The Trump Trial Tribulations Thread

[malchior]

Mood: Laughing at George Will beclowning himself at WaPo. Published at 2:02 PM before the details came out.

Before the jerry-built case brought against Trump by Manhattan’s elected Democratic District Attorney Alvin Bragg collapses, as it likely will in a courtroom, an elected Democratic prosecutor in Georgia might weigh in. And a federal prosecutor is considering Trump’s possession of classified documents in Mar-a-Lago and his possible obstruction of the investigation thereof. Trump might think: The more the merrier. Martyrdom might sell.

In “Three Felonies a Day,” civil libertarian Harvey A. Silverglate’s 2009 book about how easy it is in our law-clotted society to be accused of a felony, he tells of a game some prosecutors play in private: For what crime could they have indicted, say, Mother Teresa? Scofflaws such as Trump spoil the game, but in the future there will be less obvious political targets, and somewhere an elected prosecutor — always an awful idea — with a constituency as red as Bragg’s is blue might be taking notes and making plans.

[Zaxxon]

After reading all that I definitely have this feeling that this was the time Trump got caught with his hand in the cookie jar after spending his whole life munching on cookies.

Innocent until proven guilty and all that, but... Absolutely no doubt.

[Daveman]

So is all comparable to charging Al Capone with income tax evasion?

[YellowKing]

Based on the pundits I listened to today, very similar to the way they brought down mob bosses. Get them on boring financial stuff that has so much historical precedence and is so well known that it leaves little wiggle room to squeak out of it.

[Alefroth]

Could a NY governor pardon him?

[Holman]

The most important thing is that this indictment has established a precedent that former presidents are not immune to prosecution.

Now the other investigations underway don't have to worry about that barrier.

[Pyperkub]

Based on the pundits I listened to today, very similar to the way they brought down mob bosses. Get them on boring financial stuff that has so much historical precedence and is so well known that it leaves little wiggle room to squeak out of it.

Also - it leaves a paper trail. The other stuff usually doesn't (you usually need a wire, an informant willing to wear one, etc.)

[Kurth]

Mood: Laughing at George Will beclowning himself at WaPo. Published at 2:02 PM before the details came out.

Before the jerry-built case brought against Trump by Manhattan’s elected Democratic District Attorney Alvin Bragg collapses, as it likely will in a courtroom, an elected Democratic prosecutor in Georgia might weigh in. And a federal prosecutor is considering Trump’s possession of classified documents in Mar-a-Lago and his possible obstruction of the investigation thereof. Trump might think: The more the merrier. Martyrdom might sell.

In “Three Felonies a Day,” civil libertarian Harvey A. Silverglate’s 2009 book about how easy it is in our law-clotted society to be accused of a felony, he tells of a game some prosecutors play in private: For what crime could they have indicted, say, Mother Teresa? Scofflaws such as Trump spoil the game, but in the future there will be less obvious political targets, and somewhere an elected prosecutor — always an awful idea — with a constituency as red as Bragg’s is blue might be taking notes and making plans.

Hold up. Setting aside the bluster about the case against Trump falling apart, I thought you shared concerns about what local elected prosecutors going after elected leaders or candidates from the opposing party. I didn't read the Will piece - I try not to read his stuff if possible - but isn't he really just echoing that concern here. At least, that's how I read the bolded part above.

[Octavious]

Oh look he gets free press on every single network. That worked out well in the previous election cycle.

[malchior]

Hold up. Setting aside the bluster about the case against Trump falling apart, I thought you shared concerns about what local elected prosecutors going after elected leaders or candidates from the opposing party. I didn't read the Will piece - I try not to read his stuff if possible - but isn't he really just echoing that concern here. At least, that's how I read the bolded part above.

I share the concern here in the abstract. Not so much in the real world we actually live in where DOJ essentially failed us over and over and invited this sequence of events.

