NY: Convicted Felon Donald Trump!

[soundchaser]

Trump has posted on Truth Social about the judge following the gag order hearing. I know he's a dingus, but I'm always surprised at how big a dingus.

[emailking]

No ruling on the gag order yet. Pecker is back on the stand.

[soundchaser]

No ruling on the gag order yet. Pecker is back on the stand.

I assume we're not getting one until after this current session.

[brucejoel99]

https://twitter.com/bradmossesq/status/1782801591864615252https://twitter.com/bradmossesq/status/1782802856862462091https://twitter.com/katiephang/status/1782802892346564745

[Gass3268]

https://twitter.com/klasfeldreports/status/1782802264656150882?s=46

[brucejoel99]

https://twitter.com/KatiePhang/status/1782806307063701927https://twitter.com/lawofruby/status/1782812389517218012

[wbrocks67]

Seems to be going well for Trump's lawyer today!

https://twitter.com/kaitlancollins/status/1782781536305111113

[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.

[President Johnson]

Seems to be going well for Trump's lawyer today!

https://twitter.com/kaitlancollins/status/1782781536305111113

Well, that would assume they ever had any credibility to begin with.

[emailking]

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.

[brucejoel99]

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!

[mjba257]

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!

You leave out the part that Cohen was also convicted of perjury (which impeaches his credibility) and fraud regarding a taxi medallion scheme which made up the bulk of his sentence. If I'm not mistaken, the hush money only constituted 6 months of his sentence.

[brucejoel99]

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!

You leave out the part that Cohen was also convicted of perjury (which impeaches his credibility) and fraud regarding a taxi medallion scheme which made up the bulk of his sentence. If I'm not mistaken, the hush money only constituted 6 months of his sentence.

"& concealing"

[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.

[emailking]

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!

You leave out the part that Cohen was also convicted of perjury (which impeaches his credibility)

You leave out that the perjury for which he was convicted was done at Trump's request.

[emailking]

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?

No I'm not suggesting that. Look at what I posted last night.

[Redban]

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/

[Chancellor Tanterterg]

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 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/

I believe the Court already ruled in the State’s favor on this issue.  Reasonable arguments can certainly be made either way, but hardly an abuse of discretion (not by a long shot).

[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.

[Torie]

Blanche: "President Trump is being very careful to comply" with the gag order.

Merchan, sharply: "Mr. Blanche, you are losing all credibility."

Ouch. If God loves me, Trump will totally lose it, and start ranting.

[Landslide Lyndon]

You all missed the most important part of today's testimony.

https://twitter.com/Acyn/status/1782878474086109219

[brucejoel99]

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 stature, it's not a crime to influence an election unless you do so by committing some other crime.

Conspiring to violate FECA by having Cohen & AMI make their unlawful individual & corporate in-kind campaign contributions:

DA's 175.10/17-152 theory = T[rump] filed false business records w/ intent to conceal 17-152 conspiracy to use "unlawful means" to help him win election. In other words, conspiracy to violate FECA by making hush-money payments.

Can't conspire to commit a legal act. If hush-money payments were legal = no 17-152 conspiracy = no 175.10 theory based on concealing 17-152 conspiracy = N[ot] G[uilty]. Hush-money payments must = FECA crime for DA's 175.10/17-152 theory to be viable.

Read Heading 2. "Other Crime" in Merchan's 2-15-24 ruling: "The People allege that Defendant VIOLATED federal election laws because the payoffs to both McDougal and Daniels VIOLATED FECA's restrictions..." DA must establish this allegation B[eyond] A R[easonable] D[oubt].

"Under the second theory, the People allege... [Trump used] 'unlawful means'... by VIOLATING FECA through the unlawful... contributions by Cohen..." If DA can't prove B[eyond] A R[easonable] D[oubt] hush-money payments were criminal under FECA = N[ot] G[uilty] on all 175.10 felonies.

[Replying to: @alegalnerd your point is there really is no daylight between theory 1 and theory 2 -- theory 1 still requires DA to prove theory 2 (FECA violation) as unlawful means by which violated 17-152, right?]

Exactly! After a very careful re-read of Merchan's February 15, 2024 opinion, I have no doubt that if the DA cannot establish that the hush-money payments were, as a matter of law, FECA crimes, Trump must be acquitted of the 175.10 felonies. So, are we going to see a battle of the experts -- T[rump]'s expert testifying, in substance, that hush-money payments aren't FECA crimes vs. DA's expert testifying that hush-money payments are FECA crimes? Neither expert can testify to the ultimate legal conclusion -- FECA crime or no FECA crime. But that will be the upshot of any such testimony. Thus far, I haven't found any authority that supports the conclusion that hush-money payments/NDAs are (or aren't) criminal under FECA... Cohen's plea & the FEC opinions re: Pecker are inadmissible as substantive evidence against T[rump] to establish anything including that hush-money payments = FECA crimes. And note the reference to knowledge: Can the DA establish that T[rump] knew the hush-money payments were FECA crimes? … DA is clearly entitled to present evidence to establish the "facts" described in the (inadmissible) FEC opinions in order to try and establish that the hush-money payments = FECA crimes. Merchan is also going to have to draft a jury instruction setting forth the elements of the alleged FECA crimes… But if DA can prove the hush-$ payments = FECA crimes = very likely T[rump] will be convicted of the felony 175.10 charges. Establishing that T[rump] intended on committing FECA crimes = likely satisfies the intent to defraud element vis-a-vis intent to interfere w/ lawful FEC function.

[Replying to: You think the DA can prove it?]

Yes.

You all missed the most important part of today's testimony.

https://twitter.com/Acyn/status/1782878474086109219

https://twitter.com/emptywheel/status/1782888440347902167https://twitter.com/BradMossEsq/status/1782890197358637107

[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?

[brucejoel99]

https://twitter.com/nitramanah/status/1782682446040854706https://twitter.com/kreplachbro/status/1782596378776002791

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 A360 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 A360 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's argument 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 in 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.