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Culture War Roundup for the week of June 17, 2024

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Where are the republicans inventing new legal theories to prosecute their political opponents?

I don't think this is an accurate description of any of the Trump prosecutions. It mainly gets levelled at the falsification of business records case, on the theory that Bragg used a federal crime as the enhancer to kick it up to a first degree charge. But this isn't accurate. He used a state crime - New York Election Law Section 17-152. That charge itself refers to influencing an election by "unlawful means", and the unlawful means referred to in this context are violations of Federal election finance law, but my understanding is that it's well established by precedent that you can use federal crimes in relation to this statute. As always IANAL and I might be wrong. But as far as I can tell, although it's a bit of a convoluted approach to take, it's also one that specifically avoids using laws in unprecedented ways.

Republicans however certainly have invented new legal theories. They invented a new legal theory to overturn the 2020 election using competing slates of electors and having Pence refuse to certify disputed results. They invented a new theory to defend Trump by claiming Presidents have absolute immunity to criminal prosecution.

And, look, there's nothing wrong with inventing a new legal theory. You try it out, you test it in court, you see if it flies. And I think it's kind of natural for it to be the Republicans who are testing new ground here - the courts have become increasingly right wing (especially SCOTUS), and those new court majorities have different ideas about how laws should be interpreted. But if you're going to take the position that advocating novel legal theories for political purposes is some kind of no-no, then you really ought to be pointing the finger in the other direction.

  • -17

He used a state crime - New York Election Law Section 17-152. That charge itself refers to influencing an election by "unlawful means", and the unlawful means referred to in this context are violations of Federal election finance law,

You are incorrect. Bragg did not actually specify in the filing which charges he was using to upgrade from misdemeanor to felony. That's what was novel!

They invented a new legal theory to overturn the 2020 election using competing slates of electors

I will repeat myself a million times if I have to that "overturn the 2020 election" presupposes your side of the argument as the only legitimate one.

Besides, the competing slate of elector scheme is not nes or novel: it was used in 1876, and JFK submitted alternate electors in his dispute over Hawaii.

The idea that trump reimbursing his lawyer for paying stormy Daniels to sign an NDA constitutes a misreported campaign expense is, however, totally a novel legal theory.

They invented a new legal theory to overturn the 2020 election using competing slates of electors and having Pence refuse to certify disputed results.

Notably, the Republican Party decided not to do this. Like, there weren’t competing slates of electors. Mike Pence had openly said he wouldn’t go along with that plan. The most partisan red state where Trump disputed the results had a state government- made up of all republicans- who told him to eff off. In fact, republican elected officials who could have turned it into a matter for the courts chose to admit trump lost. Not as a general rule, as a universal one.

I’ve yet to see even the smallest of small democrats opposing the lawfare, targeting of conservative groups, criminal cases invented out of whole cloth, attempts at censorship, etc.

And I think it's kind of natural for it to be the Republicans who are testing new ground here - the courts have become increasingly right wing (especially SCOTUS), and those new court majorities have different ideas about how laws should be interpreted. But if you're going to take the position that advocating novel legal theories for political purposes is some kind of no-no, then you really ought to be pointing the finger in the other direction.

What are the new legal theories embraced by the 6-3 majority on scotus? Name them. Their most controversial, and predictable, decision was dobbs, which even liberals mostly admitted would be legally correct. Pretty much all the precedent overturned by the changing balance of the court has been in the form of things like changing the constitutional test applied in x specific situation- hardly novel legal theories.

The closest thing to a novel legal theory pushed out of conservative courts would be kaczmyrak’s decision on mifepristone, which got stayed immediately and slapped down by scotus.

The idea that trump reimbursing his lawyer for paying stormy Daniels to sign an NDA constitutes a misreported campaign expense is, however, totally a novel legal theory.

No it's not. The John Edwards case ran on the exact same theory.

Notably, the Republican Party decided not to do this. Like, there weren’t competing slates of electors. Mike Pence had openly said he wouldn’t go along with that plan.

