The Trump Trial Tribulations Thread

[Kurth]

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 think you're glossing over the fact that a retainer agreement is just one, specific form of fee arrangement. It's not even the form of fee arrangement used in most practices - or, I should say, not the practices I'm familiar with (namely, corporate civil litigation).

A retainer agreement involves paying a lawyer a specified amount of money up front to retain their services and availability, either for general legal services or for legal services of a specific scope. The lawyer then either holds that money as a deposit or charges against it as the representation goes forward.

But the agreement that governs most attorney-client relationships isn't a retainer agreement. It's usually just a simple (or not) engagement letter where the attorney and client formally set forth the attorney client representation. Moreover, lots of people get the two mixed up and refer to one as the other. But they're different things.

And we haven't even talked about the situation -- which I believe is more applicable here -- where a lawyer is in-house counsel. As far as I know, there's no requirement that there be an engagement letter or retainer agreement between an in-house lawyer and the client because the lawyer and the client are one and the same and the relationship is set forth in the employment agreement itself. And, I'm assuming that's the case here, where Cohen held the titles, "Executive Vice President, Trump Organization" and "Special Counsel" to Trump, from 2007 through 2017.

And all of this really misses the point. If Bragg is trying to make the case that the falsification of business records is based on labeling the payments to Cohen "for legal services," the question is whether or not Cohen was acting as a lawyer and performing legal services on behalf of the Trump Org or Trump himself when he was paying off Stormy. As I've said previously, I think a case can be made that negotiating the payout and papering the deal is absolutely a legal service.

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.

Again, the tax stuff is unclear to me. I don't know why it's tax fraud to pay someone extra to cover their tax exposure, but maybe I'm missing the important part. But, again, if there's a tax fraud charge and it relies on making the case that Trump's payments to Cohen weren't actually for legal services, I have a hard time with that argument based on what I read in the statement of facts.

Also, just to reiterate, it definitely looks like the payment plan they cooked up had Cohen submitting invoices that falsely specified the time period in which he performed the legal work. It also looks like they referenced a "retainer agreement" when none existed. But getting the dates wrong and calling the fee arrangement by the wrong name seems like very small ball.

[Kurth]

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.

I agree that all this stuff is extremely shady. And it certainly feels criminal. I'm just not sure it qualifies as a crime. Again, it may seem like I am, but I'm really not faulting Bragg for bringing the case. I just don't think it's particularly strong, and I'll be really disappointed if Trump is able to wriggle out of it and claim a victory.

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.

Agreed that your typical, upstanding lawyer is not in the business of fronting settlement payments on behalf of clients. That said, (1) I don't think anyone ever mistook Cohen for an upstanding lawyer; and (2) I don't think it's actually an ethical breach.

Maybe the tax thing is the silver bullet here. Again, I'm no tax expert, so if you say it's fraudulent to "manufacture a tax deduction from a settlement," I'm not in a position to argue otherwise. But I'm not sure how it's all that different from the typical legal bills I see that include fees for legal services and reimbursement of costs (meals, Fed Ex, transportation, hotels, etc.) that lawyers typically front and then pass on to their client as a cost.

[Zarathud]

Paying Cohen to negotiate a deal, that could be legal services. An engagement letter saying what he’s doing and how he gets paid would make that clear. A retainer agreement saying he’s on call for X amount of legal work covering Y issues would also be clear. That’s NOT WHAT HAPPENED.

Trump hired Cohen to “fix” a legal problem. Cohen paid with his own funds — not a loan or advance of incidental expenses — so Trump could lie and say “I never paid that woman.” Only afterwards did they change the deal so Cohen would get paid, and extra, so Trump could hide the payoff AND claim tax deductions as a “business expense.” That’s where a misdemeanor becomes a felony according to the indictments. And that’s going to make sense when the prosecution tells it to a jury.

Trump could have simply written a check to Stormy with his own money. Not a crime.

Trump could have paid Cohen for the legal part, then paid Stormy with company money and treated as a distribution to Trump and claimed the income and only the legal fees on his taxes. Not a crime.

But they instead tried to manufacture a business expense for taxes and hide that it was for the election. Definitely altering business records — going retroactive on documentation is very problematic and reputable lawyers don’t do it because they know it can lead to jail.

This is why Trump’s tax returns should have been audited before and during his Presidency. But IMO Trump covered up and buried the audit. That would be another crime — and the cover ups are worse than the underlying actions because it’s an abuse of power and not just dishonest. If the news was smart, they’d find the IRS agents able to tell the story of Trump’s audits. That’s where you break out the Kriminal Sopinas.

[Kraken]

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.

I'm way out of my depth and will defer to smarter opinions about his culpability. But this case strikes me as being the jaywalking of white collar crime. Even if he's convicted he won't get but a slap on the wrist. I look forward to further indictments for more serious crimes.

