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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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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.

In theory, it's a serious case, but if Willis gets booted, much of her office will be booted too, and almost none of the alternates have anywhere near the interest in trying the case.

((Also, the Georgia RICO statute dates back to at least the 1980s, and despite the popular history version, 1980 Georgia was not a deep red state.))

It isn’t a serious case. It is absurd and my guess is once Willis is kicked off no other prosecutor is going to take it.

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.

I think you're arguing that it violates Corpus delicti?

Corpus delicti (Latin for "body of the crime"; plural: corpora delicti), in Western law, is the principle that a crime must be proved to have occurred before a person can be convicted of committing that crime

I'm looking and I can't find anything that demonstrates the federal criminal practice requires corpus delicti for a plea bargain.

If the Judge, the attorney, and Cohen all liked the deal, who would appeal that the facts presented didn't align with a crime?

I am arguing that the judge is a layer of the due process system and that the plea bargain has to at least make sense to them.

If you submit a plea bargain that says I confess to the crime of wearing a red shirt in public, under a DMV statute 23.1, and the punishment for this is death, a justice of the Southern District Court of New York isn't to just go "hurr durr looks good to me".

I am asking to what degree do you think a judge would scrutinize Cohen's plea bargain? I could imagine the judge reading "he's pleading guilty to making a hush money payment to a mistress, as an undisclosed campaign finance violation. does that make sense? well, his client was running for office and she was threatening to go public with their affair. seems like it passes the smell test, campaign finance violation? sure why not"

I could also imagine a judge saying "wtf this would make any action taken by someone spending to improve their public perception a campaign finance violation. sounds nuts. what a bad precedent to set. I'm throwing this part of the plea agreement out. or at least asking the prosecutor to explain their thinking on this"

I fully believe as a member of the justice system, the judge could do the second and from time to time they do. I'm asking you to explain why you think the second thing didn't happen. Because the judge hated Trump? Because he just uncritically accepted it? What?

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