Trump Should NOT TESTIFY at MANHATTAN WITCH HUNT OF A TRIAL

the lying liberal jurors and new york state democrats will twist his words to convict him for lying under oath just like they did with Michael Flynn

Any conviction obtained at the so-called "trial" of former President Donald Trump's alleged alteration of financial records will be reversed on appeal, if necessary by the U.S. Supreme Court, because altering financial records is only a crime in New York if you do it to conceal some other crime. Paying Stormy Daniels money is NOT a crime. The purpose of this whole case was just to give Daniels a megaphone to blast her allegations into nationwide. It is an outrage that the District Attorney brought this case and that the judge did not declare a mistrial.

The one thing that could really cause this case to destroy Donald Trump is if he testifies truthfully at this Kangaroo Court trial. Lying liberal District Attorneys, liberal Democrat jurors, and the judge will give Donald Trump the "Michael Flynn treatment."  Michael Flynn was Donald Trump's first National Security Advisor who gave a truthful deposition to Special Counsel Robert Mueller, and he was then indicted and kicked out of the White House for it. And that is exactly what will happen to Donald Trump if he testifies at this mockery of a trial. Trump should treat this trial as if it was a smutty street art presentation and say that it is beneath him to respond to such garbage.

Comments

[Kazinski]

Well for another more temperate view of what’s happening what’s happening next (it might go to the jury by the end of next week) read Andrew McCarthy’s take:

http://www.nationalreview.com/2024/05/the-trump-trial-could-end-next-week/

I don’t think there is any serious argument that Trump should testify. In fact McCarthy isn’t sure Trump should even worry about presenting a defense since there isn’t much to refute. However he does float the possibility of calling Cohen’s former lawyer who relates Cohen told him, he had absolutely no evidence or testimony against Trump that he could give prosecutors. He said he was desperate and would do anything to avoid prison, but had nothing on Trump that would save him.

And I think he proved that on the stand.

And I do have hope that at least a few of the jurors are honest enough they won't vote for convicting Trump in a trial that the prosecutors struggled even to define a crime, let alone present any evidence of one.

[Dr. Ed 2]

"possibility of calling Cohen’s former lawyer who relates Cohen told him, he had absolutely no evidence or testimony against Trump that he could give prosecutors. He said he was desperate and would do anything to avoid prison, but had nothing on Trump that would save him."

As much as I love this, am I the only one who feels a little bit of discomfort with the precedents being set with lawyers testifying against their former clients? I asked earlier today, elsewhere -- and not totally in jest -- the legal implications of a former President being executed for treason.

There are so many once hard-lines being crossed with such nonchalant abandon that maybe the USSS write a procedure for a protectee facing a lawful execution.

And to those on the left, I know that you think that Orangeman Bad, but Orangeman is in his late 70s and will be DEAD in 30-40 years (from old age) and then what? THEN WHAT????

You can't just undo all the damage that you have done.

[JasonT20]

I never thought for a second that the attorney-client privilege was absolute, and I don't think you do either. The question was always going to be when a lawyer stops being his client's advocate and when he starts being a participant in illegal activity. I also don't think that an attorney can avoid giving testimony of something he witnessed his client do if that act was a crime.

Also, don't forget that the privilege can be broken by third parties being present during a conversation, along with other exceptions.

[Dr. Ed 2]

Heck, if the attorney puts a 9mm round through the prosecutor's head during trial, it's rather clear that we have some issues to discuss. HOWEVER, as a general rule, I like the fact that your lawyer can't repeat what you tell him/her/it.

[Nelson]

Except (and I'm pretty sure this is black-letter law at this point) if thry are helping you commit a crime.

Surely you understand that the crime-fraud exception to attorney/client privilege is a thing, right?

Crap, it's Dr. Ed. He probably doesn't.

[Bored Lawyer]

Well that's ironic, since Cohen testified against Trump.

It is settled law that the attorney-client privilege belongs to the client, who can waive it. Cohen waived it, in writing, when he was interviewed by the US Attorney's office. So I have no issue with him testifying on that score.

[not guilty]

Bored Lawyer, were you present when Michael Cohen was interviewed by the U. S. Attorney's office? If not, how do you claim to know what Cohen wrote during any such interview?

[Bored Lawyer]

Here is what McCarthy has posted:

Costello is a savvy New York defense lawyer who represented Cohen at the start of the federal investigation. He has been released from his attorney-client confidentiality obligation (because Cohen waived confidentiality when he told the feds about his discussions with Costello). On Tuesday, Costello testified before a House committee, asserting that Cohen’s testimony was rife with lies – a claim Costellos says he can back up with emails, texts, etc. Costello also testified to that effect in the grand jury.

https://www.foxnews.com/opinion/end-times-trump-trial-spectacle-room-fireworks-3-things-watch

So, yes, Cohen waived the privilege, and Costello has already testified about their conversations.

[Mr. Bumble]

Oops.

[Kazinski]

"am I the only one who feels a little bit of discomfort with the precedents being set with lawyers testifying against their former clients?"

Yes, but at least in the case of Cohen's attorney, Cohen voluntarily waived attorney client privileges when he he when it was advantageous to him a couple of years ago.

I'm not sure exactly what transpired to breach Cohen's obligation to Trump. It does seem a little extraordinary that a lawyer who Trump hired to advise and carry out tasks legally should now claim that the advise he gave amounted to instructing Trump to commit a crime.

[David Nieporent]

It does seem a little extraordinary that a lawyer who Trump hired to advise and carry out tasks legally should now claim that the advise he gave amounted to instructing Trump to commit a crime.

Well, there's nothing to support your claims that Trump hired Cohen to carry out tasks legally or that Cohen instructed Trump to commit a crime rather than Trump instructing Cohen to do so, but setting that aside, that's literally how the crime-fraud exception works.

[Brett Bellmore]

There's nothing really to support the claim that Trump instructed Cohen to commit a crime, either, aside from a confession that the feds bought and paid for by not putting him behind bars for several decades on an unrelated charge they had him dead to rights on.

I think it's at least arguable that if Cohen's own attorney knows Cohen is perjuring himself on the witness stand, the crime exception kicks in.

[Noscitur a sociis]

Nothing to support the claim except the testimony of the only other person who would know about it. Do you even listen to yourself?

[Brett Bellmore]

Who was paid to give that testimony. Paid in decades not spent in prison, but paid.

[Sarcastr0]

For the jury to decide.

But I forget, you're your own jury with your own unique sense of due process such that Hillary is a felon and Trump is innocent many times over.

[not guilty]

"I think it’s at least arguable that if Cohen’s own attorney knows Cohen is perjuring himself on the witness stand, the crime exception kicks in."

No, Brett. The crime-fraud exception to attorney-client privilege is evaluated as of the time of the communications, focusing on whether the client then sought the attorney's advice in furtherance of or intending to commit a crime or fraud.

[Armchair]

"Well, there’s nothing to support your claims that Trump hired Cohen to carry out tasks legally"

But after going to law school, he found himself working at a personal injury firm, where he did some "legal" and "non-legal" work for Mr Trump, he testified.

In 2007, Cohen said he accepted a job as Mr Trump's special counsel, a role with a base salary of $375,000 (£298,000).

It was a coveted job for Cohen, who would remain in the role for 10 years.

https://www.bbc.com/news/world-us-canada-69006455

Just a 10 year salaried job. Nothing to support the claims that Trump hired Cohen...

[Noscitur a sociis]

I took Kazinski to be claiming that, with respect to the Stormy Daniels situation specifically, Trump hired Cohen to ensure that his actions were done legally. That’s the part that doesn’t seem to have much in the way of evidentiary support.

[Kazinski]

I thought you didn't have to prove your innocence.

I thought you would have to prove the opposite beyond a reasonable doubt.

[BrotherMovesOn]

Trump will live to over one hundred years old? Missed your insane prognosticators Dr. Ed!
Good to have you back.

[Dr. Ed 2]

Did it ever occur to you that I was trying to avoid a chat with the USSS -- that by taking the long end of the statistical mortality tables, I was making it clear that I was merely talking statistics here?

But this doesn't negate my point, estimate whatever lifespan you wish for Trump -- the fact that the damage done to this country in the various attempts to lynch him will remain long after he is gone.

And who knows -- we allegedly are on the cusp of some serious medical breakthroughs that could make living to 100 fairly common. Look at what CPR did in the 1970s -- when middle aged men stopped dying of heart attacks in the parking lot, which had been common before then...

[Noscitur a sociis]

If this is you after censoring your comments to try to avoid attracting the authorities, I’d love to find out what you really think about some of this stuff!

[not guilty]

Andrew McCarthy "does float the possibility of calling Cohen’s former lawyer who relates Cohen told him, he had absolutely no evidence or testimony against Trump that he could give prosecutors."

The National Review article is hidden behind a paywall. Does McCarthy offer any reason why Michael Cohen's communication to his then-lawyer would not be privileged or confidential? (The duty of confidentiality is broader than the duty of keeping privilege.) Did Trump's lawyers ask Cohen on cross-examination if he made such a statement? If not, how would it be non-hearsay? If it is admissible as a prior inconsistent statement, it could be offered only for impeachment and not as substantive evidence for the truth of the matter asserted.

[David Nieporent]

A better question is where this claim that Costello was Cohen's lawyer comes from.

[Kazinski]

CNN for one, but I do see him described in Politico as Cohen's former 'legal advisor'.

https://www.cnn.com/politics/live-news/trump-hush-money-trial-05-16-24/h_400bd4bd2a790ef730c277da6d097c3b

"From CNN's Paula Reid and Kristen Holmes

Michael Cohen's former attorney Bob Costello could be called by Trump’s defense team as a witness during their case, according to a source familiar with the defense team’s strategy.

Costello testified Wednesday in front of a House Judiciary subcommittee, consistently criticized his former client and said said “virtually every statement” Cohen made on the stand about Costello was a lie.

Following the testimony, Trump’s team reached out to Costello."

[not guilty]

Set aside for the moment whether Mr. Costello was or was not acting as Mr. Cohen's attorney when the alleged statements were made. If the Trump team offers Cohen's statements for the truth of the matter asserted, what hearsay exception would apply?

[Bored Lawyer]

You answered your own question. It would not be offered for the truth, but to impeach Cohen's credibility.

"As a general rule, the credibility of any witness can be attacked by showing an inconsistency between his testimony at trial and what he has said on previous occasions." People v. Duncan, 46 N.Y.2d 74, 80, 385 N.E.2d 572, 576 (1978).

That's the thing about hearsay -- it's only hearsay if offered for a specific purpose. If offered for some other purpose, it's not hearsay. Many lawyers overlook this.

[not guilty]

"It would not be offered for the truth, but to impeach Cohen’s credibility."

IOW, not as substantive evidence. As the Court of Appeals of New York has opined:

The right of a cross-examiner to use a witness’ own prior statement in which he has given a contrary version of the purpose of testimonial impeachment and the corollary rule that such prior statements have no substantial or independent testimonial value are so firmly imbedded in our law of evidence that the citation of authority is scarcely required. (3 Wigmore on Evidence [3d ed.], § 1018; Matter of Roge v. Valentine, 280 N. Y. 268, 277; People v. Ferraro, 293 N. Y. 51, 56; 30 Corn. L. Q., 511.)

People v. Freeman, 9 N.Y.2d 600, 605 (NY 1961) (italics in original).

[Bruce Hayden]

Somehow Trump’s conversations with Cohen aren’t privileged, but Cohen’s with his own lawyer are? Sure sounds like a double standard to e.

[David Nieporent]

Michael Smith killed a couple of people in Oklahoma. He was arrested and prosecuted. Someone from the Oklahoma Department of Corrections killed Michael Smith last month. That person was not arrested and prosecuted. Bruce Hayden thinks this is a "double standard."

[bacchys]

There's a crime-fraud exception to lawyer-client privilege. Cohen committed crimes with Trump. Cohen was convicted of those crimes. Trump was an unindicted co-conspirator. Trump wasn't indicted because DOJ has a policy prohibiting it from prosecuting a sitting President. Anything connected to those crimes isn't protected by the privilege.

[Brett Bellmore]

He was also not indicted as a co-conspirator because they couldn't prove that crime in court. Cohen wasn't convicted of it, he pled guilty to it, in return for not spending the rest of his life in prison on unrelated charges. The confession was bought and paid for, something that's long, long been a problem with plea bargaining.

[David Nieporent]

he pled guilty to it, in return for not spending the rest of his life in prison on unrelated charges.

Do you guys just have some sort of service that you subscribe to that generates absurd talking points that you are contractually obligated to repeat? Why would either the USAO or Cohen do that?

Hint: the answer "Because DOJ wanted to get Trump" is a nonsensical answer, given that they did not in fact ever try to use Cohen's plea/conviction against Trump. DOJ would've been in the same position vis-à-vis Trump if Cohen had pleaded guilty to those unrelated charges.

[Sarcastr0]

Not even the most wild-eyed abolish prisons criminal justice radical reformer goes with 'guilty pleas are not evidence of guilt.'

[Dr. Ed 2]

Read Harvey Silverglate's _Three Felonies a Day_.....

[Sarcastr0]

The practitioners on here don't find it a very convincing work.

But more importantly, does that talk about guilty pleas or are you quite off topic?

[Noscitur a sociis]

Cohen wasn’t convicted of it, he pled guilty to it,

Oh boy.

[not guilty]

Brett, where on earth do you get the notion that a criminal defendant's guilty plea, which has been accepted by the court and judgment pronounced pursuant thereto, is anything other than a conviction?

[Riva]

Crime fraud exception? Apart from there being no crime involved here, good idea. Now with the Big Guy, there one is spoiled for choice.

[Sarcastr0]

Cohen did crimes - Criminal Tax Evasion And Campaign Finance Violation. He plead guilty. He went to jail.

[Riva]

Nothing to do with Trump and I don’t recall the fat slob alleging any of that, you know, informing the defendant of the nature of the charge and actually proving it? That’s how it works, outside of corrupt Democrat party banana republic trials.

[David Nieporent]

What you "don't recall" is pretty much everything that you weren't spoonfed by Julie Kelly (who isn't a lawyer). Trump was fully informed.