[malchior]

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 think you're glossing over the fact that a retainer agreement is just one, specific form of fee arrangement. It's not even the form of fee arrangement used in most practices - or, I should say, not the practices I'm familiar with (namely, corporate civil litigation).

A retainer agreement involves paying a lawyer a specified amount of money up front to retain their services and availability, either for general legal services or for legal services of a specific scope. The lawyer then either holds that money as a deposit or charges against it as the representation goes forward.

But the agreement that governs most attorney-client relationships isn't a retainer agreement. It's usually just a simple (or not) engagement letter where the attorney and client formally set forth the attorney client representation. Moreover, lots of people get the two mixed up and refer to one as the other. But they're different things.

And we haven't even talked about the situation -- which I believe is more applicable here -- where a lawyer is in-house counsel. As far as I know, there's no requirement that there be an engagement letter or retainer agreement between an in-house lawyer and the client because the lawyer and the client are one and the same and the relationship is set forth in the employment agreement itself. And, I'm assuming that's the case here, where Cohen held the titles, "Executive Vice President, Trump Organization" and "Special Counsel" to Trump, from 2007 through 2017.

FWIW I don't think I'm glossing over any facts about the necessary agreements. After all I explicitly linked to the NY requirements in black and white. I was clued to those requirements because my BIL is a practicing attorney in NYC and said that was unusual. I think I'm on solid ground there. I also explicitly considered that Cohen might be technically have been a Trump employee.

And all of this really misses the point. If Bragg is trying to make the case that the falsification of business records is based on labeling the payments to Cohen "for legal services," the question is whether or not Cohen was acting as a lawyer and performing legal services on behalf of the Trump Org or Trump himself when he was paying off Stormy. As I've said previously, I think a case can be made that negotiating the payout and papering the deal is absolutely a legal service.

I don't disagree on those possibilities but it isn't crazy to think the indictment calls out the lack of an agreement (or an analogue such as employment) for a purpose. I am assuming it is material to the case because that makes the most sense. Otherwise, there is no reason to call it out. On top Bragg said so at the press conference. Piling on we had Cohen's lawyer publicly stating Cohen had provided a paper trail of evidence to corroborate the crimes.

Again, the tax stuff is unclear to me. I don't know why it's tax fraud to pay someone extra to cover their tax exposure, but maybe I'm missing the important part. But, again, if there's a tax fraud charge and it relies on making the case that Trump's payments to Cohen weren't actually for legal services, I have a hard time with that argument based on what I read in the statement of facts.

Beyond Bragg making a statement saying there was potential tax fraud we don't know any of this in enough detail to really get an idea how solid it is. To Fed's point in Rolling Stone, Bragg hasn't explained it to us so we're left with guesswork at this point.

Also, just to reiterate, it definitely looks like the payment plan they cooked up had Cohen submitting invoices that falsely specified the time period in which he performed the legal work. It also looks like they referenced a "retainer agreement" when none existed. But getting the dates wrong and calling the fee arrangement by the wrong name seems like very small ball.

Maybe it is all small ball but that seems pretty unlikely. I think you're just on the wrong track here. Mostly because I haven't seen much (really any) argumentation in this direction by any of the many analyses. Again what I generally see is some level of concern or doubt about the second crime that bumps it up to a felony. That's where all the expert focus is. I'm not saying you're wrong but it does strike me that you seem to be pulling at the leg of the case no one seems to be concerned about.

[Kurth]

Paying Cohen to negotiate a deal, that could be legal services. An engagement letter saying what he’s doing and how he gets paid would make that clear. A retainer agreement saying he’s on call for X amount of legal work covering Y issues would also be clear. That’s NOT WHAT HAPPENED.

Trump hired Cohen to “fix” a legal problem. Cohen paid with his own funds — not a loan or advance of incidental expenses — so Trump could lie and say “I never paid that woman.” Only afterwards did they change the deal so Cohen would get paid, and extra, so Trump could hide the payoff AND claim tax deductions as a “business expense.” That’s where a misdemeanor becomes a felony according to the indictments. And that’s going to make sense when the prosecution tells it to a jury.

When did Trump hire Cohen? My understanding was that he held the title VP and Special Counsel to Trump from 2007 through 2017. I thought Cohen was employed by Trump (and the Trump Organization's, to the extent anyone respected the distinction between the two) long before any of the Stormy Daniels payoff activity took place. Cohen wasn't some random shady lawyer Trump plucked off the street to do this deal: Cohen had been Trump's shady lawyer for well over a decade before the 2016 Stormy Daniels stuff.

