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I’m Disgusted with the Trump Indictment
The sheer pleasure ordinary Democrats, never mind MSM personnel, got from seeing Donald Trump in court was disgusting. The “Ah, jeez, why not?” reaction when it was announced he would not be paraded as a captured curiosity, a circus freak, through a perp walk. The t-shirts that wouldn’t be made out of his mug shot, all the disappointment leavened with the glee that years of investigations finally yielded Trump in court facing criminal charges, the fruition of #TheResistance. To hear MSNBC, you’d think we were days away from the Orange Man being thrown into a van with no windows for his last ride upstate, the Orange tan and orange jumpsuit, with Orange is the New Black jokes echoing behind him, the last things he hears before being violated in the prison showers while multitudes cheer.
I’d seen all this before, in post-military dictatorship Korea where prosecuting one’s political enemies is a popular blood sport. Former President Roh Moo-hyun faced corruption allegations after leaving office in 2008, but he died by suicide before he could face trial. Former President Park Geun-hye was impeached and removed from office in 2017, and she was subsequently sentenced to 25 years in prison on charges of bribery and abuse of power. Former Presidents Kim Dae-jung and Kim Young-sam were investigated for corruption after leaving office. Overall, whether a former South Korean president goes to jail after their term depends on various factors, occasionally such as the evidence against them, and more significantly, the political climate surrounding them. That’s no rule of law, it is revenge. That’s the new America you’re cheering for?
And yet for all the schadenfreude turned up to 11, we’re left staring blankly at the TV and asking: is this all there is? After eight years of intense judicial and media scrutiny, after two impeachments, the January 6 coven of elders committee, Russiagate and even after the state of New York and the House finally did get his tax documents, this is it? The Teflon Don is going down over… falsification of business records? Never mind the 34 counts, that’s just stacking, an old DA trick to turn one “crime” into many and make things look more dramatic. It just seem impossible that after all this there is no debt to Putin, no tax scam, no KGB handler, just a bookkeeping error. And spare us the “Al Capone went to jail over tax returns.” Capone was a known mobster, a murderer, a man who left a long string of broken bodies alongside his wholly criminal business (and he only served eight years.) Trump may have committed a bookkeeping error. He’ll pay a fine at worst.
When you blow away the smoke, Trump is charged with only one minor crime. That stems from the allegation that money Trump paid to his lawyer Michael Cohen (continuing the call him a “fixer” just prolongs the awful Godfather references and is sooooo 2021) to in turn legally buy silence from Stormy Daniels, and for Karen McDougal’s and other stories. Trump supposedly purposely mislabeled this legally spent money as “legal fees.” The indictment instead claims it a violation of business records law because the primary purpose was to influence an election. The supposition by the DA that that was true allowed him to upgrade a misdemeanor, false business records, into multiple felony accusations. Backing all this up is the word of disbarred felon Michael Cohen, and former National Inquirer honcho David Pecker (you just can’t make this stuff up, folks) both of whom are going to swear it is all true. That Pecker supposedly was granted immunity to testify and Cohen himself has multiple law suits and a huge chip on his shoulder pending against Trump has nothing to do with nuthin’.
The problem is DA Alvin Bragg (who actually ran for his office on the promise of prosecuting Trump for… something… and is now paying off his promise to his backers) has to win the case, and that is going to be as legally tough as the case itself is legally soft.
In short, the DA has to prove a crime not even charged (the unspecified campaign finance laws, or maybe something to do with taxes, the so-called “core crime”), show a misdemeanor for everyone else is actually a felony if you’re Trump, demonstrate Trump’s criminal state of mind when this all happened (intent to defraud… who? The Trump Organization?) and do all that based primarily on the testimony of Michael Cohen and a pseudo-journalist named Pecker. Otherwise, Trump is acquitted. And while the news is chock full of articles on the threat to our democracy if Trump is found guilty, no one has been saying much about how he will be empowered if he wins. It is said if you go after the king, you should not miss.There is nothing in this case which will stop Trump from running for president, even if somehow found guilty or even serving time. His affair with Stormy, which may be offensive to some voters, has sadly been part of the public conversation around Trump for years. If the standards being applied in New York hold, then while this is the first indictment of a former president it will not be the last. Every local prosecutor in the country will now feel that he has a green light to criminally investigate and prosecute presidents after they leave office (remember Jim Garrison and the JFK assassination.) Perhaps over the Hunter Biden case?Could things get to the point where the “rule of law” misinterpreted as a “rule of revenge” means a Republican candidate will need to stay out of blue states to avoid prosecution and vice-versa for Dems? Trump went to New York and surrendered himself voluntarily; imagine if he had stayed in Florida and fought any extradition attempt to force him to Manhattan. Democrats salivating over the charges against Trump will feel differently when a prominent Dem ends up on the receiving end of a similar effort by any of the thousands of prosecutors elected to local office, eager to make their bones by taking down a president of the other party. Now imagine an ageing Joe Biden a virtual prisoner of a Democratic safehouse in Delaware.It is easy to brush this off as exaggeration, but Trump’s opponents react to his provocations and grandstanding by escalating the erosion of legal norms (see the Mueller investigation, and the impeachments.) Ask Mitt Romney, who said “The prosecutor’s overreach sets a dangerous precedent for criminalizing political opponents and damages the public’s faith in our justice system.” And don’t forget Alvin Bragg’s predecessor had almost a year to bring this case after Trump left office, but did not do so, and the Department of Justice also declined. Historians will call this all the Bragg Rule.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Third World Politics: Details of the Trump Indictment
The rule of law, which seems so precious to holier-than-thou Democrats these days, depends above all on one thing: a belief among the majority of us that while no one is above the law, the law will also be applied fairly to all those it does affect. Whether you loathe Trump or love him, you know this: what is happening now in Manhattan is unfair and inconsistent with a nation that once prided itself on believing in the rule of law. Who is still a believer today?
