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PaperclipPerfector  3mo ago (text post)   27864 thread views

Culture War Roundup for the week of May 27, 2024

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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.

I don't think that's normally how American law is applied, but admittedly I don't know much about it.

I'm open to being corrected, but as far as I can tell, it is. It's the standard that's laid out in the legislation, and as far as I know there's no case law on the books saying that those particular words don't mean what they appear to mean. The legal podcasts I listen to (Prosecuting Donald Trump, Serious Trouble) have asserted that's the standard that applies (and sure, I'm willing to buy that e.g. Andrew Weissman is biased against Trump, but I don't buy that he's intentionally misrepresenting what the law is). None of the lawyers I've seen arguing against the verdict have raised the definition of "campaign expenditure" as incorrectly applied (e.g. Steve Calabresi argues that campaign finance limits on hush money payments are unconstitutional, but he doesn't dispute that the statute purports to limit them).

None of the lawyers I've seen arguing against the verdict have raised the definition of "campaign expenditure" as incorrectly applied

I think you've persisted in not addressing what Brad Smith has said, which is exactly that the definition of "campaign expenditure" was incorrectly applied.

At the time I wrote my post, I hadn't seen anything Mr Smith had written.

I've since googled and read this article, though if there's a better piece by him that I should read for a more full explanation of his perspective, please point me to it. And I have to say, I'm very confused by Mr Smith's argument. Not because I think he's wrong. But because he seems to think he's disagreeing with Judge Merchan, while it seems to me like he's arguing for the exact same standard.

Merchan's jury instructions say:

Under federal law, a third party’s payment of a candidate’s expenses is deemed to be a contribution to the candidate unless the payment would have been made irrespective of the candidacy. If the payment would have been made even in the absence of the candidacy, the payment should not be treated as a contribution.

Brad Smith says:

FECA specifically prohibits the conversion of campaign funds to personal use, defined as any expenditure “used to fulfill any commitment, obligation, or expense that would exist irrespective of the candidate’s election campaign.”

They seem to be saying the exact same thing. Cohen's payment to Stormy Daniels is a campaign expenditure if and only if Cohen would not have made that payment in a counterfactual world where Trump was not a candidate.

So I reiterate my statement. Every lawyer discussing this case appears to agree on what the legal standard is, including Mr Smith.

Here is another good one, where he says the kind of thing I've been saying about campaign finance law:

The problem, of course, is that campaign finance law is extremely complex and just reading the statute to people isn’t really going to help them very much.

Just saying that there's this irrespective test basically doesn't help unless you're steeped in this world. He gives some examples:

Go back to 1999. Hillary Clinton buys a house in New York. She bought it clearly to influence the election — I mean absolutely, right? — because she had to have a residence in New York. It is totally indisputable — that is a reason why she bought it. But it’s not a campaign expenditure. It doesn’t matter.

and

“I can tell you my personal belief is that clearly paying hush money, or paying for a nondisclosure agreement, does not constitute a campaign expense,” Smith said. “To use an example I’ve often used, it’s not a campaign expense if a businessperson is running for office and his businesses are getting sued, and if he goes to his company lawyers and says, ‘I want to settle these lawsuits against us. We’ve got some wage employment lawsuits and a woman is alleging sexual harassment. We’ve got 36,000 employees, but we’ve got these three complaints and the press will make a big deal about them. So I want you to settle these.’ And the company lawyers say, ‘No, these are great cases we should win. We shouldn’t settle them.’ He says, ‘I don’t care. I’m running for office. I don’t want press stories on it. I want you to settle them quietly.’ Well, he cannot use campaign funds to pay that settlement, even though he is clearly doing it for the purpose of influencing his campaign."

He's saying that, sure, the judge can mouth the words of the statute, but is that actually going to communicate what "the law" is? He doesn't think so, because you need some steeping. With that steeping, he thinks, the FEC would absolutely have considered it not a campaign expense and illegal for him to pay with campaign funds. Note that this is a somewhat different concern than in our other conversation, where we were talking about expenditures in terms of things that can be converted into contributions. There are still significant questions about whether it's a thing that could be captured as an expenditure, separately, and then whether constraints exist on Trump's ability to have expenditures and such in a way that can be sustained under the Constitution.

I continue to find Smith very puzzling. He outlines what the rules are:

“You read the law and it says that anything intended for the purpose of influencing an election is a contribution or an expenditure,” Smith explained. “But that’s not in fact the entirety of the law. There is the obscure, and separate from the definitional part, idea of personal use, which is a separate part of the law that says you can’t divert campaign funds to personal use. That has a number of specific prohibitions, like you can’t buy a country club membership, you can’t normally pay yourself a salary or living expenses, you can’t go on vacation — all these kinds of things. And then it includes a broader, general prohibition that says you can’t divert [campaign funds] to any obligation that would exist even if you were not running for office.”

Ok, so there's some specific things that can't be campaign expenditures. Presumably there's no specific exclusion for NDA payments, so we ignore those. And then there's a general rule to catch any other weird things that don't fall into the specific personal use buckets, and that's the "irrespective" test. Ok cool. So that's the rule?

Well no, because he then goes and highlights a couple of situations which clearly fall within the definition that he's provided but then he says nope, these don't count. Ok, why not? No explanation. Just "my personal belief".

I don't know what I'm supposed to do with that. Brad Smith's personal belief can't be the standard by which the law operates. There has to be some sort of actual standard, and the only articulated standard I've seen proposed says Trump is guilty.

More comments

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?

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