NY: Trump on Trial!

[Fmr. Gov. NickG]

Do they have any precedent in which this sort of unrelated payment from a candidate's personal account was held was held to constitute a reportable contribution to their campaign?

Will the prosecution be calling expert witnesses to testify as to the applicability of the FECA to this situation?

[Fmr. Gov. NickG]

Do they have any precedent in which this sort of unrelated payment from a candidate's personal account was held was held to constitute a reportable contribution to their campaign?

Yes, all of the associated caselaw, per the D.A.'s opposition to Trump's motion-to-dismiss:

As set out in the Statement of the Case above, the grand jury evidence showed that, shortly after announcing his candidacy for President, defendant conspired with others - including Cohen and Pecker - to promote his election through a series of transactions that involved purchasing damaging information about defendant in order to suppress publication of that information. As relevant to this case, those transactions violated federal election laws because the payoffs to both McDougal and Daniels violated FECA's restrictions on corporate and individual contributions. Contrary to defendant's conclusory assertion in a footnote that this conduct did not violate FECA (DB: 15 n.5), both a federal court and the Federal Election Commission ("FEC") have examined these facts and found actual violations of FECA. Cohen pleaded guilty to FECA violations in connection with both the McDougal and Daniels payoffs and served time in prison. Tr. 937-938 (Cohen); see Judgment of Conviction, United States v. Cohen, No. 18-cr-602 (S.D.N.Y. Dec. 12, 2018) (PX-34). And the FEC - which has exclusive civil enforcement authority for FECA violations, see 52 U.S.C. § 30107(e) - found that AMI and Pecker knowingly and willfully violated FECA by making a prohibited corporate in-kind contribution when they purchased McDougal's story to help defendant's presidential campaign. Tr. 1089-1090 (Pecker); see Factual & Legal Analysis 2, 10-16, In re 1360 Media, LLC f/k/a American Media, Inc., & David J. Pecker, Federal Election Comm'n Matter Under Review 7324, 7332, & 7366 (Apr. 13, 2021) ("In re 4360 Media") (PX-35). The FEC's enforcement authority is civil, not criminal. See 52 U.S.C. § 30107(a)(6), (e). But a person who "knowingly and willfully" violates FECA's contribution limits is subject to criminal prosecution, 52 U.S.C. § 30109(d)(1)(A); and the FEC found reason to believe that both AMl and Pecker knowingly and willfully violated that statute. See Factual & Legal Analysis 2, 10-16, In re A360 Media (PX-35). The FEC's finding thus establishes that the facts cleared the threshold for FECA criminal culpability by AMI and Pecker.

The motion-to-dismiss' "conclusory assertion in a footnote that this conduct did not violate FECA" is the extent of Trump argument's on this point so far before trial/raising on appeal:

Even if the Court concludes that federal crimes can serve as object offenses under § 175.10, the evidence does not establish that the payments violated FECA. Under FECA, the third-party payments were not "contributions" or "expenditures" associated with President Trump's campaign because they were not made for the purpose of influencing an election and would have been made irrespective of the candidacy. See Buckley v. Valeo, 424 U.S. 1, 80 (1976); Orloski v. FEC, 795 F.2d 156, 162-63 (D.C. Cir. 1986); 11 C.F.R § 113.1(g)(6). President Trump reserves the right to make these arguments, if necessary, at trial and in connection with any challenges to the sufficiency of the evidence and fairness of future proceedings.

Will the prosecution be calling expert witnesses to testify as to the applicability of the FECA to this situation?

They presumably will, as this expert testimony probably proves critical to being able to sustain conviction on appeal, & Trump is:

The People's motion is granted to the extent that [Trump expert Bradley] Smith may not testify as a lay (fact) witness; offer opinion testimony regarding the interpretation and application of federal campaign finance laws and how they relate to the facts in the instant matter, nor may Smith testify or offer an opinion as to whether the alleged conduct tn this case does or does not constitute a violation of the Federal Election Campaign Act ("FECA"). However, Smith will be permitted to testify generally as to the following: general background as to what the Federal Campaign Commission ("FEC") is, background as to who makes up the FEC, what the FEC's function is, what laws, if any, the FEC is responsible for enforcing, and general definitions and terms that relate directly to this case, such as, for example, "campaign contribution".

The Court will monitor this testimony closely to ensure full compliance. Any deviation from this ruling could result in sanctions up to and including the striking of the expert's entire testimony.