The previously sealed indictment shows Donald Trump was charged with 34 felony counts for falsification of business records, the only crime actually charged. The falsification of business records is normally prosecuted in New York as a misdemeanor. But Bragg’s office apparently bumped up all the charges to felonies on the grounds that the conduct was intended to conceal another underlying crime, violating election finance law (“with intent to defraud and intent to commit another crime and aid and conceal the commission thereof.”) There is more smoke than fire; no wonder the DA wanted to keep this mess sealed as long as possible and the judge won’t allow cameras in the courtroom. But specifically, how is this unfair?
Overcharging and stacking charges. Two basic prosecutorial transgressions. If anything, Trump should have been charged with a simple misdemeanor, the so-called falsification of business records for his seemingly characterizing money legally paid to Stormy Daniels and others as part of a nondisclosure agreement as “legal expenses” as well as payments to the National Enquirer to “catch and kill” a story about Trump’s alleged affair with Karen McDougal and other stories.
The overall case has no victim of Trump’s “crime,” and is basically a tempest over bookkeeping. Bumping all this up to felony charges based solely on Bragg’s supposition that the error was made with the intent to cheat on campaign finance laws is just overcharging, trying to make this all seem more important than it is.
Stacking, the second basic prosecutorial transgression, refers to a DA’s attempt to break one “crime” into as many pieces as he can (34 counts, one for each check cut to lawyer Michael Cohen allegedly for Stormy, et al) to also exaggerate the importance of it all and justify the felony upgrade.
Ignoring precedent cases to “get him.” Alvin Bragg ran for office on prosecuting Trump. He is fulfilling a campaign promise and paying off his backers. Bragg, in the words of law professor Jonathan Turley, had a “very public, almost Hamlet-like process where he debated whether he could do this bootstrapping theory [bumping misdemeanors up to felonies.] He stopped it for a while and was pressured to go forward with it. All of that smacks more of politics than prosecutorial discretion.” Indeed, if Bragg were to have looked fairly at precedent he would have run right into the John Edwards case. Edwards, a former United States Senator and 2004 Democratic vice presidential nominee, was indicted in 2011 on charges of violating campaign finance laws during his 2008 presidential campaign. The charges stemmed from allegations Edwards used nearly $1 million in illegal campaign contributions to conceal an extramarital affair during his campaign.
The government alleged Edwards received money from two wealthy donors and used it to support his mistress and their child in return for their silence. The government claimed this constituted a violation of campaign finance laws, which limit the amount of money that individuals can contribute to a campaign and require that such contributions be disclosed. Edwards maintained the payments were gifts and not campaign contributions, and therefore not subject to campaign finance laws. A jury acquitted Edwards on one count of violating campaign finance laws and deadlocked on the remaining five counts. The government ultimately decided not to retry Edwards.
Creating New Political Precedent. If this is all they found in years of obsession with destroying this man, he must be the cleanest person to ever hold office. As former Supreme Court Justice Robert Jackson observed decades ago about unfairness, “It is not a question of discovering the commission of a crime and then looking for the man who has committed it; it is a question of picking the man and then searching the law books or putting investigators to work to pin some offense on him,” something that is inherently unfair.