[Dr. Ed 2]

The problem with licensing lawyers is that non-lawyers have to be given a pass if they follow the advice of a licensed lawyer.

[not guilty]

"The problem with licensing lawyers is that non-lawyers have to be given a pass if they follow the advice of a licensed lawyer."

Dr. Ed 2, is that as true as everything else you have said?

Under some limited circumstances, evidence of advice of counsel can rebut or mitigate a criminal defendant's culpability. A defendant is not entitled to a jury instruction on that defense unless he introduces evidence that (1) "he relied in good faith on the counsel’s advice that his course of conduct was legal," and (2) "he made full disclosure of all material facts to his attorney before receiving the advice at issue." United States v. Gray-Burris, 920 F.3d 61, 66 (D.C. Cir. 2019), quoting United States v. DeFries, 129 F.3d 1293, 1308 (D.C. Cir. 1997).

That is a far cry from non-lawyers having to be given a pass if they follow the advice of a licensed lawyer.

[David Nieporent]

Dr. Ed 2, is that as true as everything else you have said?

Yes.

[Vryedni]

Holy shit, dude, you're an endowed professor at an elite law school. What an embarrassment.

[Kazinski]

Yeah, I agree that Calabresi has been a little excitable lately, but as for an embarrassment, well its hard for any Northwestern professor to top their administration for embarrassing behavior these days.

https://apnews.com/article/northwestern-students-israel-palestinians-protest-c3698198f13c986d6bc238ff96081f9d

[Rev. Arthur L. Kirkland]

I doubt Northwestern is in the market for pointers from a right-wing misfit living in an off-the-grid hermit shack (ostensibly with a mail order bride), idolizing Ted Kaczynski.

Could any volume of slaughtered Palestinian shake your solidarity with Israel's war-crimey, superstition-driven, West Bank-terrorizing, right-wing belligerents? Or do those deaths flatter your bigotry enough to make them a plus for you and transform terrorists into your heroes?

[Frank Drackman]

“Slaughtered Palestinian”??
Sounds like a great offering for my “(late) Dr. Baruch Goldstein’s Kosher Deli & Shooting Range”
team it with Palestinian Chicken, BBQ Sumaghiyeh Soup, and my renowned Silesian Goat Schnitzel, how could it miss (well Dr. Goldstein missed more Palestinians than he hit, it’s why he’s the (late) Dr. Goldstein.)

Frank “Make that 3 Slaughtered Palestinians, on Rye, with mustard and horseradish”

[Rev. Arthur L. Kirkland]

The time Israel has left to ditch its government of right-wing assholes and its despicable conduct may be short.

Whether Israel changes course (and benefits) or not (and has the severe price for that mistake imposed on it) is Israelis' call. It's their funeral, after all.

[Krayt]

you’re an endowed professor at an elite law school.

Many such cases in this case, who feign concern for rule of law.

To prove this, many such hope for a conviction, so they can in turn go after him as “corruptly influencing an election.”

That it’s not about “git im!” is a freakin’ joke.

Paid off a porn star to hide an affair [hundreds of millions of $ later] and therefore corruptly influencing an election.

Doesn’t that sound scary and evil as shit? Corruptly influencing an election!

It’s already a grotesque stretch to apply a transparency law so people can see who donates to politicians to the politician “donating” to himself for his own benefit.

He’s not a good man. He should not be president again because we don’t need people looking glowingly on Russian military conquests.

But America doesn’t need a monster cabal endlessly wielding the government’s power of investigation against a political opponent, either. That’s what Putin does.

[Sarcastr0]

Monster Cabal is the name of my new costumed goth band.

[Don Nico]

"therefore corruptly influencing an election."
Question begging at its finest. Exclamation point et al.

[Sarcastr0]

Don for fuck's sake read the post you're replying to.

[Dr. Ed 2]

Sometimes the best advice a lawyer can give is to keep your mouth shut...

[not guilty]

Donald Trump's lawyers will likely counsel against it, but the decision of whether to testify or not is Trump’s alone. See, Jones v. Barnes, 463 U.S. 745, 751 (1983). A defendant who has a lawyer relegates control of much of the case to the lawyer except as to certain fundamental decisions reserved to the client, including whether to testify at trial. People v. Ferguson, 67 N.Y.2d 383, 390 (N.Y. 1986).

[Dan Schiavetta]

Good research!

[Mr. Bumble]

All of which makes sense since you pay your lawyer for his expertise but ultimately you are the one in jeopardy.

[Nige]

Trump's lawyers are almost invariably in jeopardy from their client.

[Mr. Bumble]

Douche speaks, says nothing.

[Nige]

You poor amnesiac.

[David Nieporent]

110% of the time, the best advice a lawyer can give a client is to keep his or her mouth shut. (Unless and until a plea agreement is in place, or the client has been granted immunity.)

[Brett Bellmore]

It is somewhat embarrassing that I knew whose post that was before reading half-way through the title.

[Rev. Arthur L. Kirkland]

It could have been Blackman or the newly unleashed Volokh . . . until the ALL CAPs shouted CALABRESI.

It only gets worse as the Volokh Conspiracy descends into the lowest levels of the clingerverse.

How many legitimate law schools will be interested in hiring the next Blackman, Volokh, Calabresi, or Bernstein? Maybe Leonard Leo should take some of that clinger cash and build a law school for society’s disaffected right-wing rejects.

[Frank Drackman]

Apparently one more than is interested in hiring you

[Kazinski]

Well if it was intended as clickbait it worked, almost 250 comments.

Stack that up against Ilya's pathetic 22 comments on the tacos y burritos vs sandwiches post.

[Sarcastr0]

VC doesn't really need clickbait. This is as deeply fucked as it appears; don't try and apologize for it.

[Kazinski]

Yet here you are.

[Roger S]

Yes, Trump would be charged with perjury. He would be asked for every detail of the alleged sexual relations, and any answers would be perjury traps.

There are many other reasons not to testify. First, the prosecution has not put on any evidence of any crime, so there is nothing for Trump to deny. Prosecution is required to prove intent, where they have no evidence except twisting the meaning of Trump's words, and testifying would just be more words to twist.

Mostly Trump cannot testify because of how the rules of evidence work. This trial is just a big character assassination, and Trump testifying would open the door to many more attacks on his character.

I think that we are headed towards a jury acquittal. If not, any conviction will be overturned on appeal.

[bacchys]

The state has put on considerable evidence Trump falsified business records and that he did so to conceal the fact it was an unreported (and hence illegal) campaign contribution.

[Riva]

What crime is that sparky? State law? They have no jurisdiction over federal campaigns Federal law? The FEC has jurisdiction, not NY and the FEC doesn’t think there’s a crime. But that assumes the fat slob has actually gotten around to notifying the defendant of the crime he has alleged and is attempting to prove, beyond a reasonable doubt. Maybe things are done differently in NY? Oh, added bonus, Hillary accounted for the monies used to pay for the Steele dossier fraud, you know the actual fraud perpetrated to influence the presidential election, as a legal expense to Perkins Coie, otherwise known as Democrat “fixers.”

[Sarcastr0]

It's still a crime even if it's federal, as it turns out.

[Riva]

Not at all. And that’s from the parties who actually have jurisdiction over federal campaign finance law. That would not be the Manhattan DAs office. And now it’s campaign finance but above you thought it could be some kind of tax evasion? Hopefully the fat slob will decide before the jury starts deliberating.

[Sarcastr0]

now it’s campaign finance but above you thought it could be some kind of tax evasion

“Criminal Tax Evasion And Campaign Finance Violation.”

You have a habit of posting from a realm of pure emotion, unencumbered by facts or even the text of the actual comments you reply to.

It should be more amusing than it is, but you're really unimaginative.

[Riva]

I’m frankly more concerned with that fat slob in NY unencumbered by the law than I am with the infantile rants of a Sarcastro unencumbered by any concerns over the due process of law.

[Nelson]

"Hopefully the fat slob will decide before the jury starts deliberating."

Don't call Trump fat. He's 6' 3" and 215 pounds, just like Tyson in his prime.

[Vryedni]

How dare you compare Trump to Mike Tyson? Tyson is a 5'10" girly-man who cowers in the shadow of Trump's manhood. Proper analogs to Trump's imposing BMI are John Elway, Larry Fitzgerald and Lamar Jackson.

[David Nieporent]

What crime is that sparky? State law? They have no jurisdiction over federal campaigns Federal law?

I don't know how many times I need to spell it out for you, but you are mindbogglingly stupid. The. Federal. Crime. Is. Not. An. Element. Of. The. Offense. The intent to conceal it is. NY does not need "jurisdiction" over the federal crime. The crime could be a liquor store robbery in Idaho or a murder in Paris — neither of which the Manhattan DA has jurisdiction over.

The FEC has jurisdiction, not NY and the FEC doesn’t think there’s a crime.

In addition to being irrelevant, it's wrong on both fronts. First, the FEC only has jurisdiction over civil enforcement of campaign finance law, not criminal. Second, the claim that "the FEC doesn't think there's a crime" is something pulled out of your nether regions, where your head is generally located.

But that assumes the fat slob has actually gotten around to notifying the defendant of the crime he has alleged and is attempting to prove, beyond a reasonable doubt.

It's really pathetic how badly you're overcompensating for your own physical and mental inadequacies by insulting Bragg's looks, and it does not "assume" that, because it is established fact. Trump has been notified.

Hillary accounted for the monies used to pay for the Steele dossier fraud, you know the actual fraud perpetrated to influence the presidential election, as a legal expense to Perkins Coie, otherwise known as Democrat “fixers.”

That's not how Perkins Coie is "otherwise known," but it's true that her campaign recorded it as a legal expense, and they paid a fine as a result. (Also, it was not in fact a "fraud." There is zero evidence that Steele did not accurately report what he was told.)

[Roger S]

Sure, the crime could be a liquor store robbery in Idaho, if Trump did that. But there was no crime being concealed. There was not even anything that looked like a crime. The DA was unable to even allege a specific crime.

[Michael Ejercito]

There is a strong argument that paying off Stormy Daniels violated Sharia law.

[Riva]

The attempt to conceal what you blithering idiot? What frigging "crime"? You think (just a figure of speech, we both know you don't think) that President Trump can be convicted and sentenced to a virtual life sentence for having concealed a "crime" that no one has actually alleged or proved? As far as jurisdiction, the fact is that the federal authorities are the only parties that can enforce federal campaign law, if that's what this is because no one is really sure. And that you deny the fraud of the Steele dossier just further discredits you, if that were possible. The Russian collusion fraud perpetrated by Hillary and the democrat party was the actual fraud that occurred in the 2016 campaign.

[David Nieporent]

President Trump can be convicted and sentenced to a virtual life sentence for having concealed a “crime” that no one has actually alleged or proved?

There's no such person as "President Trump," but since "having concealed a crime" is not an element of 175.10, yes, absolutely. (Also, not clear how 1-5 years is "a virtual life sentence.")

As far as jurisdiction, the fact is that the federal authorities are the only parties that can enforce federal campaign law,

Which is why Bragg cannot charge Trump with violating federal campaign law. Which is why Bragg didn't charge Trump with violating federal campaign law. The only charge against Trump is falsifying business records.

[Michael Ejercito]

Which is predicated on covering up a payment to Stormy Daniels, a payment which is not a crime in any way- unless you consider violations of Sharia law a crime.

[David Nieporent]

a payment which is not a crime in any way

Weird how Michael Cohen went to jail for it, and AMI paid a fine, then.

[Brett Bellmore]

Cohen went to jail on the tax crimes, and got off really light on those in return for pleading guilty to the campaign finance violation so that Trump could be implicated.

I keep saying this: Plea bargains are one of the more corrupt aspects of the American justice system. And Cohen's case is a great example of that.

Nail somebody dead to rights on something serious, and agree to go easy on them on that charge in return for pleading guilty on some charge you don't have a prayer of convicting on, but can use against somebody else you want more. It's a sketchy practice in the best of cases, and this was hardly the best of cases.

[David Nieporent]

Nail somebody dead to rights on something serious, and agree to go easy on them on that charge in return for pleading guilty on some charge you don’t have a prayer of convicting on, but can use against somebody else you want more

Once again: you have zero evidence that this was their plan, and there's strong evidence that it wasn't. Namely: DOJ never even tried to use it against Trump.

Nor do you explain what legal research led you to the conclusion that they didn't have a prayer of convicting Cohen for it.

[Brett Bellmore]

I should add that while AMI paid a fine, it really has no relevance for the case, legally. They paid hush money to a playmate to keep her story out of the news, but since Trump didn't reimburse them, (Neither did Cohen.) there are no book keeping entries for Bragg to claim were falsified.

[David Nieporent]

As always, you don't understand what you're talking about. The AMI situation is relevant in (a) establishing that the conduct was illegal; and (b) establishing Trump's knowledge, undermining all the, "Trump had no idea what Cohen was doing" defenses.

[Rev. Arthur L. Kirkland]

Acquittal. Son of a bitch, that’s an unexpected call. Even the most diehard Trump fans have been hoping for a hung jury at best.

[Nelson]

"This trial is just a big character assassination"

You can't assassinate something that's been dead for 70 years. At best it's character necrophilia.

[parabirb]

this is probably the most unprofessional piece i've seen on the volokh conspiracy. what's going on?

[santamonica811]

He's a whore. He whores as easily and effortlessly and you and I breathe. I always thought Josh Blackman was kind of the bottom of the barrel here at the VC. But Josh ended up at a 3rd-rate law school. Calabresi got a tenured teaching gig at an excellent school. A law school that must be incredibly ashamed right now.

He's a whore. Not much more to be said about him.

[parabirb]

i think it's less likely that he's intellectually bankrupt and more likely that he's having some sort of mental break. someone really needs to check in on him

[Rev. Arthur L. Kirkland]

First, he is what Eugene Volokh wanted for his blog. Those who mistook Volokh for.a mainstream, reasonable academic have been vividly discredited by the additions of Blackman and Calabresi. The move from UCLA to a right-wing mouthpiece-for-hire shop is a consequence and element of who he is.

