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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:
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.
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.
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.
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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.
What I want is for you to say “yeah it is bullshit to solely rely on the words of serial perjurer and thief.” Not a hard thing to do.
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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.
How about saying, "The thing they judged that I had intent to conceal is just not a crime", because there are constitutional/other reasons that that thing isn't a crime? That's a question of law, yes?
It's a question of law but it's irrelevant. If you think you're committing a crime then you've satisfied the intent requirement, regardless of whether the action you committed actually is a crime or not. This is how people get busted on To Catch a Predator type shows. They could argue since everyone involved was of legal age there was no crime, except they obviously showed intent to break the law even though there was never any chance of anyone being harmed. Whether or not this intent exists is a question for the jury.
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