I also however think his argument is fairly weak in general - it's mostly a litany of weak complaints that don't consider the risks in context. And in particular here to put a fine point on it, he "went to press on this" before the facts came out and made him look a bit silly.

[Unagi]

I was thinking the same thing.
Trump at this point had enjoyed a world where this stuff was totally undetected and not reviewed. His overreach here was because he had likely gotten away with numerous things like this in the past - and well - now there is at least some appetite to hold (specifically) Trump to the fire.

[Alefroth]

Oh look he gets free press on every single network. That worked out well in the previous election cycle.

He lost.

[Octavious]

I meant the original one.

[waitingtoconnect]

Did anyone hear his speech. Even with the first amendment he was flying very close to the Sun on rank libel there.

And given his threats to sue everyone he should know Americas libel laws well. https://www.mtsu.edu/first-amendment/po ... -to-flimsy

[Grifman]

I’m not a fan of prosecutors coming up with “novel” legal theories and unique takes on the law. Laws should be used as they were intended as written and understood. Otherwise you convict people of breaking laws that they may have not even understood they were breaking because of some novel application. How is that fair?

I guess we’ll see - we haven’t seen the evidence -maybe Bragg has a great case. But IMO, this is the weakest case against Trump. He is much more likely to be convicted for violating GA voter laws, the classified document affair, and his fake elector scheme. I wish this wasn’t the one that led.

[malchior]

I’m not a fan of prosecutors coming up with “novel” legal theories and unique takes on the law. Laws should be used as they were intended as written and understood. Otherwise you convict people of breaking laws that they may have not even understood they were breaking because of some novel application. How is that fair?

I guess we’ll see - we haven’t seen the evidence -maybe Bragg has a great case. But IMO, this is the weakest case against Trump. He is much more likely to be convicted for violating GA voter laws, the classified document affair, and his fake elector scheme. I wish this wasn’t the one that led.

IMO there has been a push to prejudge this case as weak. I suspect it is being driven from the usual wells of misinformation but that is just a hunch. Still I'm right there with you on wishing this wasn't first. But it is so we move on. Hopefully other folks will be right and other cases will wash in and we'll forget all this news cycle spun doubt.

In any case, I read this piece last night and thought it had flaws. The biggest problem is that it offers us an analysis that seems to overlook key context. For example she seem to have skipped Bragg's news conference. Except she didn't. She just got it all wrong like she didn't actually hear it first hand. She seems to have misanalysed the case that he laid out the multiple theories including the one that is probably the linchpin - the tax fraud angle which is not novel. Zarathud has talked about this in broad strokes here but there is some hefty pushback there to come in a moment.

Back to the word novel that she threw around liberally. It keeps repeating out there but we also have repeated analyses from NY law experts who say Bragg is trodding on solid ground. For example, an actual lawyer and actual former prosecutor is making an effort to dispel this novel talk head on. He also does something that Ruth Marcus was unable to do, to wit actually decompose the case legally and from direct experience.

First, a note about the Manhattan D.A.’s office that will prosecute this case: It is hardly a typical local cog in the judicial system. In fact, it is unique. Its jurisdiction is the financial capital of the world. That means the office routinely prosecutes complex white-collar cases with crime scenes that involve the likes of the BNP Paribas international banking scandal. Big cases involving powerful, high-profile individuals have been handled by the office for decades. That was proved most recently by the office’s conviction of the Trump Organization and the guilty plea of one of its top executives, Allen Weisselberg, on charges relating to an intricate yearslong tax fraud scheme.

The books and records counts laid out in the charging papers against Mr. Trump are the bread and butter of the D.A.’s office. Mr. Trump, who pleaded not guilty to all charges on Tuesday, is the 30th defendant to be indicted on false records charges by Mr. Bragg since he took office just over a year ago, with the D.A. bringing 151 counts under the statute so far. Indeed, the Trump Organization conviction and the Weisselberg plea included business falsification felonies.

...