This is informative and helpful, thanks!
I'll be eager to read the testimony on these points and certainly hope my initial impressions are wrong!

[Fmr. Gov. NickG]

Couldn't they get around any Confrontation Clause issues by just calling Dylan Howard as a witness?

[Fmr. Gov. NickG]

Sounds like the prosecution is making a good case for election interference.

I’m not following the day-to-day testimony super closely, but from what I can tell, the prosecution hasn’t really presented any evidence that any of this is actually illegal.

[Fmr. Gov. NickG]

Why are we back to the majority of posts just being reposting tweets with no commentary or context?

[Fmr. Gov. NickG]

This is a very good observation, and clarifies why Trump is the worst client a lawyer can have.

An easy defense would be that Trump cheated on his wife with a porn star and paid money for her silence, but that the defense will prove why it isn't a crime. Instead, they have to satiate his ego and base their defense on contrived motivations and complete fabrications.

But if Trump cheated on his wife in New York, that -is- a crime, and falsifying business records to conceal adultery would then be a felony.  This seems like a much more straightforward argument to make any any tenuous connection to campaign finance.

[Fmr. Gov. NickG]

Well the goal isn't just to get him on anything. He (allegedly) broke the law to illegally influence the election and that is a crime worth prosecting, for the deterrent effect if nothing else. Who cares if it's technically illegal that he cheated on his wife?

He’s not being prosecuted for election interference, he’s being prosecuted for falsifying business records.  And I’m suggesting he still be prosecuted under the exact same crimes.  It would just be a much stronger letter-of-the-law case for making these crimes a felony. He wouldn’t be prosecuted for the affair, but for the cover-up.  It would be the exact same logic as the impeachment of Bill Clinton.

[Fmr. Gov. NickG]

Didn't expect Ben Roethlisberger to show up as a Trump accomplice! Can't imagine he's very popular in NYC.

[Fmr. Gov. NickG]

Honestly hearing some of the questions the prosecutor was permitted to ask Daniels without objection makes me wonder if Trump is deliberately trying to set up an appeal for ineffective counsel.

Like how on earth is asking whether Trump wore a condom not way more prejudicial than it is probative?

[Fmr. Gov. NickG]

What is the time table on when Trump might go to jail if convicted? I would assume there's an appeals process. Really don't think he would have much of a chance in that case, the Feds can't tell NY who they can put in jail and swing voters aren't going to want someone being president from jail. He'd struggle to get even 45% (which is still way too high but would keep him from winning)

Is it clear that the prosecutors are even seeking a prison sentence in this case?

[Fmr. Gov. NickG]

So far, the prosecution has only even attempted to prove a very small part of their case, and at least for me, it was the part I was already most inclined to believe going in.  I really hope we get off the hush money payment stuff really soon and move on to making the case about records falsification and campaign finance violations.

[Fmr. Gov. NickG]

I don’t actually think Trump is setting this up for an ineffective counsel appeal.
But I do think his lawyers may think his case is just stronger on an appeal asserting the prosecution failed to establish the crime as a matter of law than on genuinely disputing any fact questions for the jury.

[Fmr. Gov. NickG]

Prosecution says they could rest at the end of next week!

Wow, it’s really hard for me to see how the prosecution is going to be able to establish their case with only three more days of testimony.  They’ve spent an inordinate amount of time establishing that the hush money payments happened and what they were for, but almost no time establishing how any of what Trump did is actually illegal.

[Fmr. Gov. NickG]

It won't take a whole day to explain why Trump's actions violated the law. Establishing what Trump did takes way more time, how those actions were illegal could probably be summed up in about 10 minutes.

I don’t see how this can be true.  The case involves several very complicated and thorny issues of statutory and regulatory intepretation, constitutional rights of the criminally accused, and state versus federal jurisdiction that even progressive election law scholars are thoroughly divided on.  I’m a progressive election law scholar myself who has been skeptical of these charges from the outset, and the prosecution has done almost nothing the address my concerns.

[Fmr. Gov. NickG]

--snip--

Up now for the prosecution:

— Daniel Dixon, another custodial witness who works as a compliance analyst AT&T

We're starting to see phone records.

Why are phone records important to this case? It's been clear since the case has been charged.

On Oct. 26, 2016, Michael Cohen opened his shell company to funnel a $130,000 home equity loan to Stormy Daniels' lawyer — "shortly after speaking on the phone" with Trump

From the exhibits, it's clear that the phone records have Cohen's name, but it's not immediately clear it's the same call.