Also, I thought Cohen was paid extra - above the $130K settlement - as a bonus payment for his legal services, reimbursement for some costs, and then a gross up so that Cohen could cover the taxes on the additional payment. I'm not trying to be obtuse, but I still don't understand why that allowed Trump to claim a tax deduction he wouldn't normally be entitled to, but I guess that will come to light at some point if tax fraud is the felony hook here. To your point, it sure would be nice if Trump had been forced to release his tax returns so we could all see what deductions he claimed!

[Kurth]

Also, just to reiterate, it definitely looks like the payment plan they cooked up had Cohen submitting invoices that falsely specified the time period in which he performed the legal work. It also looks like they referenced a "retainer agreement" when none existed. But getting the dates wrong and calling the fee arrangement by the wrong name seems like very small ball.

Maybe it is all small ball but that seems pretty unlikely. I think you're just on the wrong track here. Mostly because I haven't seen much (really any) argumentation in this direction by any of the many analyses. Again what I generally see is some level of concern or doubt about the second crime that bumps it up to a felony. That's where all the expert focus is. I'm not saying you're wrong but it does strike me that you seem to be pulling at the leg of the case no one seems to be concerned about.

Yeah, and I could be full of shit for all I know. Would not be the first time and will certainly not be the last. But it feels like there are a lot of folks focussing on the second crime that bumps it up to a felony because Cohen already pleaded guilty to the first crime in connection with the campaign finance violation. But I'm not really sure Cohen's guilty plea nails much down. From the release regarding the Cohen guilty plea:

Throughout 2017, COHEN sent to one or more representatives of the Company monthly invoices, which stated, “Pursuant to the retainer agreement, kindly remit payment for services rendered for” the relevant month in 2017, and sought $35,000 per month. The Company accounted for these payments as legal expenses. In truth and in fact, there was no such retainer agreement, and the monthly invoices COHEN submitted were not in connection with any legal services he had provided in 2017.

The part about "no such retainer agreement" and the bit at the end about the invoices "not in connection legal services he had provided in 2017" seem to be doing some heavy lifting.

I'm also fairly certain - although criminal law is not my thing - that Cohen's guilty plea doesn't establish anything in the case against Trump. The DA is going to have to prove every element of his case, and while he can rely on Cohen's testimony, it doesn't take a criminal defense attorney to see that Cohen is not exactly what you'd call a problem-free witness.

[malchior]

The comments here are ... savage. Where French talked about the real legal risks, Eisen wrote about the strength of the underlying framework, we have Chait charged in to yell a barely uninformed opinion really loudly.

No one is above the law.” If you have opened a newspaper or glimpsed at CNN, you have heard a Democratic official recite this truism with regard to the Manhattan district attorney’s indictment of Donald Trump. The political value of this slogan is that it accurately captures Trump’s maddening ability to defy the law for decades on end while suggesting that his immunity is coming to a just and proper end.

But as a defense of the indictment, “no one is above the law” is not remotely adequate. It implicitly places the law itself beyond questioning. The uncomfortable reality is that, while Trump may be a career criminal, he does not deserve to be prosecuted for this particular charge.

The legal deficiencies of Alvin Bragg’s indictment have been thoroughly litigated in the media. The case converts what would normally be misdemeanor charges of falsifying business records into 34 felony counts by arguing that $130,000 in hush money paid to Stormy Daniels was an illegal campaign expenditure and each record created for it was criminal.

It doesn't escape me that a part of the reason that Bragg had to stretch out and make them felonies is that otherwise the crimes wouldn't be serious enough to charge someone so powerful without raising the ire of this chattering pundit-cracy. Some are essentially signaling clearly that if they want to come for a rich, elite they better bring serious enough charges to satisfy the people who truly matter like Jonathan Chait. [/sarcasm]

[malchior]

Interesting view from inside the pundits game here. As a side note it seems clear (to me at least) that what Quinta talks to is a split between people who know NY Law and people who seem to be consistently aligned with defending DOJs inaction.

Thread unrolled here

Final final thought: We all know how the pundit game works. Incentives are strong to call something early/then be right. But everyone knows there's no penalty for getting it wrong if you initially "bucked your own side" etc. It's not brave! There's no need to call this one early!

[El Guapo]

The comments here are ... savage. Where French talked about the real legal risks, Eisen wrote about the strength of the underlying framework, we have Chait charged in to yell a barely uninformed opinion really loudly.

No one is above the law.” If you have opened a newspaper or glimpsed at CNN, you have heard a Democratic official recite this truism with regard to the Manhattan district attorney’s indictment of Donald Trump. The political value of this slogan is that it accurately captures Trump’s maddening ability to defy the law for decades on end while suggesting that his immunity is coming to a just and proper end.

But as a defense of the indictment, “no one is above the law” is not remotely adequate. It implicitly places the law itself beyond questioning. The uncomfortable reality is that, while Trump may be a career criminal, he does not deserve to be prosecuted for this particular charge.

