NY: Trump on Trial!

[Fmr. Gov. NickG]

If the DA believes Trump committed election interference under NY state law, why isn't he charged with election interference in the indictment?

[Fmr. Gov. NickG]

If the DA believes Trump committed election interference under NY state law, why isn't he charged with election interference in the indictment?

The DA may not believe he committed election interference under NY state law. The DA may believe he committed election interference under NY state law but may think there is not proof beyond a reasonable doubt that he did. The DA may believe he committed election interference under NY state law and think there is proof beyond a reasonable doubt that he did but may think a jury will not be convinced that there is proof beyond a reasonable doubt that he did. The DA may believe he committed election interference but is using his prosecutorial discretion to charge what he believes is his strongest case so as not to overcharge. It's probably 1 of those.

But if he believes any of this, how can he assert election interference as the underlying crime to make falsification a felony?  Don’t you have to prove all elements of a crime beyond a reasonably doubt to convict on the crime?  So if there jury believes there’s reasonable doubt on election intereference, they can’t convict on records falsification for the purpose of election interference.

[Fmr. Gov. NickG]

There are so many things wrong with this case and I have some quite choice words for Mr. Bragg, but the most glaring problems are 1) Statue of Limitations and 2) NY doesn't have jurisdiction over a federal matter, and the Feds declined to prosecute this case. I think its incumbent upon SCOTUS to step in and shut the case down now. Usually, they don't get involved until the appeals process, but given the unprecedented nature of this case plus the horrific ramifications it could have on our body politic, its best to be shut down now.

I think the SoL question has already been conclusively resolved. If Trump has a legitimate argument there, it would have gone through the appeals process well before this stage of the case.

While point (2) doesn't prevent NY from bringing this case, I do think it points to significant weakness in any attempt to rely on federal campaign finance law as an underlying crime to make the records falsification a felony.  I really do hope the prosecution leans on something stronger to make their case if they have any hope for conviction.

[Fmr. Gov. NickG]

Can people refrain from just posting tweetstorms in this tread without any context.  They really make the thread much more difficult to follow.  They take up so much of the space in the thread and marginalize any actual discussion from posters. Maybe at least summarize and contextualize these tweets at the top of the post?

[Fmr. Gov. NickG]

Can people refrain from just posting tweetstorms in this tread without any context.  They really make the thread much more difficult to follow.  Maybe at least summarize and contextualize these tweets at the top of the post?

The context is this trial is now live & ongoing at this time. The "generally-2 & otherwise (quote)" rule is being abided by as requested by the relevant Mods. The most recent post of 4 tweets was posted because it looked directly relevant to the tangentially-ongoing discussion you're participating in about something that was already resolved. Ironic for following along

Ok, but this thread isn't the place for up-to-the-minute news about the trial. We have news sites for that, or Twitter itself if that's your preference.

It's a place for discussion of the trial. You're mostly just posting updates from other people without any discussion.

[Fmr. Gov. NickG]

The fact that this was allowed - in and of itself - is still insane to me

https://twitter.com/DEADLINE/status/1779901490594775368

IANAL, but generally aren't prosecutors allowed to establish a defendant's pattern of conduct and their history of lying? Are trump's various other actions to manipulate the press, suppress true stories and promote fake ones not relevant to his character and his willingness to commit crimes?

I think a pattern of other related -crimes- is sometimes considered relevant to establish the likelihood of committing a similar crime.  But lying to reporters is generally not a crime.  You're not allowed to just introduce evidence that someone is generally a bad person. 

On the other hand, ff someone is a witness, you often can introduce evidence that a person is dishonest to impeach the credibility of their testimony.  Which is why a lot of this stuff could potential come in to cross examine Trump as a witness, but couldn't be used if he doesn't testify.

[Fmr. Gov. NickG]

According to news reports, over half of the jury pool has already been dismissed on the impartiality question, when 40% was the expected number . This case might die on appeal

What does this mean?  Why is 40% the "expected" number?