We'll wait for the release of today's exhibits later.

On cross, Trump's lawyer Emil Bove presses the witness on alternative explanations for the records.

Q: You're familiar with the concept of a pocket dial, right?
A: Correct.

Q: There's a lot of data here, but the data has limits, right?
The witness says they are logs.

--snip--

Thanks for posting in this format, it makes it a LOT more readable.

Yes, I strongly agree with this, thanks!  My major issue with all the tweets posted here is not with the content, but that it makes the thread much more difficult to read and follow.

[Fmr. Gov. NickG]

I don’t see how this can be true.  The case involves several very complicated and thorny issues of statutory and regulatory intepretation, constitutional rights of the criminally accused, and state versus federal jurisdiction that even progressive election law scholars are thoroughly divided on.  I’m a progressive election law scholar myself who has been skeptical of these charges from the outset, and the prosecution has done almost nothing the address my concerns.

Typically the job of juries is to decide "questions of fact," whereas it is the job of judges to decide "questions of law." This is partly because most jurors are non-lawyers and are not expected to be able to decide, or to decide, questions about things like statutory interpretation (although funnily enough, this particular case has 2 lawyer-jurors).

Juries are typically thought to be supposed to take the judge's interpretation of law as a given, and to follow the instructions given to them by the judge as to what the law is.

https://www.law.cornell.edu/wex/question_of_law

A question of law is an issue that is always resolved by a judge, not a jury, including:

    A question regarding the application or interpretation of a law
    A question regarding what the relevant law is, if there are two or more mutually exclusive laws, a judge determines which law is relevant
    A question that has been authoritatively answered by law, or
    A question of fact that nevertheless has been reserved for judges, not juries, to resolve

Questions of law are distinct from questions of fact, which are questions for a jury in a jury trial or a judge in a bench trial when acting as the factfinder. Mixed questions of law and fact are also often resolved by juries.

The judge's interpretation of the law can be debated, but if so, that is normally a matter for an appellate court to deal with, not a jury.



Of course, the distinction between questions of law and questions of fact is not exact and cannot always be cleanly separated. But at the same time, it is not like there is no distinction that can be made most of the time for practical purposes. Bottom line, it is not really the jury's job to wade into the sorts of questions that "legal scholars" worry about.



For example, suppose you have a murder case. The jury is supposed to decide if the defendant is guilty or not guilty of murder, after the judge explains to them what exactly murder is and what facts they would need to find to find the defendant guilty. On the other hand, the jury is not supposed to sit there and say, "but hey, I am reading the text of this murder statute with my fine-toothed comb, and under my interpretation it looks like murder is not a crime at all in the first place."

Juries can do that if they want in extreme circumstances and they can't be stopped if they choose to do so because of double jeopardy etc, but that is effectively jury nullification.

Yeah, I suppose much of my skepticism derives from issues that would need to be hashed out by an appellate court. It’s just striking to me how little the actual law seems to be coming into play in this trial when the law is so unclear as to its application to such an unusual set of facts.

[Fmr. Gov. NickG]

People are welcome to think what they like, but “TRUMP GUILTY; SENTENCED TO ONE YEAR HOUSE ARREST” will sting regardless of the charges/nature of the trial.

It's weird to me that we have seem to have no idea what penalty the prosecutors are seeking for a conviction here.  Like, isn't the definition of a felony a crime where the recommended sentence is more than one year in prison?  What is the purpose of carrying on a trial over several months for dozens of felony counts, which has presumably cost millions of dollars in public money, if you're not going to get a multi-year prison sentence for conviction?

[Fmr. Gov. NickG]

They can't recommend a sentence 'til a guilty verdict is in. Before sentencing, he'd be interviewed by the probation department, who'd prepare a pre-sentencing report for Merchan in addition to the sentence recommendations he'll receive from the prosecution & defense (& on top of an assumed motion from the defense to set aside the conviction in favor of an acquittal, which Merchan will almost certainly deny), then he'd be sentenced, typically anywhere from a few wks. to a few months after conviction, & we'll assume he was out on bail pending sentencing for the purposes of this discussion but if sentenced to prison time without being able to win bail on appeal, he'd immediately be remanded into the custody of New York state correctional officers, as there's no post-sentencing time given to report in New York criminal proceedings; the sentencing hearing is the report date, with the defendant handcuffed & remanded from the courtroom if receiving prison time (& amend the sentencing hearing to the verdict reading when unable to secure bail pending sentencing).