Second, it may just be an especially severe late-life crisis. The elderly become fearful and this guy fears American modernity and dislikes the trajectory of our national progress. But what can he do about it? He must recognize his students, faculty colleagues, and employers despise him. But where could he go? Dreaming of a position in a Trump administration (or an insurrection) might be most or all of what is left for a fading clinger like Calabresi. Recognizing that may have knocked this old loser off his rocker.

Still could be a stroke.

[Dan Schiavetta]

I’ve followed the VC for 20 years and though I usually disagree with the VC’ers I read it because the posts are soberly written.

[Orbital Mechanic]

History has shown Trump attorneys have refused to let him testify under oath, regardless of whether they thought he was innocent. The reason being is that they determined in preparation that he is incapable of not lying.

So I take the "Trump Should NOT TESTIFY" headline as basically a statement from his own lawyers.

https://nymag.com/intelligencer/2018/02/trumps-lawyers-seem-to-think-hes-incapable-of-not-lying.html

[Roger S]

The decision is Trump's to make, not his attorneys.

[Krayt]

Well, yes. That’s the upside and downside of our system. To prevent government from doing the prosecution and defense simultaneously, a sketchy proposal as history shows, the defendant has the ultimate say on what goes on, and the lawyer derives authority from that, not the other way around.

Me, if that ever happens, I will just shut up and do what they say. In some cases, bring the popcorn.

[Nige]

I saw a transcript of Trump testifying under oath from years ago, can’t even remember where, but what struck me was the studied care and restraint with which he spoke. Trump is, or at least was, actually too canny to lie under oath. Obviously what that implies about the things he says the rest of the time are kind of unpalatable, because he might just be the sly fox who gets away with shit his supporters want him to be. He can refuse to testify and still tell his supporters that he is being silenced by the judge and denied the chance to give his side of the story. The contradiction is the point.

[Kenneth Almquist]

If Steven Calabresi no longer believes in the legal system, I’m not sure it makes much sense for him to contribute to a law blog.

- “Altering financial records is only a crime in New York if you do it to conceal some other crime.”

This is a flat out misstatement of the law. (Under New York law, to convict someone of falsification of business records in the second degree, the prosecution has to demonstrate an intent to defraud. For falsification of business records in the first degree, then prosecution additionally has to show an intent to advance or conceal another crime.)

- “Michael Flynn was Donald Trump's first National Security Advisor who gave a truthful deposition to Special Counsel Robert Mueller, and he was then indicted and kicked out of the White House for it.”

And here Calabresi is inventing facts. (To begin with, I don’t believe Flynn ever gave a deposition, truthful or otherwise, to Rober Mueller.)

[Roger S]

Your distinction does not matter. No records were falsified. There was no other crime. No evidence of any criminal intent has been presented. No crime was concealed. No attempted crime was attempted to be concealed. There is no crime here, no matter how you look at it.

[David Nieporent]

No records were falsified.

What legal services did Cohen perform for Trump each month during the time that Trump was recoding payments made to Cohen each month as payment for legal services made during each of those months?

[Roger S]

Cohen presented bills for legal services. It is true that his services were performed in the past, and included payments to someone other than himself, but that is not unusual. People pay bills for past services all the time.

[David Nieporent]

What legal services did Cohen perform for Trump each month during the time that Trump was recoding payments made to Cohen each month as payment for legal services made during each of those months?

[bacchys]

None. Roger S is willingly gulping down idiotic rightwing lies and mindlessly repeating them.

[Roger S]

Trump paid a bill by installments. Probably 100 million Americans have paid bills that way. Not criminal at all. Not even unusual.

[David Nieporent]

The first car I bought, I indeed paid off the loan for it in installments. You know how I recorded the September and October payments? Hint: it wasn't "Payment for car bought in September" and "Payment for car bought in October," respectively. That's because I didn't buy a car in September or in October, so that would've made no sense.

Trump, however, recorded his payments not as installments on an existing bill, but as payments for services rendered in each month. Even though no services were rendered in any of those months.

[Brett Bellmore]

Well, you know, that's the nature of buying a physical object, it happens at once. Services happen over a period of time.

[David Nieporent]

There were no services provided by Cohen in those time periods.

[Kazinski]

You must not know much about law professors. If you want to listen to someone go on a screed about how unjust the legal system is go ask
a law professor. Now I will admit its usually liberal law professors that will tell you defendants can't get a fair shake in our legal system, so Calabresi is an outlier there.

Oh and if you can't find a law professor to ask, then ask Allen Bragg, he's so concerned about how unfair the system is he doesn't even charge most perps.

[not guilty]

Who is Allen Bragg?

[Kazinski]

Alvin, Allen, what's the difference? I'm not on a first name basis with him.

[MoreCurious]

More evidence that Calabresi has lost his mind. If he has any friends left, this might be a good time for them to intervene.

[TK-421]

Go home, Steven, you're drunk.

[joshuamking]

What a nonsense screed. This dude is really bringing the level down around here.

[Rev. Arthur L. Kirkland]

“bringing the level down around here”

Blackman. Volokh. Baker. Bernstein.

Try again.

[Sarcastr0]

I mean this is just a blog, it's fine to have a bit of jank in the tone and style.

Anyone who is truly concerned for the dignity of this blog is taking themselves and the Internet a bit too seriously; we'll all be okay.

I'm legit worried about Calabresi though. This is beyond 'what did he sell his dignity for' and onto 'he's got something seriously wrong and it's getting worse.'

[Randal]

Why are people saying "jank" all the sudden? It makes me want to gouge my eyes out a little bit. Where did it come from?

[Frank Drackman]

People’s who aren’t cool try to sound cool by saying words like “jank” “chief” “man” people who are cool like me use hep phrases only similarly cool people’s get like “homminahomminahommina”

Frank

[Sarcastr0]

It may be a young millennial/zoomer thing.

I got it from the video game reviews I listen to when I work out.

[Frank Drackman]

So why are you using it boomer?

[Mr. Bumble]

It’s cultural appropriation:
"Jank is slang that means “worthless” or “of poor quality.” It originated from African-American communities in the 1990s and is used to describe something disappointing or frustrating."

[Frank Drackman]

Oh, like "Nig-rigged" got it.

[fafalone]

Lol this guy having a full on childish tantrum on the internet that his cult leader might get convicted for one of his many blatant crimes. What's wrong, not getting enough adulation for the crackpot legal theories you're flogging because the far right political outcome you and your buddies want has no reasonable ones anyone besides outcome-driven partisans will take seriously? Did that cause this mental breakdown where you're carrying on with the same immature histrionics as the dementia-addled dimwit you're defending?

[Frank Drackman]

Tantrums gonna be you when there’s no conviction

[Josh R]

To be sure, Calabresi has lost it. But, ...

altering financial records is only a crime (*) in New York if you do it to conceal some other crime. Paying Stormy Daniels money is NOT a crime.

Has the prosecution called any witnesses, or made any arguments to the jury (other than the brief statement in opening arguments) what the other crime is and how the evidence shows an attempt to conceal that other crime (we know it has to be one of federal campaign finance laws, NY tax laws, or NY law which proscribes using unlawful means to influence an election)?

(*) Quibble: it's only a felony if there is an attempt to conceal another crime.

And of course Trump should not testify. He can't help but lie.

[Kenneth Almquist]

As far as I’ve read, the answer to your question is “no.” I think we will have to wait until the closing arguments and the judge’s charge to the jury to get a clear picture of how evidence is supposed to establish a crime.

As I read the law, the prosecution is not required to settle on a single other crime. They can say, “we believe that the defendant intended to conceal crimes X, Y, and Z, but in order to convict, you only need to find that the defendant intended to conceal at least one of those.”

[Brett Bellmore]

The idea that you can be convicted of a felony without the prosecution having to identify such a key element of the offense so that the defense can dispute it is insane.

[Sarcastr0]

It's not a key element. You're going against criminal law concepts that predate America.

[Brett Bellmore]

Of course it's a damn key element, if your felony is an expired misdemeanor without it!

[Sarcastr0]

Attempt isn’t even a crime at all without the non-element underlying crime being attempted.
Conspiracy as well.
Solicitation also doesn’t require the underlying crime to be proven.

Plenty of things about our criminal justice system aren't fair, but it's kind of wild to choose this broad concept as the one you go up against.

You’re incensed about a structure used in certain crimes that predate America. Hard to ignore how instrumental your sense of justice is.

[Ridgeway]

I think what Brett is saying is that the prosecution must prove that the conduct Trump sought to conceal was a crime by showing the specific statutes alleged to have been violated and by proving BARD that such statute(s) was indeed violated.

My understanding is that the State views the payment to Daniels as a campaign contribution that was not disclosed, and that the structuring of those payments was done to cover up the fact that the contribution was not disclosed.

I think that is plausible, but AFAIK the State has been vague on exactly which statutes were indeed violated. Moreover, at the Federal level, I am not 100% sure that the alleged conduct is actually a crime. John Edwards was indicted for it, but he challenged it and his case was never finally adjudicated as to guilt. Cohen pled guilty to it as well, but not with much scrutiny as to that particular count.

I am curious how this part will play out.

[Sarcastr0]

This is getting pretty deep for my largely academic criminal law background, but I think the burden would be preponderance and the assumption would be the regular functioning of the justice system and constitutionality of duly passed and thus far unchallenged laws.

I've seen no attempt by the defense to rebut that the underlying crime was actually a crime, it's all a much broader and more ridiculous blanket denial anything happened at all.

The *reporting* has been vague as to the crime, but I don't know that the actual prosecution has been vague.
Still, I wish I could do better than politico: https://www.politico.com/interactives/2023/trump-criminal-investigations-cases-tracker-list/
"Prosecutors have charged Trump with felony-level falsifying business records and have three theories to show a separate underlying crime. The first two theories argue that the Daniels payoff constituted an illegal contribution to Trump’s campaign in violation of federal and state election law, respectively. The third theory alleges that Trump intended to violate New York tax law by inflating and falsely characterizing the reimbursement to Cohen to manipulate its tax consequences."

[Josh R]

I agree the prosecution must specify the underlying statute. However, it is not at all settled law that the underlying crime had to be committed. It may suffice that the falsified records were to conceal an intent to commit the underlying crime.

That being said, I agree that prosecution has so far been vague on the underlying crime (I haven't seen them make the argument before the jury) and time is running out. What will the jury instructions be?

[Brett Bellmore]

"Attempt isn’t even a crime at all without the non-element underlying crime being attempted.
Conspiracy as well.
Solicitation also doesn’t require the underlying crime to be proven."

In all three cases the underlying crime has to be identified, though. And what did I say, that you took exception to?

"The idea that you can be convicted of a felony without the prosecution having to identify> such a key element of the offense so that the defense can dispute it is insane."

[Sarcastr0]

The crimes have been identified. It's been posted on the VC. I posted which crimes on this thread.

You seem to be confusing your ignorance with some failure on the part of the prosecutors.

[Josh R]

Yes, the underlying crimes have been identified. But, has the jury heard them? And more importantly, has the jury heard evidence to convince them beyond a reasonable doubt that the falsified records were to conceal an intent to commit the underlying crimes?

[Sarcastr0]

I've not been following the blow-by-blow, but I don't know that I'd stand on the legal argument being legit but maybe no one told the jury.

[bacchys]

The prosecution has had several witnesses testify to the "other crime," which is NY law Sec. 17-152 Conspiracy to promote or prevent election.

Trump isn't charged with that crime, but nothing in NY case law I've found suggests the other crime has to be charged (or a conviction gained) in order for it to serve in leveraging the falsified business records charged to a felony.

I do think Bragg is going to lose on appeal. I think the NY appellate courts will toss out felony convictions and narrow the law with respect to making falsified business records a felony. At the end of it all, Trump's convictions for misdemeanors will remain.

[Brett Bellmore]

It can't, because as a misdemeanor it was past the statute of limitations; Throw out the felony and the case evaporates entirely.

[Michael Ejercito]

The alleged acts do not constitute such a crime.

[Josh R]

Yes, there has been testimony that the hush money was intended to help Trump get elected. But, 17-152 requires "unlawful means." What testimony has there been that the records were falsified with the intent to conceal a conspiracy to get Trump elected by unlawful means?

[Kazinski]

Who made the falsified business records? If wasn't Trump, and testimony establishes he had nothing to do with deciding how the entries were made.

[Nelson]

By that logic, every boss could claim that their underlings did it, not them. I believe "the buck stops over there" doesn't fly in court.

[Tempe Jeff]

Unless you have put your company in a trust before the entries were made. Trump had no control over his companies in 2017.

[Kazinski]

They can’t even show the first crime of willfully making a false entry. McConney Trump’s controller said he made the entries, and he wasn’t directed by Trump to make them, and was not aware of what the underlying purpose was.

” McConney said he later asked Cohen for invoices so he could begin paying him. Cohen sent him an email that said, “Pursuant to the retainer agreement, kindly remit payment for services rendered for the months of January and February, 2017,” each for $35,000.

Asked whether he ever saw a retainer agreement, McConney said, “I did not.” In an email shown in court, Weisselberg told McConney on Feb. 14, 2017, that the payments were approved as “per agreement with Don and Eric,” the Trump sons who took over day-to-day management of the company after their father took office.

The next month and afterward, the checks were paid from Trump’s personal account instead of his trust, so the check had to be signed by Trump at the White House and then sent back to the company, which “was a whole new process for us,” McConney said.

“Payments to lawyers by the Trump Organization are legal expenses, right?” Bove asked. “Yes, sir,” McConney replied.”

https://www.nbcnews.com/politics/donald-trump/trump-hush-money-trial-rcna150671

One other tidbit, I wasn’t aware of, the entries were made in 2017, when Trump had already given up control to Don jr and Eric. Even if you give credence to the absurd theory that the head of the Trump.organization was criminally responsible for an innocent employees judgement call, Trump was not the head of the Trump organization when the entries were made, and had nothing to do with deciding how they were recorded.

The case fell apart on the day McKinney testified.