[Fmr. Gov. NickG]

I haven’t followed the details of each individual juror, but I’m surprised the prosecution is letting lawyers onto the jury.  I had thought it was common knowledge that lawyers were generally good for the defendant.  I myself was once seated as a potential juror in a criminal trial (I think a drug sale case), but was dismissed by the prosecution when I told them I had a law degree.

[Fmr. Gov. NickG]

This trial is already exposing a schism among progressive election law scholars to an extent that I’ve very rarely seen….exemplified by the current Twitter feud between Rick Hasen and Laurence Tribe.

[Fmr. Gov. NickG]

This trial is already exposing a schism among progressive election law scholars to an extent that I’ve very rarely seen….exemplified by the current Twitter feud between Rick Hasen and Laurence Tribe.

Perhaps you can say what is disputed in the twitter feud for those of us who do not want to support the evil empire by making an account.

Hasen wrote an LA Times editorial where he strongly criticizes the case saying, “Calling it election interference actually cheapens the term and undermines the deadly serious charges in the real election interference cases.”

Here’s the link:
https://www.latimes.com/opinion/story/2024-04-14/donald-trump-new-york-alvin-bragg-stormy-daniels

Tribe responded to Hasen’s Twitter post to the article with a rather ugly ad hominem attack on Hasen’s intelligence.

[Fmr. Gov. NickG]

This trial is already exposing a schism among progressive election law scholars to an extent that I’ve very rarely seen….exemplified by the current Twitter feud between Rick Hasen and Laurence Tribe.

Perhaps you can say what is disputed in the twitter feud for those of us who do not want to support the evil empire by making an account.

Hasen wrote an LA Times editorial where he strongly criticizes the case saying, “Calling it election interference actually cheapens the term and undermines the deadly serious charges in the real election interference cases.”

Here’s the link:
https://www.latimes.com/opinion/story/2024-04-14/donald-trump-new-york-alvin-bragg-stormy-daniels

Tribe responded to Hasen’s Twitter post to the article with a rather ugly ad hominem attack on Hasen’s intelligence.

Tribe wasn't talking about GA or maybe DC? It's idiotic to say this case is about election interference.

Well Tribe currently has the following as the pinned tweet on his twitter account:

The criminal trial that begins April 15 has a theme almost nobody has yet fully appreciated. It’s the through line of illegally manipulating elections by distorting the information on the basis of which those elections are decided.

https://twitter.com/tribelaw/status/1779511090616909891

[Fmr. Gov. NickG]

Here is a extream TDS liberal who actually does a decent breakdown

https://www.sidebarsblog.com/p/trump-goes-to-trial

I looked over this article, and this part surprised me:

Alternatively, the defense will argue that even if Trump did intend to falsify the documents, he had no intent to further another crime and the jury should find him guilty only of a misdemeanor. The jury will have that option as to each count; the misdemeanor charge is what’s known as a lesser included offense.

This conflicts with what I have read elsewhere.  I had thought that the misdemeanor charge was not currently an option for the jury, and that one of the lawyers would have to bring a motion for it to bt included.  Does anyone have a definitive answer on this?

[Fmr. Gov. NickG]

Here is a extream TDS liberal who actually does a decent breakdown

https://www.sidebarsblog.com/p/trump-goes-to-trial

I looked over this article, and this part surprised me:

Alternatively, the defense will argue that even if Trump did intend to falsify the documents, he had no intent to further another crime and the jury should find him guilty only of a misdemeanor. The jury will have that option as to each count; the misdemeanor charge is what’s known as a lesser included offense.

This conflicts with what I have read elsewhere.  I had thought that the misdemeanor charge was not currently an option for the jury, and that one of the lawyers would have to bring a motion for it to bt included.  Does anyone have a definitive answer on this?

The jury may decide to convict on a simpler misdemeanor charge, but acquit on a more convoluted felony charge.
If convicted on a misdemeanor charge, the judge will dismiss the case.

But again, this conflicts with Redban's immediately previous post, where he links to the Politico article claiming that Trump's lawyers would have to file a motion that the misdemeanor charges be included as an option before the jury could even consider them.  This is the uncertainty I'm trying to resolve.