While the particulars of Mr. Trump’s case are unique, his behavior is not. Candidates and others have often attempted to skirt the disclosure and dollar limit requirements of campaign finance regulations and falsified records to hide it. Contrary to the protestations of Mr. Trump and his allies, New York prosecutors regularly charge felony violations of the books and records statute — and win convictions — when the crimes covered up were campaign finance violations, resulting in false entries in business records to conceal criminal activity.

For example, the Rockland County D.A. convicted the executive Richard Brega for falsifying business records by misrepresenting the source of funds that he funneled into a campaign. The Oneida County D.A. charged a county political party chair, John Dote, with pilfering campaign funds and failing to properly account for them, resulting in conviction for felony falsification of business records (and second-degree grand larceny). The Brooklyn D.A. convicted Assemblyman Clarence Norman for soliciting illegal campaign contributions and for felony falsification of business records. And on and on, in New York and federally.

...

It’s also worth noting that Mr. Trump was a federal candidate, whereas the other New York cases involved state ones. But court after court across the country has recognized that state authorities can enforce state law in cases relating to federal candidates. Those courts have allowed state cases concerning federal campaign contributions under widely varied circumstances, including for fraudulently diverting funds from political action committees founded to support federal presidential campaigns, violating state law limits on corporate contributions to federal campaigns and transgressing state laws concerning donations to PACs that funded federal campaigns. Some of the examples involve criminal enforcement by state authorities, some civil, but the point is the same: They can act.

So Mr. Bragg’s bringing a state case concerning a federal campaign is hardly novel. In an abundance of caution, he not only alleges violations of state campaign finance law but also alleges federal violations. We believe that is permitted, given that the fraudulent books and records and other relevant statutes refer simply to covering up “another crime” or using “unlawful means” and do not specify whether they need be federal or state.

This approach is wise because to throw out the case, a judge would have to rule that Mr. Trump is covered by neither state nor federal campaign finance law. We think it is unlikely that the courts will embrace that Catch-22.

...

The indictment is therefore anything but political. If anything, the more political choice would have been not to indict when there is so much scrutiny. Mr. Bragg appears to have the backbone to avoid such considerations in charging decisions. Good for him — and for the rule of law.

[Victoria Raverna]

How come it is weak when the same case sent Michael Cohen to prison?

[malchior]

How come it is weak when the same case sent Michael Cohen to prison?

It probably isn't but there are a lot of folks who want to distort reality around this case or anything that reckons with how aberrative Trump is. Some are recoiling from all this perhaps out of denial about how far we've fallen. Some of it is pushed by Trump's narrative about being persecuted. That's why I'm personally wary about all this "novel" talk. It buys into the notion that he is being targeted for persecution when the opposite is the case. The system has avoided holding him accountable for so long. It's sort of the ultimate farce IMO.

[Kurth]

How come it is weak when the same case sent Michael Cohen to prison?

It probably isn't but there are a lot of folks who want to distort reality around this case or anything that reckons with how aberrative Trump is. Some are recoiling from all this perhaps out of denial about how far we've fallen. Some of it is pushed by Trump's narrative about being persecuted. That's why I'm personally wary about all this "novel" talk. It buys into the notion that he is being targeted for persecution when the opposite is the case. The system has avoided holding him accountable for so long. It's sort of the ultimate farce IMO.

There are many who believe Cohen plead guilty to something that wasn’t a crime in the first place.

In this piece in today’s NYT, David French writes:

What is the weakest part of the district attorney’s case against Trump?

The law. First, there is a very real question as to whether the relevant New York state election statutes are pre-empted by federal law. Under pre-emption doctrine, federal law essentially trumps state law when federal law conflicts with state law or when federal law occupies the field. When the federal government comprehensively regulates an area of law, courts will often apply only federal law and ignore state or local statutes. Thus, the state election statutes that constitute the other crimes that Bragg relies on may not apply to Trump.