[David Nieporent]

Now it's beyond obvious that Calabresi is either doing some sort of social experiment or is using ChatGPT to generate crazy posts in the style of a MAGA loon. Regardless of the poor legal analysis, there are just factually incorrect statements that no actual lawyer could make:

• "the lying liberal jurors" — Huh? I get "liberal," but "lying"?
• "convict him for lying under oath just like they did with Michael Flynn" — but Flynn pleaded guilty; "they" did not convict him.
• "The purpose of this whole case was just to give Daniels a megaphone to blast her allegations into nationwide." — Also "huh?" That happened years ago.
• "It is an outrage that… the judge did not declare a mistrial." — On what grounds?
• "Michael Flynn was Donald Trump's first National Security Advisor who gave a truthful deposition to Special Counsel Robert Mueller," — Flynn did not give any deposition to Mueller.
• "… and he was then indicted and kicked out of the White House for it." — Flynn was 'kicked out of the White House' in February 2017, long before Robert Mueller was even appointed (in May 2017). He was 'kicked out of the White House' not for any "deposition," but for admittedly lying to Mike Pence. He was never "indicted" at all; he was charged via information for — and pleaded guilty to — lying to the FBI agents who interviewed him in January 2017.

[Vryedni]

Sure, but other than that, Mrs. Lincoln, you have to admit it was a damn funny play.

[Sam Bankman-Fried]

Flynn was fired because he urged Trump to send SEAL Team 6 to assassinate a little American girl and 9 of her little friends. A SEAL died and nothing of value was recovered in the mission and Trump lied to the father of the dead SEAL about how he died. The mission was FUBAR from jump street and it was Trump’s first military order…almost makes you believe in a Deep State out to undermine Trump!?!

[Bruce Hayden]

That sounds a bit far fetched. He wasn’t NSA long enough to do something like that, and that’s not something that will get you fired as the NSA.

The reality is that Gen Flynn was forced out through a (misused) § 1001 perjury trap, and criminalization of FARA, including against his son who had a baby due, because he knew where the dead bodies were buried in the Intelligence Community. And make no mistake, it was the civilian side of our Intelligence Community that took him out. The FBI agents who sprang the trap worked for the FBI’s Counterintelligence Division (yes, where Peter Strzok was a branch chief). The same organization that helped concoct Crossfire Hurricane and RussiaGate, and fraudulently acquired the 4 FISA warrants against Carter Page, very likely in order to electronically surveil Trump and his inner circle (using the 2 hop rule), even as President. Rogue FBI and DOJ people electronically surveil in President Trump in the White House. Even if we didn’t know the names of these FBI agents (we do), we would know who was behind it, because they were the ones who would have had the (illegally unminimized) transcripts of Flynn’s phone call with the Russian Ambassador, under their standing FISA warrant on the Ambassador’s phone. That is the part of the FBI that does that sort of thing. Knowing what we know now, Trump should have immediately ordered the US Marshall’s to arrest the FBI agents and DOJ prosecutors involved. But back then, he and his people still believed in the rule of Law, and that the Deep State wouldn’t violate it for petty private and political reasons.

I should also note that these are the same civilian Intelligence Community organizations in the FBI and DOJ who put together the FL case against Trump, and ran it at least up to the time the indictments were filed, and likely still are running it to the present. The branch chief of the DOJ’s Counterintelligence and Export Control Branch (CECB) is Jay Bratt. He is also Jack Smith’s Deputy Special Counsel. The CECB is the sister organization to the FBI’s Counterintelligence Division (CD). Bratt very much appears to be the one who set up the entire case, from the FBI having NARA request the documents from Trump, through having them (likely illegally) file a criminal referral with the DOJ (meaning Bratt), to his subpoena for the documents, through his refusal to give Trump’s attorneys extensions of tie to respond or allow rolling document production, to using that to justify his search warrant of MAL (executed, in part, by FBI CD agents), to running the secret DC grand jury, to signing the original indictment.

Which is why arresting the (CD) FBI agents and (CEB) DOJ prosecutors involved in the § 1001 and FARA takedown of Gen Flynn would probably have saved Trump a lot of grief over the next 7 1/2 years.

[Randal]

It's probably a mistake to do a bunch of felonies when law enforcement is out to get you!

[David Nieporent]

The reality is that Gen Flynn was forced out through a (misused) § 1001 perjury trap, and criminalization of FARA,

The reality is that "perjury trap" is something that corrupt people and their apologists say to try to excuse perjury. There is nothing remotely to indicate that the FBI wanted Flynn to lie. FARA had nothing to do with anything.

Again: Flynn was fired by the administration for lying to Mike Pence. The investigation and prosecution of Flynn came much later.

The same organization that helped concoct Crossfire Hurricane and RussiaGate, and fraudulently acquired the 4 FISA warrants against Carter Page, very likely in order to electronically surveil Trump and his inner circle (using the 2 hop rule),

You're just using talking points and buzzwords you don't understand. The "2 hop rule" does not allow any surveillance of anyone. It's about metadata, not content. Nobody "fraudulently acquired" the warrants against Page, not to mention that these warrants were all after Page left the campaign anyway. The Clinesmith email doctoring was about the very last warrant only, and even Trump's DOJ only claimed that the final 2 warrants shouldn't have been sought.

Bratt very much appears to be the one who set up the entire case, from the FBI having NARA request the documents from Trump, through having them (likely illegally) file a criminal referral with the DOJ (meaning Bratt), to his subpoena for the documents, through his refusal to give Trump’s attorneys extensions of tie to respond or allow rolling document production, to using that to justify his search warrant of MAL

More lies. There is no such thing as "filing a criminal referral," let alone it being "illegal." It is literally impossible for that to be "illegal."

The search of Mar-a-Lago was justified by the fact that Trump lied about the stolen classified documents. Nothing to do with "extensions" or "rolling production," all stuff you made up.

[Kazinski]

Well he did post it at 7:58 CDT, after cocktail hour, so there is that.

Its 8:30 here on the west coast now, and I just cracked my first beer, so I'm a little behind, but maybe I can catch up.

[BrotherMovesOn]

Surgically written.

[Brett Bellmore]

" “the lying liberal jurors” — Huh? I get “liberal,” but “lying”?"

They did catch one of the jurors lying in an effort to avoid being disqualified from the jury.

" “convict him for lying under oath just like they did with Michael Flynn” — but Flynn pleaded guilty; “they” did not convict him."

Please point this distinction out to everybody who claims Cohen was convicted...

[ReaderY]

Suggest Mr. Calabresi lay off the drink for a bit. Anything he has to say can be said more persuasively when sober.

[Intelligent Mr Toad]

Is this a lawyerly tone??? Please! This blog used to be mostly technical analysis of the law. You, Steve, sound like an actor auditioning for a bit role in an improv-performance based on Titus Andronicus, or something.

RE: "Any conviction obtained at the so-called "trial" of former President Donald Trump's alleged alteration of financial records will be reversed on appeal, if necessary by the U.S. Supreme Court, because ..."

Let me fix this for you: ... because the Supreme Court has a majority of right-wing partisans, at least two of whom have sold themselves to right-wing billionaires, and will do their bidding no matter what.

RE: "... altering financial records is only a crime in New York if you do it to conceal some other crime. Paying Stormy Daniels money is NOT a crime."

Well, I'm not a lawyer, but wouldn't that depend on how the money used to pay her was raised - ie whether the donors were warned that it might be used for that purpose? To raise money from donors who thought it were going to be used for ordinary campaign expenses - candidates travel costs, advertisement, and so on - and then use it to pay for a scandalous-sex-service worker's silence, smacks of fraud.

RE: "...The purpose of this whole case was just to give Daniels a megaphone to blast her allegations into nationwide."

Tell it to Bill Clinton. (And are you seriously suggesting that Stormy Daniels lacks a nation-wide platform, or would lack one, if this trial were not going on???)

RE: "The one thing that could really cause this case to destroy Donald Trump is if he testifies truthfully at this ... trial."

Then have no fear; none of his supporters need to worry about that.

[Sam Bankman-Fried]

Stormy’s nickname for Trump—3 Pump Trump. The best thing about her experience with Trump was that at least it didn’t last long. 😉

[Dr. Ed 2]

That's 3 more than FDR....

[Frank Drackman]

Well Stormy being a man might have something to do with that

[David Nieporent]

By the way, Prof. Adler and Prof. Kerr continue their weird practice of mocking Calabresi on twitter rather than (with one exception) posting here.

[bernard11]

Anyone who wants to yelp about Northwestern and Yale not having intellectual diversity on their faculties needs to read this asshole, and see what hiring nutcase right-wingers gets you.

[Sarcastr0]

I mean, Kerr and Adler are also on the right, I think.

But yeah, it’s not a riskless hire - there are also full on leftists that'll embarrass you as well, but the land between conservative and right-wing nutso is vastly more narrow.

[bernard11]

Kerr and Adler are also on the right, I think.

Whether they are or not, Kerr is plainly not a member of the nutcase wing, and Adler only occasionally wanders over the line.

[Sarcastr0]

Sounds about right.

[Roger S]

It appears that these Never-Trumpers do not like it if one of them says something in favor of Trump.

[Sarcastr0]

I do not believe that publicly engaging with this does much more than lend it unearned dignity.

They should let it sit like the turd it is and post about something else.

The twitter bit is weird though. Maybe better to handle over e-mail.

[bernard11]

You know, a Trump cultist complaning (baselessly) about other people lying is a fucking joke.

Who is this guy Calabresi? Would one of the resident mental health experts care to opine as to his sanity?

Would EV or some other conspirator care to explain why he is posting here? The entire blog should blush with embarrassment over this raving fool.

Something very strange is going on. I'd love to know what.

[Intelligent Mr Toad]

Calabresi is an offshoot of a very famous family of nationally prominent lawyers, including one who was Dean of Yale Law School at one time.

https://en.wikipedia.org/wiki/Guido_Calabresi

[bernard11]

Calabresi is an offshoot of a very famous family of nationally prominent lawyers,

Emphasis on the "off."

Funny. I thought conservatives absolutely hated the idea of people getting undeserved advantages because of their ancestors.

Only sometimes, I guess.

[Rev. Arthur L. Kirkland]

Your romanticization of Volokh and his blog has no reality-based foundation. Calabresi and Blackman were added to this blog by a guy who knew what he wanted. The everyday bigotry at this right-wing blog is the Conspirators’ choice, too.

[bernard11]

I don't know that it is "romanticization" of the past to think that things are worse in some respects than they used to be. Polarization has lot to do with this.

Was the past Edenic? No. I mean, we had Lindgren and Zywicki around, but I'd much prefer them to Blackman and Calabresi. At least they took up less space combined than Blackman.

Maybe EV, or Reason, or someone, decided that adding some lunacy is an acceptable price to pay to get some links.

I can't imagine anyone thinking that these guys are contributing to the discussion.

[Rev. Arthur L. Kirkland]

.

I can’t imagine anyone thinking that these guys are contributing to the discussion.

Does that say more about your judgment or Eugene Volokh's judgment?

[Da5id]

I kind of assume that many of the charges against Trump are politically motivated at this point. I've not voted for him in any election, nor will I, but I don't like lawfare and where it leads. But I don't come to a law focused blog for breathless polemics and ALL CAPS DRAMA. That is what Twitter and MS-NBC and FOX are for.

[SilverlakeBodhisattva]

Someone please tell Calabresi that, notwithstanding the belief of his idol that’s it’s a universal truth, at least here, STATING SOMETHING IN ALL CAPS doesn’t make it any more persuasive….

[David Nieporent]

THAT'S WHAT YOU THINK.

[Krychek_2]

I am one who believes that the lion's share of Trump's legal troubles are the result of Trump, after a lifetime of bad behavior, some of it criminal, finally had it catch up to him. And, I am also agnostic at this point on whether he is going to be convicted in this particular trial. Neither result would surprise me.

But, for the sake of argument, let us suppose that every word that Calabresi writes is true -- these charges are all nonsense, concocted by the Democrats as a form of political lawfare in a desperate attempt to keep Trump from having a second term. Suppose all of that to be true. What then?

Well, it's not entirely unreasonable to say that maybe the country can't take four years of someone whose primary agenda would political revenge, who has already said he wants to raze our institutions to the ground, who views personal loyalty as the only real qualification for a government job, and who chums with regimes like Russia and North Korea. The first time around there were enough Republicans willing to do their jobs and put country over Trump to keep his worst from happening, but we may not be so lucky the second time around, especially not after most of them got purged for their trouble. Further, the only reason he's even competitive is that the Democrats, as in 2016, managed to nominate someone even weaker and Joe Biden lacks the good sense to stand down.

Now, given all of that, maybe it's not entirely unreasonable for the Democrats to use the one tool they have left to keep that from happening. It's not merely that we disagree with his policies; it's that he poses an existential threat. Personally, I'd be happy to drop all charges everywhere if the man would simply retire to Mara Lago never to be heard from again.

[Roger S]

"who views personal loyalty as the only real qualification for a government job"

You have this backwards. Trump has a long history of hiring people who were personally disloyal. Betrayals from his appointments far exceed those of Obama and Biden. It would make more sense to say that Obama and Biden hired based on personal loyalty.

[Krychek_2]

Not intentionally he didn’t. And the second time around he’d likely be more careful.

And nice way to ignore my main point.

[Roger S]

Your main point is to state some entirely false premises.

You say " four years of someone whose primary agenda would [be] political revenge". That describes Biden much more than Trump. Trump threatened to charge H. Clinton, but never did. Biden has spent 4 years trying to jail Trump and other political enemies.

You say "chums with regimes like Russia and North Korea." You mean he wants to avoid war? Yes, in the Trump Presidency we have 4 years of peace and prosperity, and Biden turned out to be a warmonger.

"Joe Biden lacks the good sense to stand down." -- That is correct, but Democrat alternatives like Kamala Harris or Bernie Sanders are likely to do worse than Biden.

"he poses an existential threat." -- So he is Hitler and must be stopped by any means possible? This is just crazy talk. Trump was President for 4 years, and they were 4 pretty good years.

[Krychek_2]

No, Trump is not Hitler. Hitler actually had a coherent philosophy and world view, atrocious though it was. Trump has none beyond what's in it for him. If he hadn't been born into money he'd be running a three card monte scam on some street corner in Brooklyn.