The law applied equally. For the nation’s sake any action against Trump must preserve what is left of faith in the rule of law applied without fear or favor, or risk civil disenfranchisement if not outright civil unrest. To do this, someone will have to address the case of Hillary Clinton, who maintained an unsecured private email server processing classified material. Clinton destroyed tens of thousands of emails, potential evidence, as well as physical phones and Blackberries. She operated the server out of her New York (!) kitchen. Her purpose in doing all this appeared to have been avoiding Freedom of Information Act requests (a crime with the intent to commit another crime) ahead of her 2016 presidential run. The Hillary campaign and the DNC also did something naughty in paying for the Steele dossier as “legal expenses” and not campaign expenditures, and got off with only an Election Commission fine for their bookkeeping “error.”
In addition, those who claim Trump’s indictment is not unfair will also have to account for the fact that Barack Obama’s presidential campaigns in 2008 and 2012 were not found to have violated campaign finance laws and no charges were even levied. During the 2008 campaign donors were able to make contributions using fictitious names, such as “Mickey Mouse” and “Donald Duck,” and the campaign was criticized for not doing enough to prevent fraudulent donations. Another controversy involved the Obama campaign’s use of untraceable prepaid credit cards, which raised concerns about the possibility of illegal foreign contributions. No charges were ever filed.
Unequal prosecution. This concern extends past presidential politics. On Sunday, Speaker of the House Kevin McCarthy tweeted “DA Alvin Bragg is abusing his office to target President Trump while he’s reduced a majority of felonies [in NYC], including violent crimes, to misdemeanors. He has different rules for political opponents.” The DA’s tactics have led to a surge in crimes committed in Manhattan as prosecutions have fallen. Bragg claims equity demands he selectively prosecute; Bragg reduced 52 percent of all felony charges to misdemeanors, opposite of what he did to Trump.
The Future. If the standards being applied in New York hold, then while this is the first indictment of a former president it will not be the last. Every local prosecutor in the country will now feel that he has a green light to criminally investigate and prosecute presidents after they leave office. Democrats salivating over the charges against Trump will feel differently when a prominent Dem ends up on the receiving end of a similar effort by any of the thousands of prosecutors elected to local office, eager to make their bones by taking down a president of the United States (remember Jim Garrison and the JFK assassination.) Perhaps over the Hunter Biden case? Could things get to the point where the rule of law means a Republican candidate will need to stay out of blue states to avoid prosecution and vice-versa? Trump went to New York and surrendered himself voluntarily; imagine if he had stayed in Florida and fought any extradition attempt to force him to Manhattan. Now imagine an ageing Joe Biden a virtual prisoner of a Democratic safehouse in Delaware. Historians would have to call it the Bragg Rule.
If you’re curious about how that might work, just have a look at post-military dictatorship Korea where prosecuting one’s political enemies is a popular blood sport. Former President Roh Moo-hyun faced corruption allegations after leaving office in 2008, but he died by suicide before he could face trial. Former President Park Geun-hye was impeached and removed from office in 2017, and she was subsequently sentenced to 25 years in prison on charges of bribery and abuse of power. Former Presidents Kim Dae-jung and Kim Young-sam were investigated for corruption after leaving office, but they were not convicted. Overall, whether a former South Korean president goes to jail after their term depends on various factors, such as the evidence against them, and more significantly, the political climate. Is this America’s future? Ask Alvin Bragg.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Trump Indicted
What would you have done if you were Alvin Bragg? Would you have indicted Donald Trump? Or would you have walked away, concerned about accusations you as a Democrat were playing politics, and more concerned the indictment would somehow help the man you are trying to take down? You don’t play with such fire around a guy like Trump casually.
At Bragg’s insistence, Trump was indicted by a Manhattan Grand Jury on Thursday. The actual charges will not be announced until Trump is arraigned before a judge, likely in about a week. The charges will however be based around Stormy Daniels, who allegedly had sex with Trump in 2006, which he denies, and which she and Michael Cohen once also denied. She then took money in 2016 to sign a nondisclosure agreement (NDA) to keep silent. She willfully violated the NDA to revive her career and profit selling her story to the National Enquirer. Meanwhile, when faced with jail time for all sorts of dirty deeds, Trump’s now disbarred former lawyer Michael Cohen, a felon himself, violated attorney-client privilege to claim on his word the NDA payoffs were actually complex technical violations of New York business records law (a misdemeanor) and Federal campaign finance law (potentially a felony.) If this all sounds complicated, it’s because it is. No wonder even the Washington Post labeled this a “zombie case.” It is also the weakest case in the universe of legal troubles around Trump.
