meditated murder. Bank robbery is a crime, but I never actually tried to commit it. I just plead to it because it keeps me from the electric chair.

Michael Cohen confessed to a crime he didn't commit given the facts at hand. People do this to avoid long sentences for possibly other crimes they committed. Michael Cohen is a convicted perjurer and was trying to avoid going to trial for tax fraud:

Cohen was facing multiple tax and fraud charges that could have landed him in jail for the rest of his life, even if he beat the campaign finance allegations. By pleading guilty, he limits his jail time to just a few years.

Michael Cohen confessed to a crime he didn't commit given the facts at hand. People do this to avoid long sentences for possibly other crimes they committed. Michael Cohen is a convicted perjurer and was trying to avoid going to trial for tax fraud:

What I'm saying is there wasn't a factual dispute re: the campaign finance violations. Those acts were either a crime or they were not. I'm surprised people are complaining that wasn't something he could have been charged with but the judge signed off on it anyway. The more intangible things like mens rea doesn't really enter into it, IMO.

I'm surprised at your surprise. That's just what a plea deal is. "I will plea to this lesser charge that does not accurately depict reality so that I don't risk jail for a greater charge and you don't have to go through the trouble of a jury trial."

Question:

In the 9th episode of series 15 of "Law and Order: SVU", a serial rapist offers to plead guilty to a rape which he did not commit, while refusing to plead guilty to a series of rapes which he actually did commit (the reasons for this are complex and irrelevant to the question). The prosecutor and police seriously consider accepting his offer, even though they know he didn't commit the crime he wants to confess to, because they don't think they can prove the crimes he actually did commit. This doesn't sound to me like something which would be legal. Could a prosecutor really agree to a plea bargain deal which would involve the defendant confessing to something which the prosecutor knows they didn't do?

Answer:

Such things are in fact legal in some US jurisdictions, as part of plea bargains. In fact such pleas are not uncommon. More usual is the case where a person pleads guilty to a lesser crime, so as to qualify for a lower sentence, when all involved know that the lesser crime was not committed by anyone. It is simply a device to get a compromise sentence and avoid a trial.

In some jurisdictions the Judge, in the course of accepting a guilty plea, requires that the accused admit specific facts that form a minimal legal basis for conviction of the crime pled to. In others no such admission is made. But even where such an admission is made, the truth of such an admission is not usually checked. The Judge will generally make sure that the accused understands the effect of a guilty plea, the rights given up by such a plea, and the possible range of sentences that will result. If the Judge believes that the plea constitutes a miscarriage of justice, for example that a totally innocent person is yielding to improper pressure from the prosecutor, the Judge can refuse the plea, but this is very rare in practice.

There aren't limits to plea bargaining than what each side accepts based on their risk tolerance.

Cohen plead guilty to a campaign finance violation. A campaign finance violation is indeed a crime it is possible to commit. No one in the process, however, had to double check that what Cohen did actually counted as a campaign finance violation.

In your SVU example you're talking about the prosecutor presenting a different set of facts to the judge that have little to do with what happened in reality.

But in this Trump case, however, the claim is that the facts in the plea bargain itself should exonerate him by a simple reading of the law and realizing that a hush money payment to a mistress is not a campaign finance law violation.

This did not, however, happen. The judge accepted it. If charging him with an FEC violation was so inappropriate surely the judge would jump in and say "that's cute guys, but failing to classify hush money payments to a mistress doesn't violate the Federal Election Campaign Act". The judge can't even be trusted to read the entire document and while only considering that document say if it does or does not compute?

Campaign Finance Violations

The Federal Election Campaign Act of 1971, as amended, Title 52, United States Code, Section 30101, et seq., (the “Election Act”), regulates the influence of money on politics. At all relevant times, the Election Act set certain limitations and prohibitions, among them: (a) individual contributions to any presidential candidate, including expenditures coordinated with a candidate or his political committee, were limited to $2,700 per election, and presidential candidates and their committees were prohibited from accepting contributions from individuals in excess of this limit; and (b) Corporations were prohibited from making contributions directly to presidential candidates, including expenditures coordinated with candidates or their committees, and candidates were prohibited from accepting corporate contributions.

On June 16, 2015, Individual-1 began his presidential campaign. While COHEN continued to work at the Company and did not have a formal title with the campaign, he had a campaign email address and, at various times, advised the campaign, including on matters of interest to the press, and made televised and media appearances on behalf of the campaign.