You obviously don't understand how the criminal justice system works. The president lacks the authority to prosecute anyone; that decision is made by career prosecutors at the Justice Department. Trump's AG in all probability told him there was no case against Clinton, and the second time around he'll find an AG who will do as instructed. Biden, likewise, has nothing to do with the prosecutions against Trump; those decisions were made by career prosecutors. Biden certainly has nothing to do with the state prosecutions in New York and Georgia.

And if Biden stood down it would not be Kamala Harris or Bernie Sanders. It would be Gavin Newsom or Deval Patrick or Wes Moore or Gretchen Whitmer or Chris Murphy or Brian Schatz. There is no shortage of viable Democratic candidates; they just didn't run because Biden had it sewn up.

[Roger S]

In the American political system, federal prosecutions are in the executive branch. All prosecutions are supervised by Biden political appointees, including Garland and others. There are no career prosecutors making their own decisions. For a few years we had an independent prosecutor law, but that law has been abolished. The prosecutions against Trump had to be approved by Biden and Garland.

There are links between the US DoJ and the NY and GA prosecutions.

As a Trump supporter, I hope Biden does step down. Those alternatives would be easier to beat.

[Sarcastr0]

1. There are state charges, so going off about federal charges is an incorrect scope. "There are links" is corkboard and string conspiracizing. You don't blink an eye positing a vast liberal conspiracy of judges, juries, and prosecutors across multiple systems. Because you're angry and deluded.

2. You're also wrong about the federal system. I'm not in the DoJ, but I am a civil servant.
If a political tells you to do something that goes against the integrity of your position, there are whistleblower avenues both inside and outside the government open to you. And of course you can resign; plenty of legal jobs await someone at that level in the Justice Department.
Even the military has trainings about illegal orders. The unitary executive remains a right wing authoritarian dream more than a reality.

3. You think Biden is the Dem's strongest contender? You know nothing about how the liberal side of the aisle works - the saying is the left wants to fall in love, the right wants to fall in line.

[David Nieporent]

“There are links” is corkboard and string conspiracizing.

Just to be clear, the actual "links" that MAGA is talking about with respect to the Fulton County prosecution is that there were a couple of meetings between the DAs office and some administration officials in a two-year period. Nobody knows the content of those meetings, and nobody can explain why this would be bad in any case, even assuming the meetings were about the prosecution of Trump.

[Nige]

That's the problem for disloyal people who hire other disloyal people out of personal loyalty.

[Jerry B.]

So this is the, “Well, he didn’t break the law he’s being prosecuted under, but he did other bad stuff, so if he’s convicted, it’s only fair.”, argument.

[Sarcastr0]

Of course he doesn't concede that: "But, for the sake of argument, let us suppose that every word that Calabresi writes is true."

I don't like the argument, but don't pretend it admits anything like what it explicitly does not.

[Krychek_2]

It's not a fairness argument; it's a survival argument. When there is an existential threat, you do what you have to do to meet it. Desperate times call for desperate measures and all that.

And Sarcastro, I really don't like the argument either, but I have no trouble understanding why someone would make it. I suspect you would agree that there are some situations dire enough that the rules just simply get thrown out the window, and the question is whether this is one of them.

[Sarcastr0]

If our country has an electorate that will vote away our republic, we don't actually have a republic and any attempted stopgaps to pretend otherwise will not change that and risk making the collapse worse.

I'm open to the idea of not following the rules unto oblivion, but in this case the rules and our democracy are so intertwined I don't think it applies.

[Krychek_2]

But Sarcastro, if Trump is re-elected it won’t be the electorate that did it. He’s going to lose the popular vote. Again. If we end up with four more years of Trump it will be because the electoral college again forced him down the throats of an unwilling nation.

And that’s what makes me more receptive to that argument than I would be otherwise. We may lose our republic, not because we voted for it, but because our votes don’t matter. So it’s a bit rich to hear Trump supporters talk about how unfair and rigged the system is.

[Sarcastr0]

I’m not making a fairness argument or an argument from the majority. I’m talking about where things are right now.

You get enough to vote in Trump under the current rules, nonmajoritarian though they may be, then breaking the rules to put that off won’t actually put anything off; we’re at the critical mass for authoritarianism. It’s up to our existing institutions at that point, and we shouldn’t weaken them.

If you want to change where things are right now, that’s going to take something radical. Or, I predict (always dangerous!), waiting a couple of decades for the Millennials take the power slots from the Boomers (sorry, Gen X).

We just gotta struggle to hang on in the meantime.

Neither you nor I are in sufficient power for our opinions to really matter, so I'm happy to let reasonable minds differ - I'm an institutionalist to my bones and an incrementalist by general demeanor, so the above analysis is dripping with my own priors.

[Dan Schiavetta]

I agree.

I’m in favor of keeping the current rules. Trump and his supporters are the ones who want to break them.

[Mr. Bumble]

Cue the Beatles:

Revolution - The Beatles

Revolution Lyrics
[Intro]
Aah!

[Verse 1]
You say you want a revolution
Well, you know
We all wanna change the world
You tell me that it's evolution
Well, you know
We all wanna change the world

[Pre-Chorus]
But when you talk about destruction
Don't you know that you can count me out?

[Chorus]
Don't you know it's gonna be alright?
Alright
Alright

[Verse 2]
You say you got a real solution
Well, you know
We'd all love to see the plan
You ask me for a contribution
Well, you know
We're all doin' what we can

[Pre-Chorus]
But if you want money for people with minds that hate
All I can tell you is, brother, you have to wait

[Chorus]
Don't you know it's gonna be alright?
Alright
Alright

[Instrumental Break]

[Verse 3]
You say you'll change the constitution
Well, you know
We all wanna change your head
You tell me it's the institution
Well, you know
You better free your mind instead

[Pre-Chorus]
But if you go carryin' pictures of Chairman Mao
You ain't gonna make it with anyone anyhow

[Chorus]
Don't you know it's gonna be
Alright
Alright
Alright
[Outro]
Alright, alright
Alright, alright
Alright, alright
Alright, alright
Alright, alright
Alright, alright
Alright, alright!

[Frank Drackman]

You left out the "In" immediately after the "Out"
Great Tune, even if that Bella Lugosi guy did ruin it by tying it to Manson (Charles, not Marilyn) have to admit, it does make more sense than "Helter Skelter" did (I know, it's a slide)

Frank

[Brett Bellmore]

"You get enough to vote in Trump under the current rules, nonmajoritarian though they may be, then breaking the rules to put that off won’t actually put anything off; we’re at the critical mass for authoritarianism. "

Spoiler: If you're breaking the rules to prevent your adversary from legitimately winning under them because you think HE is an authoritarian, you've got a projection problem.

Maybe, coincidentally, your adversary is also an authoritarian, but that you are is beyond dispute.

[Sarcastr0]

I mean, I'm arguing roughly the same thing you are.

But it's pretty rich to see you arguing this when you want all sorts of authoritarian things put into place to combat the densely packed liberal bad faith you have sensed in in every institution.

From purging the federal government, to centralizing previously delegated powers to state government (only GOP states may apply), to the unitary executive, the list of you saying 'we gotta go at them strong before they fasc us' is not short.

[Brett Bellmore]

Sarcastr0, the executive branch is run by an elected President. Believing that the only elected officer in the entire branch gets to make the decisions isn't authoritarian, it's democratic.

[Sarcastr0]

It's neither democratic nor originalist.

[Brett Bellmore]

It's textual. The very first sentence of Article 2: "The executive power shall be vested in a President of the United States of America."

I understand that, as the federal bureaucracy are dominated by Democrats, you kind of like the idea of the bureaucracy being able to ignore Presidential orders; They're only going to do it during Republican administrations, after all. It's not something that has to bother Democrats.

But that doesn't make it "authoritarian" for the President to expect to be able to call the shots in his own branch of government. "Authoritarian" has to do with what he DOES with that power, not his having it, which is explicit in our constitutional structure.

[Krychek_2]

But that’s assuming fair rules. The current rules require Democrats to fight with one hand tied behind their back. And every time Democrats manage to win anyway, Republicans do what they can to change the rules so it won’t happen again. Give us fair elections and we’ll win them.

When the rules as blatantly disadvantage one party as do the electoral college and two senators per state, chanting “but that’s the rule” only gets you so far before people start fighting back with such tools as they have.

[Michael Ejercito]

What is wrong with two senators per state?

[Krychek_2]

It is projected that given the large number of people moving away from rural areas, in 20 years 35% of the population will be electing 70% of the Senate. What is even the argument that that's good policy?

[Brett Bellmore]

What does that have to do with two senators per state? Senators are state-wide offices, nothing hinges on where in a state people happen to live. Perhaps you mean that people are moving between states?

The population transfers actually happening work AGAINST your thesis. (Unless I misunderstand it, of course.)

It's true that the about half of the Senate held by Democrats represents about 58% of the population. But this is entirely due to California being a really large state AND Democratic. Subtract California from the statistics and it's pretty close to proportional.

The obvious answer would be to take the couple largest states, California and Texas, and split them up into several more average sized states each. But you'd still end up with just a larger Senate split down the middle; After all, the House is representative, and IT is split down the middle!

[Michael Ejercito]

Well, it’s not entirely unreasonable to say that maybe the country can’t take four years of someone whose primary agenda would political revenge, who has already said he wants to raze our institutions to the ground, who views personal loyalty as the only real qualification for a government job, and who chums with regimes like Russia and North Korea.
Our country needs exactly that kind of person as President.

[Hugh]

Oh dear, it's ALL CAPS time. Is Calabresi actually trying for the VP slot - I thought he was just after a DOJ position. He is making Blackman look like a paragon of subtlety.

[DaveM]

Trump is doing very well with this trial. So much free publicity! How many points in approval has this earned him, and how many millions in donations? If the Republicans p!ay they cards right, they can ride this too. Some have started by attending the trial and then opining on it to a waiting press corps, "in Trump's name", since he is ostensibly under a gag order.

Trump should never take the stand, of course, but by the same token he's got to want to stretch this circus out for as long as he can. "Never let a crisis go to waste" as one of Obama's apparatchiks once noted.

[Nige]

No-one was going to bother to try to get him to talk in a detailed way about policies anyway, I guess. Hope the rest of the country doesn't get utterly sick and tired of Trump and his supporters again, especially in the endlessly dreary context of how a he's being unfairly martyred.

[not guilty]

Professor Calabresi asserts, without citing supporting authorities:

Any conviction obtained at the so-called "trial" of former President Donald Trump's alleged alteration of financial records will be reversed on appeal, if necessary by the U.S. Supreme Court, because altering financial records is only a crime in New York if you do it to conceal some other crime.

The claim that altering financial records is only a crime in New York if you do it to conceal some other crime is a rank falsehood. New York Penal Law § 175.05 states:

A person is guilty of falsifying business records in the second degree when, with intent to defraud, he:

1. Makes or causes a false entry in the business records of an enterprise; or

2. Alters, erases, obliterates, deletes, removes or destroys a true entry in the business records of an enterprise; or

3. Omits to make a true entry in the business records of an enterprise in violation of a duty to do so which he knows to be imposed upon him by law or by the nature of his position; or

4. Prevents the making of a true entry or causes the omission thereof in the business records of an enterprise.

Where a person commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof, the offense is a felony per § 175.10.

New York courts' construction of New York penal statutes is not a federal issue reviewable by the U.S. Supreme Court. A challenge to a state conviction brought on the ground that the evidence cannot fairly be deemed sufficient to have established guilt beyond a reasonable doubt does state a federal constitutional claim. Jackson v. Virginia, 443 U.S. 307, 322 (1979).

"The relevant question is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id., at 319 (italics in original). A federal court faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution. Id., at 326.

The testimony of one witness can be enough to support a conviction, in that it is typically the province of the jury to determine a witness's credibility. People v. Calabria, 3 N.Y.3d 80, 82 (N.Y. 2004).

[Mr. Bumble]

“Where a person commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof, the offense is a felony per § 175.10.”
So what’s the “other crime” per the indictment?

[David Nieporent]

Why do you think that such an allegation would be found — or would need to be found — in the indictment?

[Mr. Bumble]

Where would or should they be found? How do you defend against a charge that isn't specified?

[Commenter_XY]

Bumble: The charge was specified in Bragg's charging doc last year....175.10

Here is my understanding. Under 175.10, Bragg does not need to prove a crime, you only need to prove the POTUS Trump could have had wrong intent to influence a NY election, and that is sufficient. Did POTUS Trump pay off Stormy to stave off embarrassment, and/or swing an election? All Bragg has to show is per 175.10, POTUS Trump could have intended to swing an election, along with staving off embarrassment. And that is enough, it shows intent. Under the letter of the law, POTUS Trump is guilty; that is what Bragg is arguing.

Net Net: Bragg is showing the NDA was intended to wrongly influence an election in NY state, regardless of any other personal motive POTUS Trump might have had.

Oh, and the jury is still out on whether POTUS Trump will have tax charges. Another poster mentioned the tax stuff is a sleeper issue that might 'awaken'.

loki13 posted a link to an article that laid out the case rather well, from a structural standpoint. It made for interesting reading.

All I will say: There are many states that can write amorphously worded statutes like 175.10 (criminalizing intent), with motivated prosecutors willing to try a case.

[Mr. Bumble]

Woulda, shoulda, coulda all seems like it has no place in a court of law.
How do you defend against "fill in the blank" charges?

[Michael Ejercito]

I mean, what is a wrong intent to influence an election.

[Brett Bellmore]

The charge is aggravated intent to win an election while a Republican.

[Mr. Bumble]

Off with his head!!

[John Rohan]

All Bragg has to show is per 175.10, POTUS Trump could have intended to swing an election, along with staving off embarrassment. And that is enough, it shows intent. Under the letter of the law, POTUS Trump is guilty; that is what Bragg is arguing.

I would like to ask Bragg – what is illegal about using lawful means to attempt to influence an election?

Candidates buy new clothing, get a haircut, spend money on advertising to improve their image to “influence an election”. Nothing illegal about it.