But there is a bigger question: if you were Bragg, can you win? Will voters object to a district attorney in New York trying to play kingmaker in the 2024 election, prosecuting a Federal case locally in Manhattan? Candidate Trump, surrounded by an aura of legal invincibility, is already earning partisan points claiming he is the victim of banana republic politics, and this indictment will allow him to claim he was right all along. Trump will fire both barrels, one aimed at Bragg, the other likely at Biden (who he will accuse of playing a role.) He was already the victim of partisan use of justice, as the FBI did try to influence both the 2016 election (with Russiagate) and the 2020 (by deep-sixing Hunter Biden’s laptop claiming falsely it was Russian misinformation) and now is taking a swing at 2024 with the Mar-a-Lago documents. If public opinion moves further to Trump’s side, Alvin Bragg through his indictment just reelected Trump to the White House as a sympathy candidate. CIA spooks, no strangers to manipulating elections abroad, call that blowback, and it is a real threat in this instance.
For the nation’s sake any action against Trump must preserve what is left of faith in the rule of law applied without fear or favor, or risk civil disenfranchisement if not outright civil unrest. Bragg will have to address the case involving former Secretary of State Hillary Clinton, who maintained an unsecured private email server which processed classified material. Her server held e-mail chains classified at the Top Secret/Special Access Program level which included the names of CIA and NSA employees. Clinton and her team destroyed tens of thousands of emails, potential evidence, as well as physical phones and Blackberries. She operated the server out of her New York (!) home kitchen despite the presence of the Secret Service on property who failed to report it. Her purpose in doing all this appeared to have been avoiding Freedom of Information Act requests during her tenure as SecState ahead of her 2016 presidential run. The Hillary campaign and the DNC also did something naughty in paying for the Steele dossier as “legal expenses” and not campaign expenditures, and got off with only an Election Commission fine.
In addition, those who claim Trump’s indictment is not political in nature will also have to account for the non-actions against the Obama campaign. Barack Obama’s presidential campaigns in 2008 and 2012 were not found to have violated campaign finance laws and no charges were even levied. During the 2008 campaign donors were able to make contributions using fictitious names, such as “Mickey Mouse” and “Donald Duck,” and the campaign was criticized for not doing enough to prevent fraudulent donations. Another controversy involved the Obama campaign’s use of untraceable prepaid credit cards, which raised concerns about the possibility of illegal foreign contributions. No charges were ever filed.
There is also the case of John Edwards. Edwards, a former United States Senator and 2004 Democratic vice presidential nominee, was indicted in 2011, on charges of violating campaign finance laws during his 2008 presidential campaign. The charges stemmed from allegations Edwards used nearly $1 million in illegal campaign contributions to conceal an extramarital affair during his campaign. Sound familiar?
Specifically, the government alleged Edwards received money from two wealthy donors and used it to support his mistress and their child in return for their silence. The government claimed this constituted a violation of campaign finance laws, which limit the amount of money that individuals can contribute to a campaign and require that such contributions be disclosed. Edwards maintained the payments were gifts and not campaign contributions, and therefore not subject to campaign finance laws. A jury acquitted Edwards on one count of violating campaign finance laws and deadlocked on the remaining five counts. The government ultimately decided not to retry Edwards.
The other fear which should have held Bragg back is that business records mismanagement and even campaign finance violations are typically dealt with either via administrative penalties and fines (Trump will not go to jail for any of this.) Most of the laws Trump may have broken require some sort of intent to do wrong. In other words, Trump would have had to have taken the steps with Stormy not just for ego or his presidential library or as some crude souvenir of virility but with the specific intent to commit harm. Proving a state of guilty mind — mens rea — will be the crux of any actual prosecution. What was Trump thinking at the time. “It should be clear,” says the New York Law Journal, “Cohen’s plea, obtained under pressure and with the ultimate aim of developing a case against the president, cannot in and of itself establish whether Trump had the requisite mental state.” If DA Bragg has other key witnesses beyond Stormy and Cohen he has not signaled as such.
The final questions are probably the most important: Bragg knows what the law says. If knowing the chances of a serious conviction are slight, why would he take the case to court? Then again, if knowing the chances for a serious conviction are slight, why would he have gone to the Grand Jury at all, his predecessor and the Department of Justice having passed on this case. No one is above the law, but that includes politics not trumping clean hands jurisprudence as well.
If Bragg successfully navigates the politics, if he proves his case in court, then what? Trump’s “crimes” are minor. Could Bragg call Trump having to pay a fine or even do some sort of community service during the 2024 campaign a win? It seems petty, as even a conviction would not disqualify Trump’s bid for the White House (Eugene Debs ran for president while locked up.) Controversy is home turf for Trump; he is clearly again the center of attention and the dominant figure in his party. It sure seems Trump wins politically big-picture whether he wins or loses at court. If you were Alvin Bragg, how would you answer accusations of the weaponization of the legal system to advance a political agenda?