In August 2015, the Chairman and Chief Executive of Corporation-1, a media company that owns, among other things, a popular tabloid magazine (“Chairman-1” and “Magazine-1,” respectively”), in coordination with COHEN and one or more members of the campaign, offered to help deal with negative stories about Individual-1’s relationships with women by, among other things, assisting the campaign in identifying such stories so they could be purchased and their publication avoided. Chairman-1 agreed to keep COHEN apprised of any such negative stories.

Consistent with the agreement described above, Corporation-1 advised COHEN of negative stories during the course of the campaign, and COHEN, with the assistance of Corporation-1, was able to arrange for the purchase of two stories so as to suppress them and prevent them from influencing the election.

First, in June 2016, a model and actress (“Woman-1”) began attempting to sell her story of her alleged extramarital affair with Individual-1 that had taken place in 2006 and 2007, knowing the story would be of considerable value because of the election. Woman-1 retained an attorney (“Attorney-1”), who in turn contacted the editor-in-chief of Magazine-1 (“Editor-1”), and offered to sell Woman-1’s story to Magazine-1. Chairman-1 and Editor-1 informed COHEN of the story. At COHEN’s urging and subject to COHEN’s promise that Corporation-1 would be reimbursed, Editor-1 ultimately began negotiating for the purchase of the story.

On August 5, 2016, Corporation-1 entered into an agreement with Woman-1 to acquire her “limited life rights” to the story of her relationship with “any then-married man,” in exchange for $150,000 and a commitment to feature her on two magazine covers and publish more than 100 magazine articles authored by her. Despite the cover and article features to the agreement, its principal purpose, as understood by those involved, including COHEN, was to suppress Woman-1’s story so as to prevent it from influencing the election.

Between late August 2016 and September 2016, COHEN agreed with Chairman-1 to assign the rights to the non-disclosure portion of Corporation-1’s agreement with Woman-1 to COHEN for $125,000. COHEN incorporated a shell entity called “Resolution Consultants LLC” for use in the transaction. Both Chairman-1 and COHEN ultimately signed the agreement, and a consultant for Corporation-1, using his own shell entity, provided COHEN with an invoice for the payment of $125,000. However, in early October 2016, after the assignment agreement was signed but before COHEN had paid the $125,000, Chairman-1 contacted COHEN and told him, in substance, that the deal was off and that COHEN should tear up the assignment agreement.

Second, on October 8, 2016, an agent for an adult film actress (“Woman-2”) informed Editor-1 that Woman-2 was willing to make public statements and confirm on the record her alleged past affair with Individual-1. Chairman-1 and Editor-1 then contacted COHEN and put him in touch with Attorney-1, who was also representing Woman-2. Over the course of the next few days, COHEN negotiated a $130,000 agreement with Attorney-1 to himself purchase Woman-2’s silence, and received a signed confidential settlement agreement and a separate side letter agreement from Attorney-1.

COHEN did not immediately execute the agreement, nor did he pay Woman-2. On the evening of October 25, 2016, with no deal with Woman-2 finalized, Attorney-1 told Editor-1 that Woman-2 was close to completing a deal with another outlet to make her story public. Editor-1, in turn, texted COHEN that “[w]e have to coordinate something on the matter [Attorney-1 is] calling you about or it could look awfully bad for everyone.” Chairman-1 and Editor-1 then called COHEN through an encrypted telephone application. COHEN agreed to make the payment, and then called Attorney-1 to finalize the deal.

The next day, on October 26, 2016, COHEN emailed an incorporating service to obtain the corporate formation documents for another shell corporation, Essential Consultants LLC, which COHEN had incorporated a few days prior. Later that afternoon, COHEN drew down $131,000 from the fraudulently obtained HELOC and requested that it be deposited into a bank account COHEN had just opened in the name of Essential Consultants. The next morning, on October 27, 2016, COHEN went to Bank-3 and wired approximately $130,000 from Essential Consultants to Attorney-1. On the bank form to complete the wire, COHEN falsely indicated that the “purpose of wire being sent” was “retainer.” On November 1, 2016, COHEN received from Attorney-1 copies of the final, signed confidential settlement agreement and side letter agreement.

COHEN caused and made the payments described herein in order to influence the 2016 presidential election. In so doing, he coordinated with one or more members of the campaign, including through meetings and phone calls, about the fact, nature, and timing of the payments. As a result of the payments solicited and made by COHEN, neither Woman-1 nor Woman-2 spoke to the press prior to the election.

