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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.
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?
Sorry, I was trying to respond while pumping gas. In your hypothetical it wouldn't be an appeal but a post-conviction habeas corpus petition that would be filed after the court declares the underlying offense unconstitutional. I'm not going to go too deep into what the outcome of such a petition would be but I'd note that these are relatively rare and are only granted in extraordinary circumstances, and your hypothetical is complicated by the fact that the records destruction statute puts an extra layer between the defendant and the unconstitutional law. My first inclination would be that the defendant in your hypothetical would not be entitled to habeas corpus, especially at the state level, but I'm no expert.
I would add that the chances of any of this applying in the Trump case are incredibly slim, since Trump didn't challenge the validity of FECA in any of his pleadings and it's unlikely that any of the provisions at-issue will be struck down in the meantime.
Ok, so in Lawrence, itself, if the prosecution had a law WRT sodomy that is similar to the Catch A Predator laws, making it illegal to just have the intent to commit sodomy, and they only argued that Lawrence had the intent to commit sodomy, so no questions need to be asked about whether sodomy actually occurred (because perhaps, they actually 'caught the sodomy predator' before the act), and no questions can be asked about whether laws against sodomy are illegal, then they would have said, "Nothing wrong at all with this underlying question evading review"? Is that what you really think?
The business about having a "extra layer" statute in between is no problem whatsoever. They already had the one statute about sodomy, itself. All the state needed to do was pass a separate, Catch A Predator law, outlawing say, using a motor vehicle with the intent to go to a place to commit sodomy (they can sprinkle in a variety of other underlying offenses to make it a more 'general law'). They just always only prosecute the latter and never prosecute the former. There's an extra layer, so no defendant can challenge and say, "No, dawg, laws against sodomy are unconstitutional." Is this what you're really going with? Jonathan Mitchell is going to have a field day...
At the end of the day, even just explaining how this is supposed to work, as a technical matter, is just driving home the fact that this entire sham is a cleverly-designed procedural trick to prosecute a politician for something that very well may be constitutionally-protected behavior. You may even ultimately be right that this procedural trick will manage to evade review, but even if so, the public can rightly acknowledge that it's a bullshit procedural trick and believe that if the underlying conduct had been subject to serious constitutional scrutiny, it would have been determined that Trump didn't actually do anything wrong. The entire argument is concerning how we cleverly wordsmith things to evade review and just completely avoid even addressing the constitutional issues.
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