It wasn’t labeling the transaction that was supposedly going to influence an election, it was the (perfectly legal) payment to Daniels to get her NDA that was supposedly going to influence an election (even though the payment was made AFTER the election, but let’s not get bogged down in inconvenient facts).

[not guilty]

In pretrial briefing the prosecution identified four proposed other crimes that were intended to be concealed: (1) Federal Election Campaign Act (“FECA™); (2) N.Y. Election Law § 17-152; (3) Tax Law §§ 1801(a)(3), 1802; and (4) Defendant’s intent to violate PL. §§ 175.05 and 175.10 by intending to commit or conceal the falsification of other business records. In a comprehensive and detailed pretrial order, https://s3.documentcloud.org/documents/24485367/31824-merchan-ruling-on-trump-motion-in-limine.pdf , Judge Merchan ruled that the prosecution could argue three such “object offenses” to the jury:

The Court has considered the respective arguments of the parties and finds that the evidence presented to the Grand Jury for the first three theories was legally sufficient to support the intent to commit the “other crime” element of Falsifying Business Records in the First Degree. However, the Court cannot make the same finding as to the fourth theory. The People are therefore precluded from arguing this fourth theory to the jury. Nonetheless, the People are permitted to present evidence at trial that stems from the fourth theory, to the extent that the evidence advances any one or more of the first three theories.

[David Nieporent]

Where would or should they be found? How do you defend against a charge that isn’t specified?

Once again, the charge was specified. Trump has been on notice since at the latest September 2023.

More generally: if nowhere else, it would be found in response to a request for a bill of particulars — NY CPL § 200.95.

 (a) “Bill of particulars” is a written statement by the prosecutor specifying, as required by this section, items of factual information which are not recited in the indictment and which pertain to the offense charged and including the substance of each defendant’s conduct encompassed by the charge which the people intend to prove at trial on their direct case,

(b) “Request for a bill of particulars” is a written request served by defendant upon the people, without leave of the court, requesting a bill of particulars, specifying the items of factual information desired, and alleging that defendant cannot adequately prepare or conduct his defense without the information requested.

2. Bill of particulars upon request.  Upon a timely request for a bill of particulars by a defendant against whom an indictment is pending, the prosecutor shall within fifteen days of the service of the request or as soon thereafter as is practicable, serve upon the defendant or his attorney, and file with the court, the bill of particulars, except to the extent the prosecutor shall have refused to comply with the request pursuant to subdivision four of this section.

This is basic NY criminal procedure. I don't actually expect people who aren't NY lawyers to know this stuff. But I do expect people who aren't NY lawyers not to pretend that they know this stuff and therefore that there are irregularities, when there aren't.

[John Rohan]

Kind of hard for the defense to address these accusations in their opening statement if they don't even know what they are.

The trial isn't just about whether Trump is guilty of the misdemeanor of falsifying business records, it's also about whether that charge can be upgraded to 34 felonies (or at least it should be)

[Roger S]

The trial is mostly about trying to smear Trump as being unfaithful to his wife, and to prevent him from campaigning for a month.

[David Nieporent]

Kind of hard for the defense to address these accusations in their opening statement if they don’t even know what they are.

They do know what they are. This was litigated by Trump last year.

[not guilty]

"Kind of hard for the defense to address these accusations in their opening statement if they don’t even know what they are."

If only there was such a thing as, you know, pretrial briefing and orders!!

https://s3.documentcloud.org/documents/24485367/31824-merchan-ruling-on-trump-motion-in-limine.pdf

[Roger S]

There is not even one witness to testify that Trump falsified a business record, or that Trump had any criminal intent. Not even Cohen says those things.

[Randal]

Are you for real?

[Sarcastr0]

It's Phyllis Schlafly's kid. He's a nepo-baby but for delusional bigoted extremism.

[Rev. Arthur L. Kirkland]

Son of a bitch!

[LawTalkingGuy]

Hahaha for real?

Although even in the world of bigoted-delusional extremism, idk if he counts as a nepo-baby since he has a blog no one reads and comments on other blogs. If he was a true nepo-baby they’d at least give him a Newsmax show.

[Vryedni]

I always confuse him with his brother Andy, who IIRC used to comment here too. Which one thinks the Theory of Relativity is bullshit, and which one says the Theory of Relativity may be OK, but Einstein generally (no pun intended) is a fraud?

[Sarcastr0]

I think this one is an engineer and the other one is the hilarious conservapedia crank.

[Brett Bellmore]

Assume he's a hallucination, for the sake of argument. Is he actually wrong?

[Dan Schiavetta]

It’s not necessary for a witness to admit, “yes this was a falsified record”, or to testify that Trump said, “ I’m doing this with criminal intent”. It’s up to the jury to reach those conclusions, after the prosecution through cross examination has established them.

[Roger S]

People keep saying that NY state allows convicting people without actually proving the elements of the crime. We will see about that. A fair judge would dismiss the case, if the prosecution failed to present evidence for each element of the crime.

[Sarcastr0]

No one has been saying that.

[Randal]

It hardly needs to be said, but yes, there has been lots of testimony that Trump falsified business records with criminal intent.

[Commenter_XY]

NG, let me ask you a question. If you were Blanche, would you put POTUS Trump on the stand? I believe you'd say 'Hell no'.

O/T: I don't get the all-caps thing in the blog title.

[Dan Schiavetta]

The idea that Trump would, under pressure, behave convincingly and truthfully, is bizarre. Think of all the traps Blanche would set that Trump would stupidly fall right into, all the contradictions he would point out, all the lies he would expose. It could easily take up three days. And for once Trump (a man who shrinks from face-to-face confrontations) wouldn’t be able to stomp out of the room like a petulant child.

I would absolutely love to have Trump on the stand.

[Dan Schiavetta]

Whoops! Sorry, messed up. Just got out of bed!

[Frank Drackman]

TMI

[not guilty]

If I were Blanche, I would strongly advise Trump against testifying. But that decision is personal to the accused and cannot be made by counsel.

[Dan Schiavetta]

For Trump to testify would take courage, a quality he lacks. He'll decide not to, and blame it somehow on his opponents.

[Frank Drackman]

So if he doesn't he's a coward, and if he does he's an Idiot, love how peoples who closest they got to combat was fondling their GI Joe dolls are experts on who has courage. But you're right, Sleepy Joe has it, that marching with Mandela at Selma? Saving Chief Big Foot's Bacon at Wounded Knee? Serving with Danang Dick Blumenthal at Khe Sahn??

Frank

[Kazinski]

I didn't realize Trump did his own books.

That would be surprising, the testimony during the trial was was that in 2017, when Cohen sent the invoices and then the payments were made to Cohen, Trump had an airtight alibi. He was in the oval office and Don jr. and Eric had taken over the operations of the Trump Organization.

McConney, Trumps controller testified he asked Cohen to send invoices so he could pay him, and used the invoices to code the entries. Trump wasn't a part of that conversation, he was in the oval office by that time.

[Sarcastr0]

At this late date, you think Trump must personally have created all the business records personally?

Come on, Kaz. You've been following closely enough you shouldn't be making that kind of nonsense mistake.

[Brett Bellmore]

He must have at least personally directed that they be created in a fraudulent manner, Sarcastr0.

[Zarniwoop]

The defense should feel free to call any of Don Jr, Eric, or even DJT to testify to that effect, then.

It will no way no how ever happen.

[Mr. Bumble]

moved

[NvEric]

Here's a garbage paper based on very incomplete knowledge and thus invalid analysis and conclusion !

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID4830136_code3298377.pdf?abstractid=4828096&mirid=1

While Steve's post here is sub par, there's too many troll-types with no worthwhile input. These troll-types suddenly appear to besmirch and offer no rational reply of substance. Free speech to lower the standard is unwanted and degenerate.

[Dr. Ed 2]

I prefer to think of what a re-elected President Trump could do to punish New York. Killing the rail tunnel project comes to immediate mind but what else could he do?

[Estragon]

You’re indulging in revenge fantasies? Wow, so surprising

[Kazinski]

Well he does need a follow-up to killing the local and state taxes deduction on the federal return.

[Sarcastr0]

Why not nuke it, Ed?

[Dr. Ed 2]

Hmmmmm......

[bernard11]

Yet another useful contribution from the murderous wannabe Dr. Ed, dragging yet another rotten fish into the marketplace of ideas.

[Dan Schiavetta]

inventive phrasing!

[Estragon]

This cannot be real. “Lying liberal jurors”?

Is this guy really teaching con law to 1Ls? Has he made the holy pilgrimage to center street? Has he read Trump-prepared remarks for the cameras? How many blue suits and red ties does he own? And the attempt to rewrite history surrounding Q-addled lunatic Mike Flynn is very troubling. God help us all if that guy gets anywhere near the White House or DOD.

Pretty surprisingly unserious for someone from the upper echelons of legal academia.

[Rev. Arthur L. Kirkland]

Just another day at a bigoted, flailing, bigoted, superstition-addled, bigoted, old-timey, bigoted right-wing blog with a largely illusory academic veneer.

Carry on, clingers.

[Frank Drackman]

Like that BBD you Kling to every night?

[Rev. Arthur L. Kirkland]

English. Learn it and use it.

You are no problem replacement (and the culture war) won't solve.

[Frank Drackman]

too late MFer, I've already been replaced, a few times in fact.

[OverThePond]

A lot of virulent language here. To be fully fair a lot of it is coming from the virulent language used by Prof. Calabresi. Rather than attack him though, I’m minded to recall how this whole state of affairs ended up as it is – and that they call for plenty of sympathy for a clearly intelligent legal academic who seems to have ended up as Trump’s latest ad-hominem peddler.

I don’t think that it’s inherently unreasonable to defend Donald Trump by advancing a reasoned legal theory. Doing it by unqualified accusations of people lying, however, is questionable at best.

It’s a shame that Stephen Calabresi ended up writing this, and I hope we can find his old self again.

[Moderation4ever]

Of course, Trump should not testify, this is basic litigation 101. You should only have the defendant testify if he can help your case and Trump cannot help. That means he can only dig himself in deeper. The case maybe smutty, but Trump is not help making it less so by his antics. One can argue whether this case should be brought, but the DA does seem to the evidence necessary for a conviction and I am not sure about the success of an appeal.

[John Rohan]

At the same time, if I was a juror, I would not be impressed with a defendant that wasn't even willing to speak out in his own defense.

[not guilty]

"At the same time, if I was a juror, I would not be impressed with a defendant that wasn’t even willing to speak out in his own defense."

If you disclosed that view during voir dire, you would be disqualified from serving as a juror in any criminal trial.

[Frank Drackman]

Show me the man, I’ll show you the crime, I just thought that up myself, or maybe John Louis told me when we were marching to Selma

Frank

[Don Nico]

How can folks waste so much time on Calabresi's craziness.

[Dan Schiavetta]

About 40% of Americans digest stuff like this daily, to the exclusion of other sources, and think it’s the news. One virtue of VC is its connection with reality. And now it’s been invaded by MAGA “alternate facts”.

[Moderation4ever]

But there are still plenty of range in VC opinions and that is seen in the response to the piece.

[Dan Schiavetta]

I’m talking about the VC’ers themselves and their posts. I assume Eugene doesn’t monitor every single post, he just lets in those who post, such as Calabresi who is a recent addition, but I hope this kind of post catches his attention.

[Mr. Bumble]

You mean like the adversarial nature of our legal system?

[Rev. Arthur L. Kirkland]

.

How can folks waste so much time on Calabresi’s craziness.

Take that up with Eugene Volokh.

Do you have his new address? He blogged his way off campus.

[Bored Lawyer]

This post is nuts, but it happens to arrive at the correct conclusion: Trump should not testify.
And it's also a springboard for discussion of issues in the trial of The People v. Donald Trump.

[Rev. Arthur L. Kirkland]

"Taking the Fifth? Disgraceful"
-- Trump

"The mob takes the Fifth. It's terrible."
-- Trump

"Taking the Fifth is horrible."
-- Trump

"If you're innocent, why are you taking the Fifth Amendment?"
-- Trump

"I take the Fifth."
-- Trump,, dozens of times.

[Frank Drackman]

You left out the part where he said Barry Hussein was clean! articulate, a real Storybook (man!)

Frank

[Bored Lawyer]

Thought question. You are on the jury. You take your oath seriously, and will only convict Trump if the prosecution proves its case beyond a reasonable doubt, regardless of your views of Trump personally or politically.
You conclude that Cohen is liar that has told so many versions of his story that nothing he says can be relied upon.
Does the prosecution still have a case?

[Sarcastr0]

Cohen is there to establish Trump's direct knowledge and connection to the payment.

There have been other people who have provided corroboration that Trump asked about campaign stuff all the time, that he was a micromanager, that he was all about where's the money going.

I'm not following the trial nearly closely enough to put myself in the shoes of a juror, that's a rather overwrought hypo.

But it's not unreasonable to find the burden of Trump's personal involvement has been met circumstantially elsewhere.

[Mr. Bumble]

Douche speaks, spews jank.

[Dan Schiavetta]

Often the prosecution has to depend on dodgy witnesses. They still get convictions, and that survive appeal. The jury is allowed to credit testimony even from a proven liar, even testimony that contradicts what he earlier said, unless the testimony is to something that is physically impossible.

[Mr. Bumble]

Ditto on my comment above for Cohen's "testimony".

[LawTalkingGuy]

Okay but that’s not jank. That’s a completely accurate summary of how criminal jury trials work.

[Mr. Bumble]

Fair enough.

[Bored Lawyer]

Which avoids my question, but thanks for the deflection.

[Sarcastr0]

He wasn’t replying to you.

[Roger S]

"Cohen is there to establish Trump’s direct knowledge and connection to the payment."

Sure, Trump paid the money. But the DA needs to prove that the records were falsified to cover up another crime. Cohen did not testify that the records were falsified. No, the records were just as Cohen requested. And Cohen did not testify that any crime was being covered up. So I do not see how Cohen's testimony helped the case against Trump.

[Sarcastr0]

It's almost as though there were other witnesses than Cohen.

You could look something up, but you clearly prefer to be ignorant so you can fill in the blanks yourself.