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
The Revenge of Stormy Daniels?
Convicting Donald Trump for some sort of crime connected to his alleged affair with porn star Stormy Daniels means taking the word of that porn star and a guy like Michael Cohen, serial liar and convicted felon, over the word of someone many people think has the disposable morality of a porn star and the trustworthiness of a serial liar, Trump himself. That’s likely going to be up to a Manhattan jury if the long-rumored indictment comes through. Next for any of this to matter Trump would have to be reconvicted in the court of public opinion, something that has largely already passed as the rough details of Trump and Stormy’s relationship (financial and otherwise, though Trump denies having an affair with Daniels) have long been chewed over by everyone from law reviews to late night comics. About the only people who really think the walls are closing in, again, are in the cheap seats of blue check Twitter.
Goodness help us, here’s the rest of the raw material of this criminal caper. Trump may soon be indicted on some sort of campaign finance law violation. This means Manhattan district attorney Alvin Bragg for the State of New York (Federal prosecutors have long signed out of the cheesy political revenge fantasy business) has convinced a grand jury there is enough evidence to charge Trump with the crime. A grand jury setting means Bragg faced no opposition in laying out his case, as the not-quite-a-defendant is not represented. So no cross examination, no motions to suppress evidence, no hammering away at Michael Cohen as perhaps the least credible witness of all time, and thankfully, no hoary Godfather references to it all in the media. The old joke is you can indict a ham sandwich if the DA is any good, and if Trump is indicted that motto holds true here. Indicted means only the case moves on to the next stage ahead of a possible trial anyway.
Stormy Daniels, a porn star whose very NSFW antics are all over the internet, has sex with a businessman. She then takes more money to sign a nondisclosure agreement (NDA) to keep silent. Sensing an opportunity when the businessman later runs for president, she willfully violates the NDA to revive her career. Meanwhile, when faced with jail time for all sorts of dirty deeds, the businessman’s now disbarred lawyer, a felon himself, violates attorney-client privilege to claim on his word the NDA payoffs (inherently legal) were actually complex technical violations of campaign finance law. And, oh yeah, most of this naughtiness happened way back in 2006, before Trump was even president. That’s the basic case to bring down Citizen Trump in the ultimate act of political revenge. Fuhgettaboutit!
It will be interesting in a stop-and-stare-at-a-car-wreck kinda way to see how DA Bragg presents his case. Problem One is that with paying money as part of an NDA is not illegal; lawyers regularly obtain (here’s a fill-in-the-blanks NDA) discreet resolutions of issues threatening the interests of their clients (“settlements.”) Without admitting guilt, money is paid from Party A to Party B in return for Party B dropping all future claims, agreeing to never mention something again, handing over documents or photos, whatever you’d like. It happens all the time, and in fact is the dirty little secret which keeps sexual harassment alive and well. Wealthy men pay women to remain silent under NDAs. It does not change the legality of all this even if the media calls those payments hush money or payoffs and Michael Cohen a “fixer.”Problem Two for Bragg is any criminality must come from twisting a not uncommon occurrence into a violation of a campaign finance law. When Trump had sex with Stormy he was just another philanderer. However, a few years later Trump became a philandering presidential candidate, and that money shifted, maybe, from a legal NDA payoff to something akin to a campaign contribution. The what in this case (money for silence) is clear. It is the why that matters most.So Problem Three, and it is a big one, is intent. You have to intend to violate campaign finance laws, not make a mistake or just act like a sleaze. Any illegality comes from the supposition by Michael Cohen that he can speak to Trump’s intent, that the NDA was not, say, to spare Trump’s marriage from new embarrassment, but “for the principal purpose of influencing an election” amid everyone already knowing Trump was a serial philanderer. If the whole was primarily for the purpose of hiding Stormy from voters instead of hiding Stormy from Trump’s wife and kids, then the money was essentially a campaign contribution and whole new set of laws kick in. But “it should be clear,” said the New York Law Journal, “Cohen’s plea, obtained under pressure and with the ultimate aim of developing a case against the president, cannot in and of itself establish whether Trump had the requisite mental state.”Thus Cohen’s testimony does not prove Trump knew the payments made to Stormy were illegal. Prosecutors would have to prove that willingness by Trump alongside proving his principal goal was to influence the election. If this ever reaches court, Trump will simply deny that and no jury can say weighing one man’s word against another, especially these mooks, eliminates all reasonable doubt. Felons testifying out of self interest make poor witnesses. Michael Cohen pleaded guilty to eight criminal offenses, including lying to Congress, tax fraud, and campaign finance violations. Cohen will face questions of personal bias, given his own multiple lawsuits against Trump. He will face questions about whether he received a benefit from prosecutors, early release from prison, for cooperating. If a liar like Cohen is your only witness on Trump’s intent, you really have