In January 2017, COHEN in seeking reimbursement for election-related expenses, presented executives of the Company with a copy of a bank statement from the Essential Consultants bank account, which reflected the $130,000 payment COHEN had made to the bank account of Attorney-1 in order to keep Woman-2 silent in advance of the election, plus a $35 wire fee, adding, in handwriting, an additional “$50,000.” The $50,000 represented a claimed payment for “tech services,” which in fact related to work COHEN had solicited from a technology company during and in connection with the campaign. COHEN added these amounts to a sum of $180,035. After receiving this document, executives of the Company “grossed up” for tax purposes COHEN’s requested reimbursement of $180,000 to $360,000, and then added a bonus of $60,000 so that COHEN would be paid $420,000 in total. Executives of the Company also determined that the $420,000 would be paid to COHEN in monthly amounts of $35,000 over the course of 12 months, and that COHEN should send invoices for these payments.

On February 14, 2017, COHEN sent an executive of the Company (“Executive-1”) the first of his monthly invoices, requesting “[p]ursuant to [a] retainer agreement, . . . payment for services rendered for the months of January and February, 2017.” The invoice listed $35,000 for each of those two months. Executive-1 forwarded the invoice to another executive of the Company (“Executive-2”) the same day by email, and it was approved. Executive-1 forwarded that email to another employee at the Company, stating: “Please pay from the Trust. Post to legal expenses. Put ‘retainer for the months of January and February 2017’ in the description.”

Throughout 2017, COHEN sent to one or more representatives of the Company monthly invoices, which stated, “Pursuant to the retainer agreement, kindly remit payment for services rendered for” the relevant month in 2017, and sought $35,000 per month. The Company accounted for these payments as legal expenses. In truth and in fact, there was no such retainer agreement, and the monthly invoices COHEN submitted were not in connection with any legal services he had provided in 2017.

During 2017, pursuant to the invoices described above, COHEN received monthly $35,000 reimbursement checks, totaling $420,000.

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Actually the Trump camp is he didn’t do anything illegal but due to venue shopping and a corrupt judge they were able to get a conviction on what is a minor crime.

Scroll further down to see explanations on why he didn’t break the law

Wasn't Michael Cohen charged and convicted for his part in this almost immediately, though? In 2018? The charge was referred by the special prosecutor's office, to a different NY DA, with the case allowed by a different judge?

Also, was it venue shopping? Wasn't Trump a resident of NY at the time, and didn't the crime happen in NY?

To steelman: actually, Trump didn't do anything illegal but due to multiple corrupt judges and multiple corrupt prosecutors they convicted Trump's attorney and Trump himself on what is a minor crime. All of this happening within one corrupt court, the SD of NY.

Cohen was in trouble for tax charges and taxi medallion scams. They were discussing plea deal and threw in FECA allowing him to plead to something “less bad” with an intent of getting Trump.

More particularly, the biggest lawfare aspect is the grasping to conjure a federal crime at the root of Trump's recordkeeping activities -- if NY had chosen to prosecute Trump for misdemeanor records fuckery it would have been still pretty clearly politically motivated, but probably not had much impact on the election.

The way they went about it seems pretty clearly designed to impede Trump's current national campaign, which is very bad -- maybe some Red State prosecutor can come at the NY DA for 'unauthorized campaign contributions' to the DNC or something?

Sorry, why wouldn't it be a federal crime if it is considered violating federal election law for his campaign for a federal elected office?

The federal authority in charge of prosecuting this kind of crime did not think it was a crime.

Could they have? According to LawyerGPT

Lack of Criminal Authority: The FEC does not have the authority to prosecute criminal violations. When potential criminal conduct is identified, the FEC refers such cases to the Department of Justice (DOJ) or relevant U.S. Attorney's Offices for criminal investigation and prosecution.

The DOJ also was referred this conduct and did not charge it. Saying this was an election law violation requires a tortured interpretation of the statute, and arguably would have put Trump in a catch-22 situation where classifying the expense as a campaign expense would be illegal, but also not classifying it as a campaign expense was illegal.

Ok? They didn't refer Trump's conduct to anyone either -- probably because they didn't think it was clear that paying Daniels was a campaign expense. Or maybe because paying her through an intermediary doesn't make it a donation by that person.

Ok? They didn't refer Trump's conduct to anyone either -- probably because they didn't think it was clear that paying Daniels was a campaign expense.

They did think paying McDougal off was a campaign expense though. Remember the FEC committee is equally split between Republicans and Democrats so what the FEC thinks is basically what a 6 person panel equally split between two opposing sides can hammer out as a compromise. They fined AMI for paying McDougal off on behalf of Trump.

Did Trump pay them back?

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See comment above. Important to note that Brad Smith was appointed by a dem so his opinion adds some weight.

The FEC looked at this very case and decided not to bring any action. The Judge in this trial prevented Trump from providing this fact to the jury.

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