Second, the relevant federal election law is unsettled, and Cohen’s guilty plea does not provide prosecutors with a true legal precedent to claim that the matter is decided. In 2018 a former member of the Federal Election Commission, Bradley A. Smith (a Republican), made the compelling argument, in a National Review article titled “Michael Cohen Pled Guilty to Something That Is Not a Crime,” that the Supreme Court would not be sympathetic to the claim that a hush-money payment was a campaign contribution for purposes of federal criminal law. “When faced with the vague, sweepingly broad ‘for the purpose of influencing any election’ language,” Smith argued, “the Supreme Court has consistently restricted its reach to brightly defined rules.”

I disagreed with Smith at the time, arguing that the relevant law did encompass Cohen’s crimes, but I freely acknowledge that there is no binding legal precedent that supported either Smith’s or my arguments. Smith could well be right, and I could well be wrong. Our arguments depended more on legal predictions than controlling precedent. Indeed, the uncertain scope of the underlying federal election law claims is one factor that renders Bragg’s theory of the case largely untested.

Also, I’d just note that it’s one thing to prejudge a case before you understand the charges and the facts. But once you’ve seen the charges and you know the applicable law, it becomes much easier to offer valuable analysis. This isn’t a case where the facts are really all that much in dispute: The question is how the law should be applied to those facts. If this were a civil case in federal court, it would be challenged out of the gate with a 12(b)(6) motion to dismiss. That’s a motion brought by the defense that argues, accepting all facts as presented by the plaintiff, the plaintiff’s complaint still doesn’t state a legally cognizable claim. When a 12(b)(6) motion fails, the defendant (or plaintiff) has another shot later in the case to move for summary judgment, which is a different standard, but essentially says, if we take all the facts that are not in dispute, a certain outcome is dictated as a matter of law.

Anyway, just pointing out that idea agree with French: This case against Trump isn’t really going to be about the facts. We’ve all knows what happened for a long time. Bragg’s entire statement of facts was, for the most part, a rehashing of the timeline that has been public knowledge for quite some time (as set out here by Just Security).

This case is about the law, and the law here is far from clear.

[malchior]

This case is about the law, and the law here is far from clear.

I totally agree and what I've been getting at is that seems to really be by design. It is hard for me not to see the law as it currently exists as a system of control that lets the powerful run amok and imprisons unpowerful Americans at the highest rate in the world. I'll quote some Bertrand Russell here from the History of Western Civilization here.

Civilization checks impulse not only through forethought, which is a self-administered check, but also through law, custom, and religion. This check it inherits from barbarism, but it makes it less instinctive and more systematic. Certain acts are labelled criminal, and are punished, certain others, though not punished by law, are labeled wicked, and expose those who are guilty of them to social disapproval.

It sure as shit feels like the law when it comes to people like Trump is designed to bucket them through tons of exceptions and checks into the wicked category and put much of the conduct that negatively impacts the powerful as possible in the criminal bucket. I don't know what to do with this but it sure feels like a lot of elites are trying to make excuses for the rare attempt that we hold one of them accountable for conduct that'd get regular people thrown in prison without a doubt.

[Jaymon]

The first nail was always going to be the hardest. If the TFG was brought to trial for anything said or tweeted, then the trial would devolve into lawyers arguing about things like opinion, and meaning of word, and "what would a reasonable person assume". So instead, this is about money. Money with a discovered paper trail, and some clear well established rules showing crime has been committed with that money.

Sure sure, lawyers are still gonna argue, especially about state vs federal and whatnot. thats their freaking job. But once the first nail is in, once the first blood is drawn, everything else is going to pile on quickly.

[Blackhawk]

We've said before that Trump could shoot somebody in the middle of the street and get away with it.

There is no charge that could have been brought against Trump that half of the country wouldn't have rationalized or dismissed outright as unjustified, and those rationalizations are going to muddy the waters for everyone else. Had this been the head of a medium-sized company instead of Trump, nobody would have batted an eye at the charges.