no witnesses.There’s more. Problem Four is prosecutors also have to connect Trump directly to the payment. The check for $35,000 from Trump to Cohen, which was supposedly part of $135k paid to Stormy Daniels, Michael Cohen displayed at his 2019 Congressional hearing and ten others alleged to exist do not show what the payments were for. The checks do not have Stormy’s name on them. Cohen simply claimed they were part of his reimbursement for “illegal hush money I paid on his behalf.” The check(s) are not receipts; they could have been for anything. They do potentially expose Trump to another crime, falsifying business records, a misdemeanor in New York.They are receipts for a crime only because Cohen says they are. Under direct questioning when he testified before Congress, Cohen claimed unfortunately there was no corroborating evidence. He said he sent fake invoices to Trump only for “legal retainer fees,” so don’t bother with the invoices as evidence because Cohen now says he lied on them claiming it was a retainer fee. The checks total over $400k, because supposedly Trump rolled Cohen’s fee and bonus into the amount, so we just have to take his word for it $135k of that money was for Stormy. Cohen said some of the checks were signed by Don, Jr. and the felony-convicted tax cheat Trump Organization CFO. That means the checks would be used to implicate personally a person who did not sign them. If this all sounds complicated, it’s because it is.Problem Five, for Stormy’s payoff to be illegal, it will also be necessary to determine the money came from campaign funds. If it was Trump’s private money, even private money he donated to his own campaign, there is likely no case. Even if the money is shown to be campaign funds, illegality is based on the $2,000 donation limit imposed on the supposed “giver,” Michael Cohen in this case who has already been convicted, a limit which does not apply to the candidate himself. The payment is also not a donation if it was made for an expense that would have been paid even if there were no campaign, like hiding an affair from your wife.And so what? There is nothing to stop Trump from running for president if he is under indictment, or even found guilty and serving time. His affair with Stormy, which may be offensive to some voters, has sadly been part of the public conversation around Trump for years. Anyone who has wanted to see Stormy in the buff has done the requisite searches. Trump is not former Democratic vice-presidential nominee John Edwards, who was found guilty in 2012 and withdrew from the race. Edwards was accused of illegally arranging for two wealthy supporters to pay $925,000 to keep his pregnant mistress out of public view during the campaign. This all is no knock-out blow for 2024. Trump’s spokesperson said in a statement, “The Manhattan District Attorney’s threat to indict President Trump is simply insane.” You literally cannot embarrass Trump into quitting. The Dems are going to have to beat Trump another way.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
The People v. Donald Trump
Here are six things to think about ahead of any indictment and arrest of Donald Trump:
1 – What is Trump going to be indicted for? Trump may soon be indicted on a campaign finance law violation. This means Manhattan district attorney Alvin Bragg (Federal prosecutors seem to have long signed out of the cheesy political revenge fantasy business) has convinced a grand jury there is enough evidence to charge Trump with the crime. Since this was a grand jury, Bragg faced no opposition in laying out his case, as the not-quite-a-defendant is not represented. So no cross examination, no motions to suppress evidence, no hammering away at Michael Cohen as perhaps the least credible witness of all time. The old joke is a clever DA can indict a ham sandwich, and if Trump is indicted that motto holds true here.
2- But I thought this was all about Trump having an affair with some porn star? Stormy Daniels allegedly had sex with Trump in 2006, which he denies, and which she and Michael Cohen once also denied. She then took money in 2016 to sign a nondisclosure agreement (NDA) to keep silent. Sensing an opportunity when the businessman later ran for president, she willfully violated the NDA to revive her career and profit off selling her story to the National Enquirer. Meanwhile, when faced with jail time for all sorts of dirty deeds, the businessman’s now disbarred former lawyer, a felon himself, violated attorney-client privilege to claim on his word the NDA payoffs were actually complex technical violations of campaign finance law. If this all sounds complicated, it’s because it is. No wonder even the Washington Post labels this a “zombie case.”
3 – So the problem is the hush money paid in 2016? Not really but sort of. Paying money as part of an NDA is not illegal; lawyers regularly obtain discreet resolutions of issues threatening the interests of their clients. Without admitting guilt, money is paid from Party A to Party B in return for dropping all future claims, agreeing to never mention something again, handing over documents or photos, whatever you’d like. It happens all the time, and in fact is the dirty little secret which keeps sexual harassment alive and well. Wealthy men pay women to remain silent under NDAs. It does not change the legality of all this even if the media calls those payments hush money or payoffs. The what in this case (money for silence) is clear. It is the why that matters most. The why also affects any potential sentence; Trump lying would be a misdemeanor if it is proved that all he did was falsify his business records. But it could be a felony if prosecutors can prove that the falsification was tied to another crime and that’s where campaign finance laws come in.