[Brett Bellmore]

Yes, the defense has other witnesses, and the prosecution also had a prostitute.

[Sarcastr0]

The defense has no witnesses.

You maybe should read up on the stories you're going to confidently opine on.

[Kenneth Almquist]

“Cohen did not testify that the records were falsified.”

Cohen testified that he paid $130,000 to Stormy Daniels and that Trump later agreed to pay $130,000 to reimberse Cohen for the payment. If that payment had been recorded as a reimbersement of money Cohen had paid, Cohen would not pay any income tax on it. However, Trump wanted to record the payment as a payment for legal services, which would mean Cohen had to treat the money as income, and pay income taxes on it. According to Cohen (whose testimony on this point was backed up by hand-written notes by Allen Weisselberg), Trump agreed to pay Cohen an additional $130,000 to cover the income taxes Cohen would have to pay in order to allow the reimbersement to be misrepresented.

It is true that the prosecution proved that the records were falsified by entering the records into evidence so that the jurors could see for themselves that the records contained false information. However, to reach that conclusion, the jurors need to know that the payments were not really for legal services--something that Cohen testified to. To convict, they need to know that Trump was involved in the falsification of the records, and the testimony that Trump agreed to pay a significant amount of money to allow the records to be falsified is one way to establish that.

[Moderation4ever]

If you are a juror and you take your oath seriously then the prosecution has provided you the evidence for a conviction. What I think the defense is looking for is the juror who thinks the case is too frivolous and should not have been brought. That require going outside the juror's oath.

[Frank Drackman]

So how many hours were you in the Courtroom? or what network is showing the full trial, so I can see the evidence and hopefully not be as uninformed as you. I hear there’s this thang called “Jury Nullification”, often happens when Bruthas(and sistas) sense the Man is trying to keep a Brutha(or Sista) down, does the name Marion Barry ring a bell?

Frank

[Roger S]

No, such a juror could honestly vote not guilty without violating his oath. In fact, maybe the oath requires a not guilty verdict.

[Bored Lawyer]

You are getting ahead of the game. That the prosecution puts a case sufficient for a conviction is not the test. The jury has to weigh and assess credibility. The fact that a jury COULD believe one witness does not mean that they SHOULD or DO believe him or her.

That was the point of my question. Cohen is a serial liar, and from what I can tell, the defense has done a good job of showing him to be one. A jury is within its rights to say, I don’t believe him, or I can’t tell whether he is telling the truth or the truth is one of the contradictory stories he has told somewhere else. So I can’t credit his testimony against Trump.

So without Cohen is there a case? I doubt it, but who knows. Maybe inferences can be cobbled together from other evidence.

[windycityattorney]

So assume Cohen is lying. All the other witnesses with any familiarity with this whole scheme still say Cohen was paid 400k+ to reimburse him for paying stormy 130k.

Because the defense wouldn't stipulate to anything, we got the accounting clerk to testify that each month, she mailed checks to Trump at the White House to be signed and returned. They even clip a little invoice to it so Trump knows what he is paying for. But she didn't actually send them to the white house, she sent them to Trump's bodyguard. Because ya know...white house mail is scrutinized and they didn't want this mail scrutinized.

McConney testified Cohen was paid. The accounting clerk testified he was paid and Trump signed the checks. Cohen testified he was paid. There are likely others I am missing.

So if Cohen wasn't doing Trump's legal work in 2017 and wasn't a part of the administration, what did Trump pay 400k+ to Cohen for?
Maybe the defense will explain it.

[Stephen Lathrop]

BL, I cannot conclude Cohen cannot be replied upon without an alternative explanation of all the documentary evidence which Cohen's testimony corroborates. You seem to suppose that doubt about Cohen eliminates the documentary predicate. That cannot be right. Instead, you have to accept the documentary predicate, and use that to judge Cohen's credibility, in this instance.

[iowantwo]

BL, I cannot conclude Cohen cannot be replied upon without an alternative explanation of all the documentary evidence which Cohen’s testimony corroborate

The problem is there is no fraud of the records. The bookkeeping misdemeanor, Only applies to records required by the State of New York
The personal check register is not required by the State.

[Stephen Lathrop]

You failed to mention the most spectacular piece of documentary evidence in the case. I assume you don't know about it. Maybe Fox didn't want you to know.

[iowantwo]

A personal check register is not a "record" required by the State of New York

[Tax Litigator]

Two points:

1. The danger for Trump is not perjury but the jury can then assess his credibility beyond his courtroom antics (a form of testimony that the jury can observe) in deciding whether he is guilty or innocent in this case. Indeed, only if he wanders into clear lies that he knows are provably untrue beyond a reasonable doubt could he be convicted of perjury or, in reality, even charged for perjury (which is why so few perjury charges are ever brought even though perjury is not uncommon). I don't doubt that, untethered, Trump wanders into that lying territory all the time when he is not under oath and subject to penalties of perjury. But, he himself could avoid perjury charges by not clearly lying under oath. So, I stand by my statement that his risk in testifying is in the case to be decided by this jury. I am confident that these jurors will adequately assess his credibility on the key issues related to his guilt or not guilt (jury does not determine innocence) of the charges against him.

2. Why does Calebresi and the right wing impugn the instruments of justice in this country? The jurors will decide guilt or innocence. I am aware of no credible claim that these jurors are biased against Trump or otherwise not serving the justice system in the best traditions of the country. Yet, apparently because those jurors will do that, Calabresi attacks the system, and indirectly those jurors about whom he knows nothing. I am saddened that his law students have to be exposed to such claims that are so corrosive to the fabric of our country. We should be upholding the traditions of our country. Judgment by jury is one of those traditions that has served us well, and needs to be supported rather than attacked for political reasons unrelated to justice.

[Roger S]

If Trump testifies, the DA can for details about sexual relations with Daniels. If he says anything that differs from her account, he can be charged with perjury.

[Tax Litigator]

1. Sure, any grand jury led by a prosecutor can charge any crime they choose to do so. But the grand jury system has worked well, perhaps not perfectly, but well over our history and tradition. So, even if a prosecutor were politically motivated, there is no assurance that a grand jury will charge. (I do know the hyperbolic ham sandwich claim, which is true only as hyperbole.)

2. In the trial on guilt or not guilt, the jury makes the decisions rather than the prosecutor. And, that check on prosecutors, has historically served us well to prevent unfounded charges. I say well but not perfectly. I am not sure of the standards state prosecutors must meet for seeking charges, but I do know them in the federal system. I doubt that, in the federal system, except for the most blatant of lies on point to a critical issue in the case, prosecutors would not seek an indictment because a jury not guilty verdict in the perjury case would be so publicly damning. That is the reason that, in spite of perjury being a common feature in trials, perjury charges are rarely prosecuted. The check in the system is to hold the liar responsible in the case in which the perjury is uttered. Here, if Trump lies (should he take the stand), his practical risk is losing the case--a finding of guilt in this case rather than in an imagined follow-on perjury trial.

[Roger S]

The famous baseball player Barry Bonds walked into a perjury trap in a grand jury, and got charged with perjury. There was no clear-cut lie. He convicted by a jury, and exonerated on appeal.

[Frank Drackman]

Only thing I liked about Barry Bonds was he's a lefty.

[Tax Litigator]

I am not that familiar with the Barry Bonds case, but Wikipedia says that, although he was charged with perjury, he was acquitted of the perjury change (that's what juries do with flimsey evidence that is not a flat out provable material lie beyond a reasonable doubt (and why prosecutors rarely prosecute perjury). Bonds was convicted (according to Wikipedia) of obstruction of justice, a conviction that was later overturned. My only point was that every prosecutor knows how difficult it is to get a perjury conviction and that is why prosecutors rarely charge perjury despite the prevalence of perjury in trials and other court proceedings. The inference I draw from that is the Trump can testify without real fear of perjury so long as he does not tell flat out lies provable beyond a reasonable doubt. His fate is in his own control if he testifies even close to the truth and he can avoid a perjury charge or conviction by avoiding the flat out provable lie. I won't speak to whether Trump is capable of distinguishing between truth and fiction, except to say that he often appears to live in a fantasy world untethered to truth. So, his lawyers are probably concerned about what Trump would do. But that does not mean that Trump is not in control of whether he tells the flat out lie provable to be an intentional lie beyond a reasonable doubt.

https://en.wikipedia.org/wiki/Barry_Bonds_perjury_case

[Brett Bellmore]

What you're failing to take into account is that a reasonable prosecutor wouldn't have brought the present charges, either. He's not dealing with a reasonable prosecutor, he's dealing with a guy on a crusade.

If he testifies, and doesn't stick to stuff that's as unambiguously true as "the sun rises in the East", he's going to get hit with perjury charges. If they fall apart after the election, what does the prosecutor care?

[Tax Litigator]

With due respect, I don't think the evidence establishes that a reasonable prosecutor would have not brought these charges. Implicit in my above comments is that the grand jury and ultimately the jury in the criminal trial serves as a check on prosecutors acting inappropriately. If you are correct, this criminal jury may ultimately do that by reaching a not guilty verdict. (Not guilty is not the same as declaring the defendant innocent.)

I am not sure what experience you have in real world criminal prosecutions and trials. I have some real world experience in the federal area. Perjury is not impossible to prove, but it is very difficult to prove which is why perjury charges are rare and, as in the Bonds case, convictions are rare. I will rest again on my statement that the real risk to Trump is how his testimony would affect the case in which he testifies rather than some imagined perjury case in the future.

[loki13]

Good thoughtful comments.

The reason that Trump will not testify is not because of perjury, but because (1) it is unlikely that any cross-examination would go well for him, and (2) if he testifies, it would likely open the door to additional unfavorable evidence.

In addition, from a public relations standpoint, there is no upside. If he testifies, it can only go poorly. On the other hand, those who support him aren't going to be bothered by him not testifying.

(Finally, from just a general point of view, his attorneys would be idiots if they were advising him to testify. As DMN has correctly stated, they are likely using every argument in their arsenal to make sure he doesn't testify.)

[David Nieporent]

using every argument

I believe the phrase I used was "push him down the staircase at the courthouse." But yes.

To be fair, criminal defense lawyers almost never want their clients to testify, even clients a lot more sane and controllable than Trump. Unless the defendant's testimony is crucial to establishing a defense (one example might be a defendant who is claiming self-defense), nothing good can come from his testimony

[Mr. Bumble]

See E. Jean Carroll jury.

[Nige]

Oh yeah, Trump's a rapist.

[Frank Drackman]

It's Rape-ist, and like "45" I wouldn't fuck Easy Jean Carol with your Robot Needle Dick.
Wow, that wasn't kind or gentle, so charge me

Frank

[gVOR08]

It may be that Bragg's prosecution is politically motivated. At least to the extent that he's an elected prosecutor and his constituents expect him to enforce the law without fear or favor of Trump. And if Bragg's, and Willis', and Smith's, and James' prosecutions are politically motivated, Trump sure made it easy for them. But I don't entirely blame Trump for this current situation.

Trump has long been rumored to have mob ties, U. S. and Russian, and to have been involved in bribery and money laundering. Before the 2016 election Trump and his companies had been subject to over a dozen investigations. In several they paid fines or accepted settlements. The University and Foundation were under investigation, resulting after the election in both being shut down and large settlements after the election. None of this was a secret. But Republican voters, abetted by a feckless press, ignored all this and nominated, then elected, someone they should have realized was likely a career criminal. If y'all voted for Trump, this mess is your fault.

[Roger S]

Maybe so, but Trump turned out to be a much better President than Biden. I would much rather have four more years of Trump, than Biden.

[Rev. Arthur L. Kirkland]

It's natural that an obsolete, worthless, disaffected, superstition-addled, right-wing bigot would prefer Trump.

[Frank Drackman]

So you're out of the closet at last? Sure you feel much better, but so we can fell better, please go right back in after you vote.

[loki13]

Since I have mentioned this before, I will say this again. (This is the third time I have said this in a thread).

You cannot have intelligent discussion when people keep raising the exact same, wrong, points that have been repeatedly shown to be incorrect.

For example, it's a completely incorrect statement for those to keep saying that Trump (or you) don't know what the "another crime" is. If you keep saying it, you are committing to looking as stupid as Lauren Boebert, and that's not a great look (especially at Beetlejuice).

This was already adjudicated. There are three-
FECA, 17-152, Tax Law 1801(a)(3), 1802.

Okay? Are we good?

Anyway, someone needs to take the strong drink and the keyboard away from Calabresi. Please.

[David Nieporent]

You cannot have intelligent discussion when people keep raising the exact same, wrong, points that have been repeatedly shown to be incorrect.

Are you new to the Internet?

[Josh R]

Yes, but I keep saying I am not aware (*) that the prosecution has clued the jury in (apart from a brief mention of election fraud during opening arguments). And it's the jury that has to be convinced beyond a reasonable doubt that the records were falsified to conceal an intent to commit one (or more) of those crimes.

(*) Please prove me wrong that the prosecution hasn't royally effed this one up.

[loki13]

The prosecution merely has to provide the evidentiary basis (and again, this is an intent issue).

It's not like they provide a legal expert.

The closing and the jury instructions are what matters.

[Josh R]

It seems to me the prosecution has done an excellent job of providing the evidentiary basis for Trump falsifying records to conceal hush money payments in order to improve his chances of winning the election. They better have a great closing argument as to why that suffices to conceal an intent to commit one (or more) of those three crimes.

[loki13]

"It seems to me the prosecution has done an excellent job of providing the evidentiary basis for Trump falsifying records to conceal hush money payments in order to improve his chances of winning the election."

.... I mean, while you might disagree with the campaign contribution issues, that was the gravamen of the FECA and NY Election Law charges.

It's really going to go to closing and jury instructions, but that was what they had wanted to show. *shrug*

(I honestly am in the weeds on the tax issue).

[iowantwo]

…. I mean, while you might disagree with the campaign contribution issues, that was the gravamen of the FECA and NY Election Law charges.
FEC laws are DoJ original Jurisdiction. Beside the fact that Trump can give unlimited amount to the campaign. But the money never touched the campaign. It was personal execution of an NDA. No crime no coverup.
NYS election law applies to State and local candidates only.

