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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 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.

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

Aaaand now you're getting us into the land of 'void for vagueness'. Brad Smith says that the FEC believes that there is an objective test here. He believes he understands that objective test. But we know that the standard by which the law operates can't just be any of our personal beliefs about the few words we have in the statute (not even the jury's personal beliefs). If it were that, then there is no way for an individual to know ahead of time, objectively, whether the actions they were thinking about taking were in the illegal bucket or the not illegal bucket. This is classic void for vagueness territory.

The way these things are usually handled in the administrative state is something something agency rulemaking, something something Chevron maybe. Before you get into the morass of trying to prosecute people for a bunch of impossibly vague statutes, an agency, in this case, likely the FEC, should go through the rulemaking process to try to interpret the ambiguity in a clear way so that people can be suitably informed. There's notice and comment procedures and everything that you have to go through to get this, but if you did, then it would basically be "the FEC's personalinstitutional beliefsinterpretation" that would control. But we don't have that here. The best we have is a Democratic appointee to the FEC saying, "If the FEC had really gone through the process to make this abundantly clear, so that everyone knew that we were thinking that there was an objective test involved, then the result would be that this is not a crime." But we're stuck in a spot where the best that you can say against Trump is that they haven't gone through this process to put a full administrative interpretation out there. Not only is it classic void for vagueness in the absence of such an administrative interpretation, it heavily weighs against scienter, because Trump can't have intended to violate a standard that is only ex post knowable from your comments on an obscure website, the personal beliefs of a NY judge he's not met yet, or the personal beliefs of a jury which has not yet been convened.

The hilarious part about this is that we have to get through 90% of all these other examples of, "No, the wording in the statute doesn't actually mean what it appears to mean, because [reasons]," many of which are at least reasonably spelled out by clear FEC interpretation or Court precedent if you've read enough. But at the end of all that, when we get to the final stage, we still have a thing that likely doesn't mean what the words in the statute appear to mean at first glance, again, for [reasons]. This is the reason why many people don't view this as a simple case of, "Trump broke the law; he's not above the law; he should be prosecuted just like anyone else." It's why the entire concept of the case is so troubling, and it's frankly the reason why they pursued it the way they pursued it. If you just shove all the mess of the core, vitally-important questions into a tiny box that you try to mostly ignore and swear that it's totally a crime if you don't think about it too much, but trust us it's totally a crime, without actually having to prosecute and prove that crime in an appropriately competent court with domain expertise and appellate review for the trickier questions, it all appears sketchy as hell.

Like I said at the outset, when this eventually hits appellate review, either in a federal circuit court or just at SCOTUS directly from NY's highest court, I think it's highly likely that it ends up resolved in Trump's favor. I'd probably say more 80/20 than 50/50. It likely won't be until after the election, unfortunately, likely because there are too many folks in the process with the capability and desire to slow-play it. And that really is damaging to democracy.

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