[Fmr. Gov. NickG]

Here is a extream TDS liberal who actually does a decent breakdown

https://www.sidebarsblog.com/p/trump-goes-to-trial

I looked over this article, and this part surprised me:

Alternatively, the defense will argue that even if Trump did intend to falsify the documents, he had no intent to further another crime and the jury should find him guilty only of a misdemeanor. The jury will have that option as to each count; the misdemeanor charge is what’s known as a lesser included offense.

This conflicts with what I have read elsewhere.  I had thought that the misdemeanor charge was not currently an option for the jury, and that one of the lawyers would have to bring a motion for it to bt included.  Does anyone have a definitive answer on this?

The jury may decide to convict on a simpler misdemeanor charge, but acquit on a more convoluted felony charge.
If convicted on a misdemeanor charge, the judge will dismiss the case.

But again, this conflicts with Redban's immediately previous post, where he links to the Politico article claiming that Trump's lawyers would have to file a motion that the misdemeanor charges be included as an option before the jury could even consider them.  This is the uncertainty I'm trying to resolve.

Yes, that is an option, and the defense will pursue it depending on how the trial goes.
But if you ask me, there is no harm in including these lesser charges as they give the jury an easy way out.

This response doesn't make things clear at all.
My specific question is: Is it an option for the jury as the charges stand right now, or it is only an option if the defense files a motion to make it an option?

[Fmr. Gov. NickG]

Lesser-included offenses depend on the charging document and how its worded. There are times that there will technically be lesser included offenses that are applicable but both sides agree that the jury shouldn't be instructed on them; its often a strategic decision for both sides. Including a lesser gives them an easier out to convict the defendant of something (even if its only something minor) if they can't agree on the main charge...but not including the lesser also increases the chance that they'll just throw up their hands and say not guilty. Usually each state supreme court produces model instructions that will have the usual lesser-included offenses that the jury can be instructed on but I can't find New Yorks for this charge at the moment.

OK, I know all this....but are the lesser included charges included in this case as of right now?

Why am I getting so many replies to my question that don't answer my question?

[Fmr. Gov. NickG]

The jury pool should really just be drawing from people who have just woken up from being in a coma for at least the last 10 years.

[Fmr. Gov. NickG]

You are completely missing the point.
Anti-Trump jurors feel threatened even when there are no threats because they are aware of their bias, and they know that any potential future intimidation directed at them would actually be justified. That is why they decide to quit after "further reflection".

A fair-minded person would not even consider a possibility that they would be a target of intimidation.

Therefore, for jury integrity, and to root out Tramp haters, it is imperative that they be under impression that they would be targeted by MAGA fanatics.

I have a question. What if an anti-Trump juror votes to acquit and Trump is acquitted? Should they feel threatened right now?

And along those lines, what if a pro-Trump juror votes to convict and Trump is convicted? Should they feel threatened right now?

The possibility that a pro-Trump juror will vote to convict is Zero.

If any juror goes in with zero possibility of convicting regardless of the evidence, they aren’t unbiased and obviously should exclude themselves from the jury.

[Fmr. Gov. NickG]

Do anyone else think that Bragg is leaving a much stronger case on the table by concentrating on this election interference stuff?

The basic facts of this case are that Trump falsified business records to cover up affairs.  In order for the falsification to be a felony, it needs to be in furtherance of another crime.  So to do this, Bragg for some reason thinks he needs to think of some convoluted way in which the hush money payments constitute election interference or campaign finance violations.  This part of the case has always struck me as incredibly weak.

But he shouldn't need to do this.
Adultery in New York is a crime.  If you are falsifying records to cover up an affair, it can be prosecuted as a felony because the affair itself in the underlying crime.
Trump might not be guilty of adultery with Stormy Daniels, because my impression was the affair was not conducted in New York.  But he almost certainly did commit adultery in New York with Karen McDougal.

So why not concentrate this case on the payments to McDougal to cover up the crime of adultery, and just leave out any feeble connection to election interference?

I know the adultery law in New York might not be popular, but an unbiased jury would be expected to uphold the law whether they like it or not, and this seems like an ironclad case if judged by the letter of the law.

[Fmr. Gov. NickG]

Do anyone else think that Bragg is leaving a much stronger case on the table by concentrating on this election interference stuff?

