This weekly roundup thread is intended for all culture war posts. 'Culture war' is vaguely defined, but it basically means controversial issues that fall along set tribal lines. Arguments over culture war issues generate a lot of heat and little light, and few deeply entrenched people ever change their minds. This thread is for voicing opinions and analyzing the state of the discussion while trying to optimize for light over heat.
Optimistically, we think that engaging with people you disagree with is worth your time, and so is being nice! Pessimistically, there are many dynamics that can lead discussions on Culture War topics to become unproductive. There's a human tendency to divide along tribal lines, praising your ingroup and vilifying your outgroup - and if you think you find it easy to criticize your ingroup, then it may be that your outgroup is not who you think it is. Extremists with opposing positions can feed off each other, highlighting each other's worst points to justify their own angry rhetoric, which becomes in turn a new example of bad behavior for the other side to highlight.
We would like to avoid these negative dynamics. Accordingly, we ask that you do not use this thread for waging the Culture War. Examples of waging the Culture War:
-
Shaming.
-
Attempting to 'build consensus' or enforce ideological conformity.
-
Making sweeping generalizations to vilify a group you dislike.
-
Recruiting for a cause.
-
Posting links that could be summarized as 'Boo outgroup!' Basically, if your content is 'Can you believe what Those People did this week?' then you should either refrain from posting, or do some very patient work to contextualize and/or steel-man the relevant viewpoint.
In general, you should argue to understand, not to win. This thread is not territory to be claimed by one group or another; indeed, the aim is to have many different viewpoints represented here. Thus, we also ask that you follow some guidelines:
-
Speak plainly. Avoid sarcasm and mockery. When disagreeing with someone, state your objections explicitly.
-
Be as precise and charitable as you can. Don't paraphrase unflatteringly.
-
Don't imply that someone said something they did not say, even if you think it follows from what they said.
-
Write like everyone is reading and you want them to be included in the discussion.
On an ad hoc basis, the mods will try to compile a list of the best posts/comments from the previous week, posted in Quality Contribution threads and archived at /r/TheThread. You may nominate a comment for this list by clicking on 'report' at the bottom of the post and typing 'Actually a quality contribution' as the report reason.
Jump in the discussion.
No email address required.
Notes -
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.
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
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.
It is not a matter of fact like whether they're actually of legal age or not. It's whether the thing, itself, is actually a crime. Suppose the case is that they intended to show up and sleep with a person of age X, and sleeping with a person of age X is, by statute, considered a crime. Now, hypothetically, imagine that the defendant wants to raise a constitutional challenge to say that such a law, making it illegal to sleep with a person of age X, is not constitutional. Here, we're even removing the question of statutory interpretation (which may still be live). It's not about whether or not you did or didn't actually carry through with your intent to do the thing; it's challenging whether the underlying thing is even a crime in the first place.
To get into the weeds a bit, the prosecution never had to argue that the specific pattern of conduct Cohen engaged in was necessarily a violation. The jury instructions stated the law and it was up to the jury to determine if Trump intended to break that law. They determined that he did. If Trump intended to cover up a campaign finance violation the fact that he made a mistake as to whether there was an actual violation is irrelevant. That the facts indicated that Cohen's actions constituted a violation only make the case stronger. Suppose he thought Cohen stole campaign funds and made phony invoices to make the assumed theft look like legitimate payments. If it turned out that Cohen hadn't actually stolen the funds he'd still have the intent to cover up a crime; the law is clear that a crime need not be committed. Similarly, If he thought Cohen had committed a campaign finance violation that hadn't actually occurred and tried to cover it up his mistake of fact wouldn't be a defense. I would note that the defense never tried to challenge this, so it isn't fair game for an appeal anyway.
You didn't actually engage with the hypo. Please engage with the hypo. Let's make it even more clear by changing it from statutory rape to sodomy. Suppose we're one month pre-Lawrence. Someone makes what is argued to be a false business record in order to cover up what he thinks is a criminal act of sodomy. No one (at this point) is arguing that it turns on whether or not the sodomy in question was actually committed. Instead, he sees Lawrence sitting on the court's docket and thinks, "Damn, if they say that sodomy is actually not a crime, I bet I can appeal this shit."
Or hell, do you think that it would currently, post-Lawrence, be allowed to prosecute someone for intending to cover up an act of sodomy, and your reasoning will be because the underlying act of sodomy doesn't have to have happened... they just have to have intended to cover up some not-a-crime sodomy?
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link
More options
Context Copy link