This morning the “talking heads” programs did not disappoint which is to say that they were as expected. They attacked Trump relentlessly. Whether it will make any difference in November is anybody’s guess. So far independents seem to be leaning slightly towards disapproving of Trump even more than they did before his convictions.
I think that if the Congress does one thing between now and the end of the present term it should enact a law preventing the strategy used in Trump’s NYC trial explicitly, cross-ruffing between unadjudicated federal crimes and state and local ones to upgrade misdemeanors to felonies. To my eye the risks if they don’t are quite high.
Congress isn’t going to do any such thing (unless Trump wins), “preventing the cross-ruffing between unadjudicated federal crimes and state and local ones to upgrade misdemeanors to felonies”
That would be the equivalent of Democrats saying this prosecution is lawfare and they are abusing their prosecutorial powers.
What a description of Two Minute Hate in the 21st century.
What bad thing would happen? Are we prosecuting too many politicians?
Steve
“What bad thing would happen? Are we prosecuting too many politicians?”
Which (no doubt) intentionally misses the point. I believe what Dave is pointing out is that this cross-ruffing, or as J Turley called it, “zapping into life,” different sets of legal issues in different levels of jurisdiction will inevitably lead to the most convoluted prosecutions imaginable. Like this one.
The key to Bragg’s case was the notion that a NY law precludes “a contribution for the purpose of “influencing an election.” But the former Chairman of the FEC points out that the US definition of a influencing and what constitutes campaign contribution is quite objective under the law, but quite subjective in this case. He cites three examples:
1. HRC’s move to NY so she could run for NY senator
2. Sealing of divorce records
3. Settling business lawsuits. Or NDA’s.
All clearly designed to “influence an election,” but none are unlawful under mixed motive. The judge barred this testimony, clearly one of the two most powerful arguments for reversal. Notably, the judge allowed the prosecution to repeatedly claim this was unlawful, without evidence, and in his instructions. Viola! Crime. As J Turley pointed out: with the judges rulings, and his instructions how could the jury not convict? Blame the prosecution and judge, not the jury.
Mr Smith went on to point out flaws in the prosecutions theory on expenses vs contributions, and reporting issues. The interested reader can easily fine Mr. Smiths remarks on line. I doubt many will be interested.
Given that the judge also gave the jury a simply bizarre instruction on “no need to unanimous/smorgasbord” approach you have a second prime item for reversal. And not to mention 6th Amendment issues on ability to know the charges and mount a defense.
But as Alan Dershowitz pointed out, getting the NY appellate system to react may prove very difficult. The left got what they wanted, taint without proper judicial process. The pious comments about the glory of our judicial system fall flat. One might recall that OJ Simpson chopped his wife’s head off and got away with it for one reason: he was OJ Simpson. And Bill Clinton paid Paula Jones $850K to shut up, perjured himself, and got away with it.
To Dave’s point, and so many in the legal profession of various political stripes, this will have very unfortunate consequences. To slough it off as “prosecuting too many politicians” is juvenile.
Drew: The key to Bragg’s case was the notion that a NY law precludes “a contribution for the purpose of “influencing an election.”
That is incorrect. Sealing divorce papers is not unlawful. Signing NDAs is not unlawful. Gee whiz, paying off a porn star is not unlawful. What is unlawful is falsifying business records to hide paying off a porn star, unlawfully seeking to promote an election. What is unlawful is funneling a campaign contribution through a third party.
Drew: All clearly designed to “influence an election,” but none are unlawful under mixed motive.
As for mixed motive, the standard is whether the payment would have been made irrespective of the candidacy. If the jury found reasonable doubt whether as to whether Trump would have paid off the porn star regardless of his candidacy, then it would have resulted in an acquittal.
Drew: The judge barred this testimony, clearly one of the two most powerful arguments for reversal.
Of course he did. Legal opinions are not evidence, so they are precluded under the rules of evidence. Legal opinions can be provided to the judge through a legal brief.
Drew: I believe what Dave is pointing out is that this cross-ruffing, or as J Turley called it, “zapping into life,” different sets of legal issues in different levels of jurisdiction will inevitably lead to the most convoluted prosecutions imaginable.
New York Penal Law § 10.00 considers an offence to include a “rule or regulation of any governmental instrumentality”. New York law punishes based on criminal intent. It would be odd that criminal intent wouldn’t apply to federal offenses that threaten the integrity of business records in New York, so the legislature crafted laws so that it does. More particularly, New York courts have upheld out-of-state offenses to be included in the term “any crime” (People v. Kulakov). Nor is this a novel concept: There are many instances where predicate crimes were federal.
One other point, the statute, New York Penal Law § 175.10, has often been enforced. It’s even been enforced when the predicate crime resulted in acquittal.
Drew: The key to Bragg’s case was the notion that a NY law precludes “a contribution for the purpose of “influencing an election.”
That is incorrect. Sealing divorce papers is not unlawful. Signing NDAs is not unlawful. Gee whiz, paying off a porn star is not unlawful. What is unlawful is falsifying business records to hide paying off a porn star.
Drew: All clearly designed to “influence an election,” but none are unlawful under mixed motive.
As for mixed motive, the standard is whether the payment would have been made irrespective of the candidacy. If the jury found reasonable doubt as to whether Trump would have paid off the porn star regardless of his candidacy, then it would have resulted in an acquittal.
Drew: The judge barred this testimony, clearly one of the two most powerful arguments for reversal.
Of course he did. Legal opinions are not evidence, so they are precluded under the rules of evidence. Legal opinions can be provided to the judge through a legal brief.
Drew: I believe what Dave is pointing out is that this cross-ruffing, or as J Turley called it, “zapping into life,” different sets of legal issues in different levels of jurisdiction will inevitably lead to the most convoluted prosecutions imaginable.
New York law includes an element criminal intent. New York Penal Law § 10.00 considers an offense to include a “rule or regulation of any governmental instrumentality”. It would be odd that criminal intent would not apply to federal offenses that threaten the integrity of business records in New York, so the legislature crafted laws so that it does. More particularly, New York courts have upheld out-of-state offenses to be included in the term “any crime”. Nor is this a novel concept: There are many instances where predicate crimes were federal.
One other point, the statute, New York Penal Law § 175.10, has often been enforced. It’s even been enforced when the predicate crime resulted in acquittal.