4 – The case, if it ever goes to trial, will hinge on intent, what Trump intended the money to do for him, according to Cohen. One has to intend to violate campaign finance laws. Any illegality comes from the supposition by Michael Cohen that he can speak to Trump’s intent, that the NDA was not, say, merely to spare Trump’s marriage some new embarrassment, but “for the principal purpose of influencing an election.” If the purpose was hiding Stormy from voters instead of hiding Stormy from Trump’s wife, then the money could be seen as a campaign contribution and whole new set of laws kick in. But “it should be clear,” says the New York Law Journal, “Cohen’s plea, obtained under pressure and with the ultimate aim of developing a case against the president, cannot in and of itself establish whether Trump had the requisite mental state.” If DA Bragg has other key witnesses beyond Stormy and Cohen he has not signaled as such.It’ll be up to a jury to decide if Cohen’s testimony proves Trump knew the payments made to Stormy were illegal. Prosecutors would have to prove that willingness by Trump alongside proving his principal goal was to influence the election. If this ever reaches court, Trump will simply deny everything and it would be a rare jury that says weighing one man’s word against another, especially these knuckleheads, eliminates all reasonable doubt. Felons testifying out of self interest make poor witnesses. Michael Cohen pleaded guilty to eight criminal offenses, including lying to Congress, tax fraud, and campaign finance violations. Cohen will face questions of personal bias, given his own multiple lawsuits against Trump. He will face questions about whether he received a benefit from prosecutors, early release from prison, for cooperating.5 – Seems like an awful lot rests on what the jury “believes” versus what can be proven. Trump need only introduce doubt to prevail here. But that’s not where the jury question will first come up. Trump’s lawyers are already hinting they will demand a change of venue, that by this time everyone in New York either loves or hates Trump (mostly hates, going back to the 1980s) and it will be impossible to seat an impartial jury in Manhattan. Moving the whole show to say Pittsburgh or Seattle will only increase the circus-like atmosphere and will add to Trump’s public-facing argument that this is all unfair.6 – Trump denies the affair. So how do we know he paid Stormy to keep quiet about the sex? DA Bragg will need to do some heavy lifting to connect Trump directly to the NDA payment. The check for $35,000 from Trump to Cohen, which was supposedly part of $135k paid to Stormy Daniels, Michael Cohen displayed at his 2019 Congressional hearing and ten others alleged to exist do not show what the payments were for. The checks do not have Stormy’s name on them. Cohen simply claimed they were part of his reimbursement for “illegal hush money I paid on his behalf.” The check(s) are not receipts; they could have been for anything. That Cohen denied everything until 2018 when he changed to confessing everything will feature in any Trump trial.Under direct questioning before Congress, Cohen claimed there was no corroborating evidence. He said he sent fake invoices to Trump only for “legal retainer fees,” so don’t bother with the invoices as evidence because Cohen now says he lied on them. The checks total over $400k, because supposedly Trump rolled Cohen’s fee and bonus into the amount, so we just have to take his word for it $135k of that money was for Stormy. Cohen said some of the checks were signed by Don, Jr. and the felony-convicted tax cheat former Trump Organization CFO Alan Weisselberg. That means the checks would be used to implicate personally a person who did not sign them.If this case comes to trial, Trump’s side will drag its feet at every step, hoping to push the verdict past the 2024 election. There is nothing to stop Trump from running for president if he is under indictment, or even if somehow found guilty and serving time. His affair with Stormy has been part of the public conversation around Trump for years and is well-digested by voters. There are elements here which would cause a reasonable man to call this overcriminalization, an act of political revenge, an attempt to derail the Trump campaign by the DA in New York. Would Trump garner more sympathy votes than those he might lose running as the first-ever indicted presidential candidate? Will voters object to a district attorney in New York trying to play kingmaker in the 2024 election, taking the vote out of the voter’s hands? Isn’t arresting political opponents a Third World thing? Playing with fire around Trump is never a good idea.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Second Verse, Same as the First: NY’s Civil Suit Against Trump
New York Attorney General Letitia James filed a lawsuit against former President Donald Trump, three of his adult children, and other senior members of the Trump Organization alleging business and insurance fraud as well as conspiracy for the same, marking the end of a three-year investigation into Trump and his business. The civil suit is basically a version of the criminal indictments the Southern District of New York (SDNY) and the Manhattan and New York State Attorneys General have failed to generate at the federal and state levels. The suit claims in a nut shell what the criminal cases claimed; Trump over-valued the worth of his properties to use them as collateral for new loans, and then undervalued those same properties come tax time to pay lower taxes.