Parts of the party refused to go along with that plan, sure. And they mostly got purged for disloyalty to the guy who spearheaded it.

What are the new legal theories embraced by the 6-3 majority on scotus? Name them.

Off the top of my head, the Major Questions Doctrine is one obvious example of a new legal theory adopted by SCOTUS. It's also highly likely they will be soon adopting a new legal theory in the area of administrative law, abandoning the current Chevron Deference legal theory. Again, I have 0 problem with them doing that, sometimes existing precedent is plain wrong and generally speaking I think the current court has made pretty good rulings.

ABC:

Federal prosecutors accused Edwards of soliciting nearly $1 million from wealthy donors to hide his affair with videographer Rielle Hunter -- and that he was the father of their baby -- to prevent damage to his reputation as a family man during the campaign.

Edwards' defense team argued the donations were personal gifts from friends, not campaign contributions, and were intended only to hide the affair from his cancer-stricken wife, not voters.

A North Carolina jury found Edwards not guilty of one count of receiving illegal campaign donations but deadlocked on five other charges, leading to a mistrial. The Justice Department ultimately dropped the charges.

Hm, but it didnt work to find Edward guilty.

Correct, the prosecution was unsuccessful. Edwards argued that the payoff was made to hide his affair from his wife and not to influence the election, and presumably at least some of the jury thought that was plausible.

But recognise that this is a case of Edwards successfully convincing (some members of) the jury that the legal theory did not apply to him. it's still a case where the same legal theory was prosecuted in the past.

Not only didn’t it work but the DOJ and FEC saw it as a resounding defeat. They viewed the matter as settled.

The idea that trump reimbursing his lawyer for paying stormy Daniels to sign an NDA constitutes a misreported campaign expense is, however, totally a novel legal theory.

No it's not. The John Edwards case ran on the exact same theory.

I bolded the operative part that is completely different. Edwards did not pay for the expense out of his own pocket. Which is why when you later say:

Edwards' mistress was paid off in the same way that Daniels was paid off - Edwards got someone else to give her money.

...you're completely, 180 degrees, backwards. Edwards used somebody else's money. Trump used Trump's money, via an intermediary.

That's a factual difference, but it doesn't change the legal theory. Both cases hung on the idea that paying off the woman you cheated with is a campaign expenditure. If you concede that point, then the question of whether you get someone else to do it and then pay them back, or get someone else to give you money to do it, or get someone else to do it while the money never passes through your hands at all, is all pretty immaterial. All of those actions violate campaign finance law in some way, if and only if the payoff counts as a campaign expenditure.

This is just so wrong.

  1. You are using as precedent a case that is seen as a disaster for the government as precedent. It is precedent; just not the way you think it is (ie it turned the FEC and DOJ off of the theory you espouse).

  2. There is a big fucking difference between a presidential candidate funding his own campaign and a third party. The former has zero limits; the latter does. The latter could be criminal if it goes past the limit.

  3. If it were a campaign contribution, then the only thing Trump would’ve needed to do is report something in 2017. The prosecution’s theory is somehow the 2017 reporting stole the 2016 election. Time travel folks!

To point 2, that is correct. However, Trump did not pay off Daniels himself. Cohen did. The fact that he later reimbursed Cohen does not change the fact that Cohen made the payment on behalf of Trump, and that making a payment on behalf of a candidate is counted as a contribution to the candidate. There's no time travel involved, Cohen committed the initial crime during the election campaign. Trump later committed further crimes trying to hide the fact that he was paying back Cohen for committing that crime.

It's true that if Trump paid Daniels himself with no intermediary and reported the payoff as a campaign expense, there would have been no violation of campaign finance law.

if Trump paid Daniels himself with no intermediary

Could he have used a credit card?

Even if he were to write a cheque I suppose his bank is technically the one disbursing the funds -- so the only way to legally do it would be Trump hand-delivering a briefcase full of cash himself. Interesting theory!