[Jaymann]

How many people had MTG praising Nelson Mandela on their bingo card?

[GreenGoo]

How many people had MTG praising Nelson Mandela on their bingo card?

Now ask her who he is (was, I suppose) and why she knows his name.

[LawBeefaroni]

How many people had MTG praising Nelson Mandela on their bingo card?

Now ask her who he is (was, I suppose) and why she knows his name.

Admiral Nelson Mandela defeated Hitler at Waterloo. Duh.

[ImLawBoy]

How many people had MTG praising Nelson Mandela on their bingo card?

That's almost a gimme. They love making comparisons to civil rights figures and heroes without any context. It's just like they love quoting select parts of MLK's "I Have a Dream" speech without considering literally anything else he ever did or said.

[GreenGoo]

How many people had MTG praising Nelson Mandela on their bingo card?

Now ask her who he is (was, I suppose) and why she knows his name.

Admiral Nelson Mandela defeated Hitler at Waterloo. Duh.

Omg, he was in Abba? I love those norswegians.

[Kurth]

I don't know what to do with this but it sure feels like a lot of elites are trying to make excuses for the rare attempt that we hold one of them accountable for conduct that'd get regular people thrown in prison without a doubt.

I don't really follow this. "Regular people" aren't charged with crimes like this because they aren't running a campaign for president while paying hundreds of thousands of dollars to shady lawyers to arrange hush money payments to porn stars and playmates they had sex with. "Regular people" don't get thrown in prison for that conduct because it's not conduct "regular people" ever engage in, right?

Also, if Trump wasn't Trump -- or some other famous political candidate or incredibly rich corporate titan -- none of this would be a thing. If your "regular person'" had an affair and tried to keep it quiet by paying off the person he had the affair with, no one would give a shit. And if said "regular person" hired a lawyer to arrange the hush money payment and draft an agreement papering the whole thing, and that lawyer was willing to front the payment and then invoice you for it as part of his or her legal services, no one would give a shit.

Who are the "regular people" that are without a doubt getting thrown in prison for this type of conduct?

It really seems the opposite to me: This is the type of conduct that you only get nailed for if you've put a big enough target on your back.

[malchior]

I don't know what to do with this but it sure feels like a lot of elites are trying to make excuses for the rare attempt that we hold one of them accountable for conduct that'd get regular people thrown in prison without a doubt.

I don't really follow this. "Regular people" aren't charged with crimes like this because they aren't running a campaign for president while paying hundreds of thousands of dollars to shady lawyers to arrange hush money payments to porn stars and playmates they had sex with. "Regular people" don't get thrown in prison for that conduct because it's not conduct "regular people" ever engage in, right?

I'm talking in the general case. What I'm talking about is a bias to skeptically frame all conduct by powerful people as 'wicked' or better. In other words, they get a benefit of the doubt from everyone including credulous centrists who want to appear to be "fair". There is a corollary here though. Several folks have pointed over in depth that NY has prosecuted similar falsification records crimes that don't exactly match up with this but close enough to argue this isn't out of the norm, they do charge regular people for it all the time, and it isn't weak.

Also, if Trump wasn't Trump -- or some other famous political candidate or incredibly rich corporate titan -- none of this would be a thing. If your "regular person'" had an affair and tried to keep it quiet by paying off the person he had the affair with, no one would give a shit. And if said "regular person" hired a lawyer to arrange the hush money payment and draft an agreement papering the whole thing, and that lawyer was willing to front the payment and then invoice you for it as part of his or her legal services, no one would give a shit.

Ok this is where you lose me on this. Do you actually think that summation accurately describes this? This is exactly what I'm talking about when I see people trying to frame this as wicked instead of a crime. You are grossly mischaracterizing the facts in that direction. This isn't a simple disagreement on risks/impacts/opinion. What you just wrote there is not accurate.