The legal deficiencies of Alvin Bragg’s indictment have been thoroughly litigated in the media. The case converts what would normally be misdemeanor charges of falsifying business records into 34 felony counts by arguing that $130,000 in hush money paid to Stormy Daniels was an illegal campaign expenditure and each record created for it was criminal.

It doesn't escape me that a part of the reason that Bragg had to stretch out and make them felonies is that otherwise the crimes wouldn't be serious enough to charge someone so powerful without raising the ire of this chattering pundit-cracy. Some are essentially signaling clearly that if they want to come for a rich, elite they better bring serious enough charges to satisfy the people who truly matter like Jonathan Chait. [/sarcasm]

I think my favorite part is the tweet. Yes, it is true that Trump wouldn't be charged with falsifying records related to a political campaign contribution if he never ran a political campaign. Amazing revelation.

[malchior]

Yeah, and I could be full of shit for all I know. Would not be the first time and will certainly not be the last. But it feels like there are a lot of folks focussing on the second crime that bumps it up to a felony because Cohen already pleaded guilty to the first crime in connection with the campaign finance violation. But I'm not really sure Cohen's guilty plea nails much down.

I'm not so sure on this. No one can know how the ball will bounce but my feeling is everyone is sure of the falsification aspect because that's just how it works in NY. Almost everyone of the NYS practitioners say this and often frame it as NYS law is particular in this fashion. And that makes sense because it has long been a financial center. They are much stricter about business records out of necessity. And just to refer back to it I definitely don't get the feel they think any of it is small ball. It seems like this is to steal from Eisen, bread & butter strategy for a Manhattan DA. They know how to wield this tool effectively.

I'm also fairly certain - although criminal law is not my thing - that Cohen's guilty plea doesn't establish anything in the case against Trump.

The DA is going to have to prove every element of his case, and while he can rely on Cohen's testimony, it doesn't take a criminal defense attorney to see that Cohen is not exactly what you'd call a problem-free witness.

Right. One could easily argue he diminishes the case. Cohen's lawyer has been essentially tamping down that weakness by saying Cohen's words will be backed by nuclear weapons...uh...backed by copious records. And while Cohen is shady, he has been remarkably consistent by all accounts when talking about these events. In the balance, he is damaged goods but it is sort of a necessity to get to the "mob boss". That's how it works, right?

[Zaxxon]

Alvin Bragg sues Jim Jordan.

[Unagi]

[Kurth]

The case seeking to enjoin Jim Jordan and his committee of clowns seems especially strong to me based on the simplest notions of federalism. The brief makes the point clearly and succinctly: How can U.S. Rep. Jim Jordan claim to be investigating the Manhattan DA and a criminal case brought in New York state court on the basis of congressional "oversight"? What exactly are they overseeing? Congress has no purview to oversee state criminal prosecutions.

[Pyperkub]

If these allegations are true, it impacts a lot of different angles, should the tapes become public

https://www.thedailybeast.com/ex-fox-pr ... t-dominion

Sent from my SM-S908U1 using Tapatalk

[El Guapo]

The case seeking to enjoin Jim Jordan and his committee of clowns seems especially strong to me based on the simplest notions of federalism. The brief makes the point clearly and succinctly: How can U.S. Rep. Jim Jordan claim to be investigating the Manhattan DA and a criminal case brought in New York state court on the basis of congressional "oversight"? What exactly are they overseeing? Congress has no purview to oversee state criminal prosecutions.

As I understand it the DA's office gets some federal grant money. Bragg's office has said that they haven't used federal money on this case, though not sure how one would measure that.

I think Bragg has a case, but he will be running up against the general understanding that Congressional subpoena power is very broad. Naturally in a bit of irony he's citing the Mazars decision on saying that there are limits to subpoena power.

[ImLawBoy]

As I understand it the DA's office gets some federal grant money. Bragg's office has said that they haven't used federal money on this case, though not sure how one would measure that.

Treasury Department usually has pretty strict accounting requirements related to grant money and how it's spent. If they've been following the rules it shouldn't be a heavy lift to document where the federal money went.

[Unagi]

Did you all see the interview (or this part at least) where Trump was with Tucker, and Trump claimed that staff (clerks/guards) in NY during the arraignment were crying/shedding tears about what was happening to him?

Honestly, I'm pretty certain that means 100% that Trump cried.

[malchior]

If this system is known for anything, it is the court staff being sympathetic to the accused.

[pr0ner]

Related to Trump's trialing:

[Isgrimnur]

As I understand it the DA's office gets some federal grant money. Bragg's office has said that they haven't used federal money on this case, though not sure how one would measure that.

And federal money to Planned Parenthood isn't spent on abortions. Facts don't matter in the public sphere.