Let me actually respond in a second post. For there to be a FECA criminal violation there has to be a willful violation.

So your theory of the case is that Trump knew he could do it entirely legally by paying Daniel’s directly, but by using an agent he would violate the law. He then enacted this crazy scheme in order to violate the law. Does that make any sense whatsoever?

Yep. He enacted the crazy scheme with the intention to conceal the fact that he had paid her off.

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Yes but then you simply get back to “the report would have to be made in 2017l so still have time travel.

pretty immaterial

Negative. Your confusion comes from your explicit refusal to engage with the history of campaign finance laws, and the court cases that shape it. Most obvious in this setting is Citizens United, which narrowed the scope of the reasons which can ground regulation of these types of expenditures, to the extent that they can be considered expenditures (leaving aside this question for the moment and whether the FEC's current interpretation of the statute was actually informed by the failure to secure a conviction of Edwards), to only quid pro quo situations. Given this precedent, it is absolutely material whether there is a quid pro quo situation, and thus, a huge material difference between a candidate using his own money versus a candidate using someone else's money. It does not make sense to say that Donald Trump was entering in a quid pro quo relationship with Donald Trump by using his own money, whereas it is entirely plausible that the Edwards situation could be argued to constitute a quid pro quo.

We can reserve the question of whether it could count as a campaign expenditure in various hypos, as we discussed elsewhere. Suffice to say, the FEC of today disagrees with you, perhaps as I mentioned, in response to the Edwards debacle. The FEC might have agreed with you in the past, back then, but lots of developments have happened in the law since then, and at this point, they disagree with you.

Regardless of whether the legal theory is correct, the fact that it has previously been prosecuted demonstrates that it is not novel.

trump reimbursing his lawyer

I bolded it and everything. That part is absolutely novel. Prosecution for using your own money to pay for this sort of thing is absolutely novel. In fact, can you find an example of criminal culpability for any politician using his own money to pay for any sort of thing (not restricted to the case of hush money) that is in the broad class of "very questionable concerning whether it could be considered a campaign expense"?

As it so happens, such a case exists! Lisa Wilson-Foley hired John Rowland as a campaign advisor in her congressional race, but because she wanted to hide the fact she had done so (due to Rowland's own scandals) she disguised it by having him be employed by her husband's business. So the couple paid him with their own money, but because they tried to disguise it as not being a campaign expenditure, they broke the law.

Now, I grant that hiring a political advisor is a much more central example of a campaign expense than paying for a NDA. But the Lisa-Foley case demonstrates that it is not unprecedented to charge a politician for spending their own money on their own election, and the Edwards case demonstrates that it is not unprecedented to prosecute a NDA payment as a campaign expense. So neither aspect constitutes a novel legal theory.

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The John Edwards case ran on the exact same theory.

Edwards was prosecuted for using campaign funds. Trump was prosecuted for not using campaign funds, on the theory that paying Stormy Daniels was really a campaign contribution!

I don't believe this is correct. The donors supplying the hush money in the Edwards case gave the money for the specific purpose of paying off his mistress. The money only counts as campaign funds if you embrace the legal theory used in the Trump case - that paying for an NDA to shut up the woman you cheated on your wife with is an election expense.

Edwards literally solicited donors to help pay his expenses. That's at least a theory of using campaign monies (monies he campaigned to get) for private ends. Trump used his own money!

I take it you've never been to law school before, but it goes something like this: You read cases as your class assignments and the professor asks questions about them. Most of the questions are hypotheticals that change the facts slightly to see if you can apply the principles of the ruling to different situations. Then the professor poses a hypothetical that's nothing like the original fact pattern and asks what the result will be. Then when finals come you get more questions like that where nothing is exactly on point and you have to argue based on broad principles alone. Then you get to do the same thing in the bar exam, especially the multistate, where they might give you a fact pattern where you read it and you think "okay, the guy is clearly liable" and the final question asks "If the court finds that the defendant isn't liable, what is the probable reason?" and gives you four crappy answers from which you have to choose the most plausible.