[LawBeefaroni]

If your "regular person'" had an affair and tried to keep it quiet by paying off the person he had the affair with, no one would give a shit. And if said "regular person" hired a lawyer to arrange the hush money payment and draft an agreement papering the whole thing, and that lawyer was willing to front the payment and then invoice you for it as part of his or her legal services, no one would give a shit.

That's not what Trump was indicted or charged for.

[Pyperkub]

Mr Fed writes in Rolling Stone:

If you wrote a list of American political virtues, “patient” would not figure prominently. So when we learned last week that Manhattan District Attorney Alvin Bragg had secured a grand jury indictment of former President and prominent Truth Social poster Donald Trump, nobody wanted to wait before jumping to conclusions. Speculation on the contents, strategy, and strengths of the unseen indictment was rife. Some legal commentators urged patience. Wait, we said. Wait to read the indictment. Then we’ll know so much more about the District Attorney’s theory and strategy....

... What we don’t know — at least with the precision necessary to evaluate the case’s strengths and weaknesses — is the District Attorney’s specific legal theory of how Trump was defrauding anyone and how he was promoting or concealing a crime by doing so. That may sound like law pedantry, but it’s crucial to understanding the case.

Commentators disagree, but some argue that Bragg will have to prove that Trump conned someone out of money or property, or at least impeded the government’s functions, to prove he falsified his books with intent to defraud under the statute. We don’t know Bragg’s theory of how he’d meet that burden, because neither the indictment nor the Statement of Facts spells it out.

Moreover, different crimes have different intent and knowledge requirements. Is the District Attorney arguing — as Bragg and his Statement of Facts imply — that Trump cooked the books to hide that he was committing federal campaign finance violations, because the payoff to Stormy Daniels was a prohibited contribution to his own campaign? That’s a heavy lift: Campaign finance violations generally require the government to prove that the defendant acted “knowingly and willfully,” meaning that the defendant knew their action was illegal. (As a rule, crimes mostly committed by rich people have daunting intent requirements, crimes mostly committed by poor people are easy to prove.) But we don’t know their theory because they don’t spell it out.

[malchior]

Good piece. I should get past the idea that it is surprising when Rolling Stone performs better at "journalism" -- specifically news analysis here -- than the big players.

[Holman]

How many people had MTG praising Nelson Mandela on their bingo card?

That's almost a gimme. They love making comparisons to civil rights figures and heroes without any context. It's just like they love quoting select parts of MLK's "I Have a Dream" speech without considering literally anything else he ever did or said.

I remember flipping through my dad's issues of National Review in the mid/late 1980s. Conservative doctrine was that Mandela was a terrorist and a Soviet agent and that the Apartheid regime deserved vigorous support.

[Kurth]

If your "regular person'" had an affair and tried to keep it quiet by paying off the person he had the affair with, no one would give a shit. And if said "regular person" hired a lawyer to arrange the hush money payment and draft an agreement papering the whole thing, and that lawyer was willing to front the payment and then invoice you for it as part of his or her legal services, no one would give a shit.

That's not what Trump was indicted or charged for.

Really? Responding to both you and malchior, it seems pretty close to me, or, at least, it's the closest "regular people" analog I could come up with to the underlying conduct on which the charges against Trump are based. In terms of just the conduct -- not the legal theories that may apply -- what is different? The false dates for when services were rendered? The fact that there was no retainer agreement in place? These seem like very minor points.

[Grifman]

[Jaymann]

[Grifman]

If your "regular person'" had an affair and tried to keep it quiet by paying off the person he had the affair with, no one would give a shit. And if said "regular person" hired a lawyer to arrange the hush money payment and draft an agreement papering the whole thing, and that lawyer was willing to front the payment and then invoice you for it as part of his or her legal services, no one would give a shit.

That's not what Trump was indicted or charged for.