[loki13]

Wow.

You just made a whole bunch of statements.

Did you even know that the statements you have made were already determined by a court? In fact, there have been MULTIPLE determinations by MULTIPLE courts.

You really don't bother letting the facts and the law get in the way of your unsupported assertions and regurgitated talking points, do you?

Seriously, look stuff up (the actual documents and court filings) or at least get better sources for your information.

[iowantwo]

It seems to me the prosecution has done an excellent job of providing the evidentiary basis for Trump falsifying

There is no record to falsify.

The misdemeanor indictment only applies to records that are required to be kept by laws of New York.
Trump is under no obligation to record any of his personal expenses.
There cannot be a crime for a check register entry.

[David Nieporent]

The misdemeanor indictment only applies to records that are required to be kept by laws of New York.

Completely false. I have no idea where you got that idea from, but it's not from the statute.

[iowantwo]

The Statute does not apply to personal papers.
ONLY to records required by the State of New York

[loki13]

Please .... just stop.

If you don't know, or don't understand something, then don't assert it.

Seriously, this is why (as I have repeatedly stated) there aren't any actual good conversations about this.

The few people who might be willing to discuss and analyze the REAL issues have been driven out by the sheer stupidity of others, repeating the same wrong points that keep getting raised and knocked down repeatedly.

[iowantwo]

The State has no jurisdiction over your check register

[loki13]

Wow.

Okay. You keep on thinking that. But that's not what the indictment or the facts are. It must be interesting to be so confident about things you don't bother educating yourself about!

[Roger S]

Yes, the DA has listed some possible crimes, but has not alleged any of them, and has not given evidence towards the elements of proving any of them.

The plan is to convince the jury that Trump is a bad guy because he was unfaithful to his wife, and let the jury use its imagination to decide that Trump was intending to commit another crime and cover it up, even though different jurors might imagine different crimes.

[Josh R]

The judge will issue instructions to the jury that they can't use their imagination to conclude Trump falsified the records to conceal an intent to commit another crime (*). It requires the prosecution to have proved that assertion beyond a reasonable doubt. Nor will those instructions permit jurors to imagine what the other crimes are.

(*) A guilty verdict does not require that Trump intended to commit the other crimes. It suffices that he is covering up for someone else.

[loki13]

" A guilty verdict does not require that Trump intended to commit the other crimes. It suffices that he is covering up for someone else."

Correct. A conviction would not require that Trump either committed, or was convicted, or the other crimes. There is not requirement that the other crimes be committed.

The requirement is that the defendant act with the aim to commit another crime, and intended to conceal it (through the falsification of business records).

[loki13]

"Yes, the DA has listed some possible crimes, but has not alleged any of them"

No.

The DA listed four crimes. The judge removed one. The DA is moving forward on three. Seriously, if you don't know something, either stop talking, or educate yourself.

[Michael Ejercito]

The judge should have quashed the indictment because the alleged acts were not crimes.

[Josh R]

Isn’t that for a jury to determine?

[Michael Ejercito]

A jury is to decide if the alleged acts actually happened.

A judge can and mustdismiss the indictment if the alleged acts do not constitute a crime at all

Let us consider a rap star being indicted for multiple murders and the allegation is that he sang songs, which inspired children o join gangs, some of who committed murder. A judge can and should dismiss these murder indictments, because even if it were proven beyond any doubtthat teenage gangbangers who murdered others in drive-by shootings joined gangs because they were inspired by the defendant, it would not mean the defendant is guilty of murder.

For a real example of an indictment being dismissed due to the alleged acts not being crimes, see here.

https://www.texastribune.org/2016/02/24/texas-high-court-dismisses-rick-perry-indictments/

[Josh R]

A judge could so. But, I don't see how in this case he can conclude the alleged acts cannot possibly constitute a crime.

[Michael Ejercito]

It is predicated on the idea that paying off Stormy Daniels was a crime.

[Josh R]

No, it is not. It is predicated on those payments being, or are associated with, campaign finance or tax law violations.

[Roger S]

Right, the DA listed some crimes. But Trump is not charged with any of the crimes, and the DA says he does not need to prove any specific crime. He is just hoping that Trump is sufficiently slimed that each juror will think that Trump could have intended to commit one of them. Or maybe that Cohen committed one and Trump wanted to cover up for him. Or something.

[loki13]

No.

Seriously, you are just repeating, and spouting, the same bizarrely incorrect things that you heard and think are correct in order to argue the same wrong points.

One more time. The Prosecutors alleged that there were four "other crimes" ... and the other crime is NOT an actus reus element of the felony, but is an ENHANCED ADDITIONAL INTENT REQUIREMENT to turn the second-degree offense into a first-degree offense.

The Court, after reviewing the arguments of the Prosecution and the Defense, ruled that THREE of the other crimes would be allowed as enhanced intent requirements.

Is it possible, just once, for you to actually try and understand even a little bit of what is going one? Just ... you know, look some of this stuff up? Do a little research, instead of just regurgitating stuff you heard?

[iowantwo]

The Court, after reviewing the arguments of the Prosecution and the Defense, ruled that THREE of the other crimes would be allowed as enhanced intent requirements.

That's the crime.
The judge has committed a slate of reversible errors. Allowing this is just one of those

[loki13]

And after that, I can see you are a person that isn't worth engaging in.

You truly don't understand anything, do you? Buh-bye!

[iowantwo]

School me up
Evidence presented by the Prosecution does not have Trump influencing accounting decisions.
Record fraud has not happened according to the Prosecution.

[Sarcastr0]

the DA has listed some possible crimes, but has not alleged any of them and has not given evidence towards the elements of proving any of them.

At this point, if you don't understand that these crimes are not elements that need to be proven, you're spending considerable willpower working to NOT understand that.

[Brett Bellmore]

He doesn't need to prove the crime actually took place, sure, but he does need to prove that Trump personally ordered the records 'mislabeled' in order to conceal some act Trump himself understood to be a crime. If no crime happened you'd have to ask why Trump would have thought he was concealing a crime.

So, we've got Trump's comptroller testifying that he labeled the payments legal expenses on his own initiative. So, if somebody fraudulently labeled them, it was him, not Trump.

Paying hush money isn't a crime, and it wouldn't legally qualify as a campaign donation, either, so it couldn't be an illegal campaign donation.

[Sarcastr0]

Personally or constructively ordered.

That's where Cohen and other testimony about Trump's intent and habits regarding business records, especially regarding the campaign come in.

I'm not paying close attention to the trial, but it's hard to miss what they spent most of last week addressing.

[Brett Bellmore]

Let's assume that Trump was habitually casual about his record keeping standards. We still have the comptroller testifying that he gets an invoice for legal services from a lawyer he knows works for Trump, what else is he going to record it as except legal services?

Being casual about his records doesn't get you to specific intent to conceal a crime.

[iowantwo]

That’s where Cohen and other testimony about Trump’s intent and habits regarding business records, especially regarding the campaign come in.
Cohen is not in that Ven diagram. IF he made a claim about such things, the jury would prove themselves bought an paid for toadies.
Every claim made by Cohen is meaningless without solid corroborating testimony

[iowantwo]

Paying people to require their silence concerning specific facts in not a crime. To "cover up" that information is not a crime. A man working under the advice of counsole, is not intending to commit a crime.

[Sarcastr0]

You should check out what the crimes at issue here are, lest people think you're an idiot.

[Michael Ejercito]

We know this whole prosecution is a sham. Even Jacob Sullum admitted it!

[iowantwo]

We know, Vance, and Bragg refused to push such a stupid concept as what Deangelo cooked up.
The "record" is a personal check book register, No laws, rules, regulation, or Boy Scout Handbook, control the entries

It is impossible for the defendant to launch a defense of the second part about to aide in a felony. Constitution demands the defendant be informed of the crimes against him

[loki13]

"Constitution demands the defendant be informed of the crimes against him"

This was already adjudicated, and Trump knows. He is CHARGED with 175.10 (multiple counts).

The "other crime" is an enhanced intent requirement that elevates it from 175.05. Trump knows exactly what the three "other crimes" are for the enhanced intent requirement.

[iowantwo]

Trump knows exactly what the three “other crimes” are for the enhanced intent requirement.
The bookkeeping error is a non starter. Personal records are NOT BUSINESS RECORD.
Getting past that, NDA's are not a coverup

[David Nieporent]

The bookkeeping error is a non starter. Personal records are NOT BUSINESS RECORD.

There was no "error." It was a falsification. And it's a starter. I know, because the trial started. Trump already tried to make these arguments, and lost.

[iowantwo]

your deflection indicates you know you are on the wrong side of the facts

[Roger S]

No, I fully understand that the DA's position is that he can convict Trump without proving anything that anyone else would understand to be criminal.

[loki13]

Your repeated comments show that the only thing you understand is that you don't actually want to understand the actual facts and law, but simply want to argue.

Weirdly, if you wanted to engage in a substantive discussion (HA!) you might be able to draw in people who would be willing to talk about the various weaknesses of the case, except that we won't, because we are too tired of having to explain, again, basic stuff like ... Trump does know exactly what he is charged with, and he does know exactly what the enhanced intent issue is.

It's kind of like being on an astrophysics board, and people are trying to argue about string theory. And you come in each time saying, "Yeah, but the Earth is FLAT! SO NO STRING THEORY!!!!"

Well, you're not going to get much constructive engagement about string theory from people regardless of their position.

[Roger S]

Good analogy. The string theory advocates are able to bluff everyone because they cite esoteric math that few understand. There is no actual physical evidence for it.

In this NY case, no one at CNN, NY Times, etc. is able to understand and explain the charges. Most legal experts are baffled also. Almost no one sees anything wrong with what Trump did, except that some disapprove of him being unfaithful to his wife.

[loki13]

It is somehow amazing that you agree that an analogy in which you a flat earther is, to you, a good analogy. Yet unsurprising.

"Most legal experts are baffled also."

Given your news consumption and your understanding of the law, I am shocked, SHOCKED that the legal "experts" you turn to are baffled.

On the other hand, there are quite a few people here, and other places, that aren't baffled by the issues. At some point, you might want to learn what the actual legal issues and facts are if you want to be able to articulate good arguments.

[JasonT20]

Trump Should NOT TESTIFY at MANHATTAN WITCH HUNT OF A TRIAL

Almost 300 comments now, so I'm not going to go back and look. But did anyone get a laugh at the all caps? When you're putting all caps in your blog post title like it was a Trump tweet, then you know you've really gone off the deep end.

[Brett Bellmore]

I did say that it was embarrassing that I knew who had written it before I got halfway through the title. The all caps was what tipped me off.

[Purple Martin]

Jason & Brett, that reminded of my comment in Calabrese's post a week ago and ObviouslyNotSpam's reply :

Purple Martin 1 week ago

On the RECENT VOLOKH POSTS list, read “Judge Aileen Cannon is a Heroine” and immediately thought Calabrese’s raving again.

That requires no unusual insight of course.

ObviouslyNotSpam 1 week ago

It’s exactly the kind of absurd hyperbole you’d expect Donald Trump to say (except he would have put it in ALL CAPS).

This is not a coincidence.

...but it took ObviouslyNotSpam's unusual insight to predict this entry!

[Stephen Lathrop]

There is only one predicate which makes sense out of Calabresi's commentary. He expects reward in the form of a federal judgeship, or maybe a cabinet position.

Problem is, to make that happen, there is only one scenario that Calabresi's advocacy does not rule out. It will not be possible to appoint Calabresi a federal judge or cabinet secretary in any future where reading his advocacy before the Senate would end consideration of his candidacy. You would have to have an actually fascist Senate, utterly controlled by Trump, to make it happen.

I hope that turns out to be the long-shot I think it is.

[Roger S]

I thought that Calabresi had written a bunch of negative stuff about Trump. If he is sucking up to Trump, he is not doing a very good job of it.

[Mr. Bumble]

Coming soon to continue the debate; Open Thread Monday!

[Michael Ejercito]

If I were a district attorney or state's attorney, I will prosecute Democrats based on asinine, creative legal theories, and I would not let statute, evidence, Brady v. Maryland, or the United States Constitution stand in the way!

Do you remember Maraxus?

Because I will never forget Maraxus.

http://bbs.stardestroyer.net/viewtopic.php?p=3857818#p3857818

And as for The Hammer, that’s true. He did get his conviction overturned by the Texas Supreme Court, an elected body that consists almost entirely of conservative Republicans. They didn’t think DeLay actually did all that stuff, and Texas doesn’t really have much in the way of campaign finance laws anyway. It makes no matter, though. He was still a cancerous growth on Congress’ asscheek, begging for a public fall from grace. And when he got convicted the first time around, we as a nation are better off for it. Ronnie Earle did humanity a favor when he realized that DeLay broke campaign finance laws, and he did us an even greater one when he got DeLay convicted. Whether or not “justice” was actually served against him isn’t so important. The fact that he no longer holds office though? That’s very important.

It is beyond debate that the Democratic Party is the Party of Maraxus, now. I wish this were not true; there is no denying it.

In the animated series Gargoyles, there is a character called Demona, whose schtick was vengeance against those who hurt her and her kind.

To deal with Maraxus, we must become the Party of Demona!

[ChristopherJLinas]

Perjury statutes usually require the prosecution to prove beyond a reasonable doubt that the defendant made the false statement knowingly or intentionally. It is not a crime that a person can be lured into unwittingly and then be successfully prosecuted.

I agree that Donald Trump probably should not testify, but that is because (a) his answers to every difficult question will be defensive and/or nonresponsive, making him a bad witness under the standards jurors ordinarily use to judge credibility; and (b) by testifying, he would place his own credibility at issue, opening the door to evidence of prior acts of dishonesty. So yes, testifying would probably not be a good strategic choice for Mr. Trump for the same reasons criminal defense attorneys often advise defendants not to testify.

I am not an expert on New York law regarding the falsification of business records, but if Mr. Trump believes he has a legal defense that would negate an element of the crime even if the prosecution's allegations are accepted as true, then he can pursue that argument on appeal just like every other defendant in this country.