As a practicing attorney, yes, most cases are boring and straightforward, and don't require too much creativity. But this isn't always the case. New situations require new legal theories. Look at autonomous vehicles; there's a whole universe of potential problems that could arise there that the law is seemingly unequipped to deal with, except through general principles. "No one has been convicted based on this specific fact pattern before" isn't a defense. This is especially true in the world of white collar crime, where the argument isn't so much that the defendant didn't do what the prosecution said he did but that what the defendant did wasn't a crime at all. Not everything is going to slot into convenient and obvious categories, and unless there's a viable legal argument for why a particular course of action shouldn't be a crime, a jury is going to get to decide.

  • -11

I think what’s missing here is the background. The background is that a DA is supposed to prosecute crimes not persons. Bragg ran on prosecuting Trump (ie the person).

And then to get Trump, Bragg used a NY state law that hasn’t been used in god knows how long coupled with a very dubious theory of a questionable FECA violation as a predicate of the rarely used NYS law. Keep in mind the people with authority to prosecute FECA violations passed on this (both criminally and civilly). The prior DA passed. That should tell us something! It tells us about selective prosecution and show me the man and I’ll show you the crime.

And then to get Trump, Bragg used a NY state law that hasn’t been used in god knows how long coupled with a very dubious theory of a questionable FECA violation as a predicate of the rarely used NYS law. Keep in mind the people with authority to prosecute FECA violations passed on this (both criminally and civilly). The prior DA passed. That should tell us something! It tells us about selective prosecution and show me the man and I’ll show you the crime.

AND, they had to first corner Cohen on other charges into accepting a plea deal in order to "establish" that a (uncharged, untried, undefended) crime had taken place which could then be used as the basis for charging Trump in such a convoluted manner.

He didn't run on prosecuting Trump in the sense (as I have seen implied in some conservative outlets) that he made it a campaign promise. He ran on prosecuting Trump in the sense that he cited his participation in the AG investigation. In other words, he ran on his record, which is something every AG candidate does, especially when they were involved in a high profile case.

Here is one example

“Let’s talk about what’s waiting for the new DA. The docket. We know there’s a Trump investigation. I have investigated Trump and his children and held them accountable for their misconduct with the Trump Foundation. I also sued the Trump administration more than 100 times for (Deferred Action for Childhood Arrivals), the travel ban, separation of children from their families at the border. So I know that work. I know how to follow the facts and hold people in power accountable."

Sure he talked about what he did but the clear implication that he would follow through on prosecuting Trump.

Bragg: "I’m the candidate in the race who has the experience with Donald Trump. I was the chief deputy in the attorney general’s office. We sued the Trump administration over 100 times, for the Muslim travel ban, for family separation at the border, for shenanigans with the census. So, I know how to litigate with him. I also led the team that did the Trump Foundation case. So, I’m ready to go wherever the facts take me, and to inherit that case. And I think it’d be hard to argue with the fact that that’d be the most important, most high-profile case, and I’ve seen him up front and seen the lawlessness that he could do."

Rosenberg: "And you believe it should happen?"

Bragg: "I believe we have to hold him accountable. I haven’t seen all the facts beyond the public, but I’ve litigated with him and so I’m prepared to go where the facts take me once I see them, and hold him accountable.

There's a fig leaf, but it's an embarrassingly narrow one.

"No one has been convicted based on this specific fact pattern before" isn't a defense.

No, but "any lack of clarity about what the law does and does not allow must be resolved in favor of the defense" is such a rule - the Rule of Lenity, to be precise. I know only Neil Gorsuch and like 17 other principled civil libertarians care about it, but still!

No it has never been established to at federal law (let alone FECA) can be a predicate for unlawful means. Never. Not once.

In fact it isn’t clear the NY statute has been used in fifty years let alone tying it to a federal crime.