I understand there'd be no actual sentencing recommendation in this specific case yet.
But there's been like no discussion of sentencing guidelines or how similar past cases have been sentenced in the past.
Like, what do defendants who have been convicted of this crime usually get as a penalty? Isn't there a recommended sentence for each class of felony in the state?

[Fmr. Gov. NickG]

When do we get to the testimony about falsifying the business records?

[Fmr. Gov. NickG]

When do we get to the testimony about falsifying the business records?

Well we have the testimony today that he allegedly knew the money being paid to Cohen was repayment of the Daniels payoff and not for legal services. So that.

Yeah, Cohen testified that Trump personally approved of the Weisselberg scheme to have Cohen deliberately submit monthly invoices labeled "legal services rendered pursuant to the [retainer] agreement" that was in fact never real, so Trump then holding up his end of that approval by subsequently signing the checks accompanied by those stapled Cohen invoices, as testified to by prior witnesses, would be what caused them to be entered into the records, thereby falsifying those records to make them look like there was a retainer that never was.

Thanks, I haven’t really followed the specifics of this testimony.  But it really seems like they should really be having Weisselberg testify that Trump personally directed him to falsify the records.  What you describe Cohen as saying is pretty oblique.

[Fmr. Gov. NickG]

When do we get to the testimony about falsifying the business records?

Well we have the testimony today that he allegedly knew the money being paid to Cohen was repayment of the Daniels payoff and not for legal services. So that.

Yeah, Cohen testified that Trump personally approved of the Weisselberg scheme to have Cohen deliberately submit monthly invoices labeled "legal services rendered pursuant to the [retainer] agreement" that was in fact never real, so Trump then holding up his end of that approval by subsequently signing the checks accompanied by those stapled Cohen invoices, as testified to by prior witnesses, would be what caused them to be entered into the records, thereby falsifying those records to make them look like there was a retainer that never was.

Thanks, I haven’t really followed the specifics of this testimony.  But it really seems like they should really be having Weisselberg testify that Trump personally directed him to falsify the records.  What you describe Cohen as saying is pretty oblique.

Weisselberg will likely take the Fifth if they call him.

Can’t they offer him immunity?

[Fmr. Gov. NickG]

Did Cohen’s testimony also establish the tax law violations that were supposed to be a basis for the felony upgrade? I also feel like I’ve heard almost nothing about this part of the case.

[Fmr. Gov. NickG]

So he would just be arguing that the falsifications can't be upgraded to felonies or that he didn't even break the law at all?

That he didn't violate FECA & so presumably therefore isn't guilty of the upgraded falsification to conceal a conspiracy to commit (nonexistent) FECA violations; I guess he could still be convicted of lesser-included misdemeanor business record falsification offenses, but I'll be surprised if this defense team willingly eats the imp(L)ication of asking for that instruction.

We've talked about this possibility b4 and I think its more likely than some may want to believe. A plea down to a misdemeanor won't carry the same weight as a felony conviction and if the prosecution agrees, that could lead to an early end of the trial (as soon as next week). And from the standpoint of the prosecution, this may be ideal because a misdemeanor as a lesser chance of being reversed on appeal.

I doubt there would be a plea. But if there was a plea, that wouldn’t be appealable at all, right? (Unless there was an assertion the plea was somehow coerced or there was new evidence.)

[Fmr. Gov. NickG]

Serious question: what does the defense’s case look like if they don’t call a single witness to the stand?

It sounds like they are calling expert witnesses, which seems like a pretty reasonable strategy to me.  If you can convince the jury that there is a reasonable interpretation of the law under which Trump isn’t guilty of the crime even if you accept all the prosecution’s facts, you don’t need to contest any of the prosecution’s facts.

[Fmr. Gov. NickG]

I completely buy the prosecution's factual case.

But the prosecution has done almost nothing to convince me that what Trump did constitutes a crime beyond a reasonable doubt as to the interpretation of the statutes and campaign finance regulations.

I understand that this is really not supposed to be something a lay jury is asked to decide.  But if I'm a juror and the law is as unclear as it seems to be in the case, and I've been given almost no information as to how this vagueness should be resolved, I'd have to feel it was my responsibility to acquit.

This is why I wish the prosecution had a least brought up adultery as a possible underlying crime to elevated the falsification of records to a felony.  Under this theory of the case, I think Trump is 100% guilty with no ambiguity in the law, and I would absolutely convict him.  But unfortunately the prosecution presented no evidence that Trump committed adultery in New York.