Really? Responding to both you and malchior, it seems pretty close to me, or, at least, it's the closest "regular people" analog I could come up with to the underlying conduct on which the charges against Trump are based. In terms of just the conduct -- not the legal theories that may apply -- what is different? The false dates for when services were rendered? The fact that there was no retainer agreement in place? These seem like very minor points.

The problem is the “your average guy” scenario doesn’t hold.

The invoicing was recorded on the official books of the Trump Organization, not Trump’s personal checking account. Personally you can do whatever you want, but a business can’t do that. It can’t record a payoff as “legal expenses”. That’s a fraudulent accounting entry.

You also can’t ignore that Trump was running for president and this is potentially an illegal campaign contribution to the extent they made the payment to prevent this from hurting his candidacy.

Lastly, they reimbursed Cohen twice the amount he paid Daniels to cover state and federal taxes on the “legal fees” he got. This is potentially tax fraud.

So on these three bases your comparison to some “average guy” paying off his mistress falls apart. This is not “your average” guy doing “average” things.

[Kurth]

If your "regular person'" had an affair and tried to keep it quiet by paying off the person he had the affair with, no one would give a shit. And if said "regular person" hired a lawyer to arrange the hush money payment and draft an agreement papering the whole thing, and that lawyer was willing to front the payment and then invoice you for it as part of his or her legal services, no one would give a shit.

That's not what Trump was indicted or charged for.

Really? Responding to both you and malchior, it seems pretty close to me, or, at least, it's the closest "regular people" analog I could come up with to the underlying conduct on which the charges against Trump are based. In terms of just the conduct -- not the legal theories that may apply -- what is different? The false dates for when services were rendered? The fact that there was no retainer agreement in place? These seem like very minor points.

The problem is the “your average guy” scenario doesn’t hold.

The invoicing was recorded on the official books of the Trump Organization, not Trump’s personal checking account. Personally you can do whatever you want, but a business can’t do that. It can’t record a payoff as “legal expenses”. That’s a fraudulent accounting entry.

First, I'm not understanding your distinction between a person and a business. If a person can do something, generally, a privately held business can do it, too, right? It's not like we're talking about a publicly held company with fiduciary duties.

Second, I'm not sure I buy the distinction between a "payoff" and "legal expenses." Don't get me wrong. This shit is shady as all hell. But lawyers do shady stuff all the time and that shady stuff can still fall under the very general label, "legal services." At a basic level, this situation involved Trump wanting to secure rights -- catch and kill -- a damaging story about him. Who are you going to hire to negotiate, paper and coordinate that deal? Probably a lawyer. So I'm really not sure the characterization of Cohen's services as "legal expenses" is, in fact, a fraudulent accounting entry (although, as noted, the specified dates for services rendered and the form of the fee agreement certainly seem to be false).

Third, my understanding is that the first two checks were on the Trump Org books, but the remaining 10 were all paid by Trump personally from his personal bank account (see para. 33 of indictment Statement of Facts).

You also can’t ignore that Trump was running for president and this is potentially an illegal campaign contribution to the extent they made the payment to prevent this from hurting his candidacy.

But then he wouldn't really be a "regular person," which would kind of negate the whole point of the response.

Lastly, they reimbursed Cohen twice the amount he paid Daniels to cover state and federal taxes on the “legal fees” he got. This is potentially tax fraud.

I'm no tax expert -- I finally gave up doing my own this year because TurboTax is not my friend -- but why would this be tax fraud? Can't I gross up someone's compensation to cover their tax exposure? This seems like something that people should be able to do and the government would take no interest in, so long as the person receiving the compensation actually pays their taxes.

So on these three bases your comparison to some “average guy” paying off his mistress falls apart. This is not “your average” guy doing “average” things.

Not fair: The whole "average guy" thing was just a response to malchior. Not my idea. In fact, my whole point was, this is not some average guy doing average things that your average guy would typically get thrown in prison for:

I don't know what to do with this but it sure feels like a lot of elites are trying to make excuses for the rare attempt that we hold one of them accountable for conduct that'd get regular people thrown in prison without a doubt.