There might not be anything exactly on point, but there isn't any case law I'm aware of that explicitly prohibits it, and the "lay of the land", so to speak, suggests it's okay. The courts have already ruled that Federal offenses could count for the old "habitual criminal" laws, and RICO cases usually involve state predicates. Neither of these is exactly on point, but they are indicative of the idea there isn't any problem with the cross-jurisdicational aspect of the case. I'm not entirely sold on the idea that there isn't an argument here, so if you have one, I'd love to hear it, but nothing I can think of off the top of my head suggests that this would be a problem.

I think those things are different. The first is using prior convictions (ie things adjudicated) as opposed to one sovereign substituting its opinion for the other. The second is also different in that federal law is a higher authority (within its limited scope). This is the opposite and I think that is important.

First, there is the preemption issue. Congress explicitly made the FEC and the DOJ the sole enforcers of FECA. This makes perfect sense because FECA governs national elections; not local. While most federal elections are local (1) the presidency is not and (2) the race in a particular race can have a big impact on the overall make up of the national body. Trying to have uniform rules makes sense because the rules implicate national elections. So this is a core federal interest and one congress spoke explicitly about. This makes for a very strong preemption argument. You could have NY take one view as to what is an unlawful contribution and another state take a complete opposite view colorable (hell there was a debate within FEC). So a candidate could be in a literal catch 22.

There is also the problem that here FECA is an incredibly complex set of laws bereft of a large body of caselaw to elucidate it and ride with first amendment issues. No wonder almost al action is civil in nature! Note this is even worse than it appears since a state judge will maybe encounter FECA issues once in a life time while FEC and DOj have special units dedicated to it. This is one where the experts in the law should be deferred to (ie another argument for preemption).

Third, unlike other cross border issues (where another state Supreme Court can issue an advisory opinion) there are no advisory opinions that can be issued by federal courts.

Fourth, Andy McCarthy makes a really good argument that the NY state constitution forbids incorporation by reference — especially in the context of non NY law. Andy also asks “where is the limiting principle — if NY can enforce another sovereign could the prosecution be based on sharia law.” Related to this I think (but could be wrong) the FECA law passed after this NY law was enacted. So we really think it was reasonable to believe NYS legislators incorporated federal election laws that didn’t exist at that time?

Fifth, there is the due process issue here of whether anyone was on notice that unlawful means h include federal law. There is a related (though somewhat disticint) rule of lenity issue.

Finally, I think these fears were borne out in this litigation. The experts passed but the partisan hack amateurs took it up. They really hid the ball that a criminal FECA violation requires willfulness (ie knowledge that it was wrong — no where did the prosecution even come close to that) but the judge decide not to explain what willfulness is as distinct from general intent. They also arguably badly mangled what a contribution is and didn’t properly explain when the reporting would occur (ie if you read everything in favor of the prosecution Trump allegedly misstated financials to win the 2016 even though he would not have to report a campaign contribution until after the election — try to make sense of that!). We could say these are errors. Or we could believe they are partisans tools of a blue state going after a red. In either case they upset the federal interest in having uniform election campaign laws and enforcement of those laws. The federal interest is massive while the state interest is relatively minor. This makes for a compelling preemption argument.

The thing that you and a lot of Trump supporters seem to miss when discussing the case is that you assume that the prosecution had to prove that Trump had to have committed the FECA violations himself in order to be criminally liable. That's not true; neither party disputed that the law applied to covering up misfeasance by someone else. Here, they had Cohen testify that he knew the payments were illegal at the time he made them, and that Trump reimbursed him through phony invoices for nonexistent legal work. That's the prima fascia case right there. Cohen was investigated and pleaded guilty (though his plea couldn't be used as evidence in Trump's case), so there's nothing controversial about whether a FECA violation actually occurred, unless you want to talk theoretically, which is pointless since Cohen isn't going to appeal.