The basic facts of this case are that Trump falsified business records to cover up affairs.  In order for the falsification to be a felony, it needs to be in furtherance of another crime.  So to do this, Bragg for some reason thinks he needs to think of some convoluted way in which the hush money payments constitute election interference or campaign finance violations.  This part of the case has always struck me as incredibly weak.

But he shouldn't need to do this.
Adultery in New York is a crime.  If you are falsifying records to cover up an affair, it can be prosecuted as a felony because the affair itself in the underlying crime.
Trump might not be guilty of adultery with Stormy Daniels, because my impression was the affair was not conducted in New York.  But he almost certainly did commit adultery in New York with Karen McDougal.

So why not concentrate this case on the payments to McDougal to cover up the crime of adultery, and just leave out any feeble connection to election interference?

I know the adultery law in New York might not be popular, but an unbiased jury would be expected to uphold the law whether they like it or not, and this seems like an ironclad case if judged by the letter of the law.

My first thought is that no politician in either party wants to start prosecuting over adultery.

Sure, I understand that.  But he wouldn't be prosecuted for adultery. He'd be prosecuted with business fraud to cover up adultery.  Which is exactly what Trump did in this case.  Just like Clinton wasn't impeached for the affair, he was impeached for the cover up.  And Republican politicians seemed to have no problem with that.

[Fmr. Gov. NickG]

My dad thinks Trump won't be acquitted.

Huge difference between won’t be acquitted and will be convicted though.

[Fmr. Gov. NickG]

Are the prosecutors actually going to present any evidence that Trump did have an affair with Stormy Daniels?  I suppose the truth of this might not be legally decisive in this case, but Trump would look a lot more sympathetic if he were in fact being blackmailed over a false allegation.

[Fmr. Gov. NickG]

Is this entire case really going to rely on the assertion that the hush money payments constitute an in-kind campaign contribution?? I just can't see it.

[Fmr. Gov. NickG]

Is this entire case really going to rely on the assertion that the hush money payments constitute an in-kind campaign contribution?? I just can't see it.

Do you think they should be classified as income to the middle man? Because it sounds like they're going to show Cohen was paid for them as though they were for services rendered.

Are you suggesting that they're going to rely on tax fraud as the underlying crime? I could buy this a little more, but it still seems weak since by all accounts Cohen declared it all as income and paid more than his share of taxes on it. And has the prosecution even mentioned this?

[Fmr. Gov. NickG]

Is this entire case really going to rely on the assertion that the hush money payments constitute an in-kind campaign contribution?? I just can't see it.

Yes, that's a literally perfect description of what Cohen was sentenced to 3 years in federal prison for (& what AMI settled with both the DOJ & FEC over) committing & concealing at Trump's direction, & why!

Cohen was never tried in court.  He had a bunch of other charges on him, and he may have pled to campaign finance charges just to reduce the other ones.

Regardless of what Cohen was sentenced for, the question is whether the hush money payments are a campaign expense.  And I'm just not buying that they are. Or at least I'm not buying that this claim is so obviously true that it should overcome the principle of lenity in statutory interpretation in favor of a defendant.

[Fmr. Gov. NickG]

Regarding the other crime, it looks like they’re not relying on federal campaign finance violation. They are relying on an NY misdemeanor, which might be an issue on appeal

prosecutors have often been vague about what, exactly, is the underlying crime that was allegedly being concealed or furthered in the hush money case. But on Tuesday, prosecutor Joshua Steinglass said the statute in question is New York State Election law 17-152 — conspiracy to promote or prevent an election. That law makes it a misdemeanor when “any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means.”

Steinglass said the entire prosecution theory “is predicated on the idea that there was a conspiracy to influence the election in 2016.”

But this would mean the other crime is a likely-expired misdemeanor, which has a 2 year statute of limitations: https://www.nysenate.gov/legislation/laws/ELN/17-152

https://www.washingtonpost.com/politics/2024/04/23/trump-trial-takeaways-hush-money-immunity/

But what are the "unlawful means" here? Based on this statute, it's not a crime to influence an election unless you do so by committing some other crime.