I don't really follow this. "Regular people" aren't charged with crimes like this because they aren't running a campaign for president while paying hundreds of thousands of dollars to shady lawyers to arrange hush money payments to porn stars and playmates they had sex with. "Regular people" don't get thrown in prison for that conduct because it's not conduct "regular people" ever engage in, right?

[malchior]

First, I'm not understanding your distinction between a person and a business. If a person can do something, generally, a privately held business can do it, too, right? It's not like we're talking about a publicly held company with fiduciary duties.

Not in NY (also not in NJ). That is why Falsification of Business Records is such a common charge in NY state. We have tighter controls for business expenses and financial controls. In any case, I think this is barking up the wrong tree. Almost no one is disputing that they falsified the records. The real question is how they are being bumped up to felonies. That's the mystery meat and the risky part of the case.

Second, I'm not sure I buy the distinction between a "payoff" and "legal expenses." Don't get me wrong. This shit is shady as all hell. But lawyers do shady stuff all the time and that shady stuff can still fall under the very general label, "legal services." At a basic level, this situation involved Trump wanting to secure rights -- catch and kill -- a damaging story about him. Who are you going to hire to negotiate, paper and coordinate that deal? Probably a lawyer. So I'm really not sure the characterization of Cohen's services as "legal expenses" is, in fact, a fraudulent accounting entry (although, as noted, the specified dates for services rendered and the form of the fee agreement certainly seem to be false).

Again apparently not in NY. Especially since legal services in NY REQUIRE letters of engagement or written retainer agreements (though it is unclear if Cohen was technically an employee of the Trump organization which could work around this issue). However, the Statement of Facts makes a point early on (para. 3 IIRC) that no retainer agreement was in place. That is likely the basis of the charges related to some of the payments to Cohen. It'd also call into question the payments to Cohen. You could argue this is more a problem for Cohen than Trump but it cuts against it being a legitimate legal expense.

I'm no tax expert -- I finally gave up doing my own this year because TurboTax is not my friend -- but why would this be tax fraud? Can't I gross up someone's compensation to cover their tax exposure? This seems like something that people should be able to do and the government would take no interest in, so long as the person receiving the compensation actually pays their taxes.

The problem here is potentially that Trump Org is claiming 'legal expenses' without the required retainer agreement, grossing up some amount, and then deducting them from their general ledger which may illegally reduce the amount of tax paid. In other words, that could be straight up tax fraud. Bragg intimated that in his press conference. I'm cribbing a little off Zarathud's comment earlier in the thread (requoted below).

I don't think it's crazy for a DA to lay out the following facts to a jury and ask them to determine if they believe it is a crime (assuming the question survives to make it to the jury).

• Cohen pays a settlement out of his personal HELOC

• They have contemporaneous discussions about attempting to delay the payments until after the election (tying it all explicitly to the election)

• The Trump Organization CFO and Cohen agree to gross up the reimbursement and throw on a bonus paying it out of the Trump Organization

This isn't just unusual or about secrecy. It looks, sounds, and smells criminal.

Trump didn’t fund it. Cohen paid it. Lawyers are not in the business of using our funds to pay client settlements.

Trump acted to hide it from reporters during the election. Probably the only reason Cohen was repaid eventually was because it was so bad if Cohen wasn’t repaid. This story would have sunk any politician other than Trump.

Trying to manufacture a tax deduction from a settlement is fraud. Everything about how Cohen billed it shows and intent to defraud. This may not be the worst offense, but it is fraud for business and tax purposes. It makes a mockery of campaign finance restrictions.

[waitingtoconnect]

I think this whole situation is extraordinary. How Trump can think he is above the law is just plain arrogance.

The case against him is very strong. And given Cohen pled guilty I think that Trump doesn't have a leg to stand on.

I doubt any judge is going to imprison him in a real prison though. They'll confine him to Trump Tower or something like that.