Whether or not the case is preempted is a trickier matter, but New York didn't charge Trump with any campaign violations. He was charged with creating fraudulent records. In fact, the fact that this law has never been applied to FECA violations before actually tips the needle against preemption. If the law isn't aimed at regulating elections but at preventing fraud generally, then it's harder to argue that it's intruding on the policy goals that congress reserved to the Feds. Courts have already ruled that consumer protection issues relating to campaigns aren't preempted, even though they're directly related to campaign violations, so it's less likely that anyone would do so here. Not that there isn't an argument to be made, it just isn't as strong as some think it is.

I'm not an expert on the NY constitution so I'll leave that question to the Court of Appeals, who have the final say. I will say that whether or not Sharia Law applies in and of itself is a moot point. I imagine Sharia Law prohibits theft, and I don't think you'd have too much of a cross-jurisdictional issue if the predicate offense was theft in a country that has Sharia. If it's one of the things we Americans find more offensive, then prosecution would likely be barred on the grounds that it's contrary to public policy. It's an interesting question but crimes in other jurisdictions being used as the basis for related charges in others isn't exactly unheard of.

I think this post is wrong on many levels.

Cohen was dead to rights on much more serious tax violations and taxi medallion schemes. They threw in the FECA violation late and he plead to it (lesser crime). There is very much a dispute as to whether Cohen violated FECA and whether Trump knew about FECA.

Second, obtaining an NDA is legal work so hard to see how it is non existent. Moreover even if it were the sole person tying Trump to it is Cohen. Cohen stole 60k from Trump which Cohen viewed as “self help.” This guy would clearly lie, steal, and cheat if it could help him in any way. You don’t convict based on a guy like Cohen.

Third, FECA requires willfulness. Trump and Co had to know it was wrong; not just intend to do the actions that are prohibited. Your theory of the case then is that Trump and Cohen knew that by Cohen doing it that it was a FECA violation even though if Trump did it himself it would not be a violation. Since Cohen was solely acting as a middle man he wasn’t key to the scheme. There was no need to go through all this “scheming” to protect Cohen when Trump could’ve just done it himself. Trump has been looked at for years and they haven’t found crimes despite being a NY real estate developer. Do we think he knew option A was criminal and option B was not, both would get him what he wants, and he choose A? It just doesnt make sense.

I understand what you're saying but these are questions of fact for a jury. To take it individually:

There is very much a dispute as to whether Cohen violated FECA and whether Trump knew about FECA.

Whether Cohen violated FECA is irrelevant since the New York law doesn't require that the predicate act actually be committed, only that intent exists to cover up a violation. Whether Trump knew about it is a question of fact for a jury.

Second, obtaining an NDA is legal work so hard to see how it is non existent. Moreover even if it were the sole person tying Trump to it is Cohen. Cohen stole 60k from Trump which Cohen viewed as “self help.” This guy would clearly lie, steal, and cheat if it could help him in any way. You don’t convict based on a guy like Cohen.

Whether or not the invoices were legitimate is a factual question, and ultimately an irrelevant one, since it wasn't raised as a defense. Cohen certainly isn't the most credible person, but the credibility of a witness is an issue for the jury to determine.

Third, FECA requires willfulness. Trump and Co had to know it was wrong; not just intend to do the actions that are prohibited. Your theory of the case then is that Trump and Cohen knew that by Cohen doing it that it was a FECA violation even though if Trump did it himself it would not be a violation. Since Cohen was solely acting as a middle man he wasn’t key to the scheme. There was no need to go through all this “scheming” to protect Cohen when Trump could’ve just done it himself. Trump has been looked at for years and they haven’t found crimes despite being a NY real estate developer. Do we think he knew option A was criminal and option B was not, both would get him what he wants, and he choose A? It just doesnt make sense.

Again, what Trump knew or didn't know or intended to do or didn't intend to do are core factual issues in a case like this. You're entitled to think that the jury got it wrong, but simply disagreeing with the jury isn't grounds for an appeal (at least not good grounds; you could theoretically argue that the verdict was unreasonable given the evidence and ask the trial judge for reconsideration, but judges in general are loathe to second guess juries).

I agree that judges are loathe to second guess but if there was ever a case…here is one. There are many other legal problems including numerous rulings by Merchan. So we don’t need to get to the facts to overrule and fully suspect this case will be tossed eventually. But in the court of public opinion it is more than fair to say yeah the facts here stink to high heavens and a biased jury pool was led by a board judge to make a biased ruling.

Cohen was investigated and pleaded guilty (though his plea couldn't be used as evidence in Trump's case), so there's nothing controversial about whether a FECA violation actually occurred, unless you want to talk theoretically, which is pointless since Cohen isn't going to appeal.

This is a non sequitur. Dumb people and people trying to get a good deal for other, real crimes, plead guilty to things that aren't actually crimes all the time. There is no logical way to bootstrap that to get to "nothing controversial about whether a FECA violation actually occurred". There may be all sorts of statutory, agency interpretation, and even constitutional defenses to the claim that a FECA violation actually occurred that Cohen simply did not pursue, but would nevertheless win the day in a court of appeals.

Which is why the judge didn't allow the guilty plea to be used as evidence that a crime occurred. I was merely responding to the OP's contention that there was some controversy within the FEC as to whether there was a violation because while that may have been true with respect to Trump, it wasn't with respect to Cohen. Cohen testified, nonetheless, to having committed all the elements of the violation he pleaded guilty to, which renders it a moot point.

Just set back for a second. You are relying 100% on the words of a notorious liar and thief to convict another man. There is no evidence to support that except for Cohen’s testimony. I don’t think your legal theory works but that’s besides the point. Let’s assume everything is as you say! Again reasonable doubt. And when the sole evidence is the words of a serial liar you just can’t get there.

I don't know what you want me to say here. You're allowed to call crappy witnesses. The defense is allowed to cross examine. The jury gets to decide whether to believe them. Whether reasonable doubt exists is a matter for the jury, not the court. The appeals court doesn't pore over the trial transcript and decide if the jury made the right decision.

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Cohen testified, nonetheless, to having committed all the elements of the violation he pleaded guilty to, which renders it a moot point.

Again, not if there is a statutory, agency interpretation, or constitutional defense which would imply that, even if all the claimed elements are true, it is nevertheless, not a crime.

It's kind of weird that you acknowledge on the one hand that there is a difference between Trump/Cohen ("while that may have been true with respect to Trump, it wasn't with respect to Cohen"), but then view Cohen's testimony as the final word for Trump. But that simply doesn't follow. Trump can still just say, for example, "Sure, Cohen's testimony may be completely true as to which actions were taken and that they satisfy the elements of the statute, but there is still a constitutional defense to reading the statute in a way that allows these facts to constitute a crime." So TBH, I'm really just not sure what you're trying to say, so I'm mostly just asking for clarification.

The prosecution only had to prove that Trump intended to conceal a crime. They didn't have to prove the crime itself, or even that a crime was committed. The jury can infer intent from the course of conduct, even if none of the individual elements of that conduct are crimes or even elements of the crime. When you have testimony by people saying they committed FECA violations on Trump's behalf, it's no surprise that the jury found there was intent. When people say that Trump never explicitly said he was trying to conceal the crimes or knew what the crimes were, they're either inappropriately conflating the requirements of FECA itself with the crime he was actually charged with, or assuming that direct evidence is necessary.

That's why I brought up the burglary example in an earlier post. You don't need the trespasser to be caught in the act of stealing or provide a witness who says the trespasser told him he intended to break in and steal something. If the jury finds through other evidence that the circumstances prove an intent to steal, they can convict. In the Trump case you might not personally believe that the evidence was persuasive, but arguing insufficiency of evidence is rarely enough to overturn a conviction. Appellate courts aren't there to second guess juries.

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