The criminal cases have fallen flat because of the need to prove actual criminal intent, that Trump lied intending to commit a crime. This proved impossible when the Trump family would not confess (Trump took the Fifth some 440 times during recent questioning) and when no one could be found to Fredo him by turning states’ evidence in return for some lower sentence himself. What’s left in what has clearly become a prosecution driven by the political need to do something ahead of 2024 is this civil suit. Basically same accusations, same weak evidence, but lower standards of proof with lower penalties.
Enemies of Trump hope this works out better than previous attempts in New York to prosecute him by the Southern District of New York (SDNY) and failing that, the New York State Attorney General Letitia James. The former already failed in 2012 to indict Trump’s children after they were accused of misleading investors, and faced judicial rebukes in the past for sloppy work and political motivations.
The narrative runs like this: both offices had been compiling nasty stuff against Trump for years, held back only by custom which prevented them from indicting him as long as he was the president. As of January 20, 2021 he became open game. But since then both offices failed to indict Trump. The New York state system is no such kangaroo court, and affords defendants far more protections than federal courts. There are strict rules governing evidence that can be presented to a grand jury, and even minor procedural errors can result in indictments being thrown out. “If you’re a white-collar defendant, you’d rather be in New York State court than in federal court any day of the week,” said SDNY’s former top deputy.
The current try is kinda of pathetic, just a lawsuit, which carries no potential criminal jeopardy, so no formal indictment, no possibility of jail time. The suit holds Trump misvalued some New York real estate from 2011-2021 to obtain loans and pay lower taxes, a civil offense at worst usually settled with new assessments or a fine.Yet even this case against Trump could be difficult to prove. Property valuations are subjective, and most all financial statements include a disclaimer stating that they have not been audited. Now underline this part: Deutsche Bank and Trump’s other lenders were hardly victims; all of his loans are either current or were paid off, some early. Trump does not use email, so any instructions he might have given his employees about the company’s financial statements are unlikely to be in writing. The lack of a damning email, or a witness inside his company willing to testify against him, will complicate efforts to show Trump intentionally used his financial statements to defraud lenders and insurers.For people not named Trump (a key giveaway that this is all political) the city of New York assesses a value to each property for tax purposes. Nearly every property owner in NYC believes his or her assessed value is too high and pushes back, to the point where these disputes are not even handled by a court, instead through a tax commission grievance process. Owners want a lower value to pay less tax, except when they approach a bank for the equivalent of a refi loan, when they want their property to seem more expensive to secure a bigger loan at a better rate. It is the bank who then decides what a property is worth to them as collateral, via their own due diligence.It is always complicated, as much art as science; beyond the usual valuation factors of location, location, location, some buildings in New York are iconic, or famous for their brand name (cough, cough, “Trump”), what history they represent, etc. Some just have nice views. Sometimes the bank is generous because in return for the loan they’ll secure some other business of value to them. Over-valuing/under-valuing real estate in New York City is sport, but as a crime is so much not ado about nothing it is not going to send anyone to jail. Imagine the yawns as a jury listens to forensic accountants explain Trump’s tiered exemptions, and how their value is subtracted from the DOF assessed value to calculate a taxable value which is then multiplied by the current tax rate for the specific assigned property class. Next session we’ll talk about somewhat sketchy easements Trump obtained going back to when Mayor Koch was in charge.The jury will quickly discover the regulations governing how one values a NY property are dense. Built into the law is an automatic fudge allowing the same property to have both a high market value and a lower asset value. Problems are sorted out as civil matters and usually settled with the city sending out a bill, especially if the bank is not claiming fraud, only the DA, as in Trump’s case.And in the end, what? The lawsuit seeks to permanently bar the Trump family members named from serving in officer or director positions in any corporation or business licensed in New York State. The attorney general also seeks to bar the former president and the Trump Organization from entering into any New York real estate acquisitions for five years, and to take back all financial benefits obtained through the allegedly fraudulent practices, estimated to total $250 million. None of those things, even if the suit if fully successful, is likely to have an effect on Candidate Trump and none would prevent him from running for president. Business-wise, Trump merely needs to re-incorporate in another state, maybe business-friendly Florida, to re-start operations.The Democrats’ plan to find Trump guilty of something, anything, seems to be coming to its own sad ending, the lawsuit beyond a whimper, not a bang. They have tried to turn belief Trump is evil into crime over the last five years — Emoluments Clause, Russiagate, impeachments I and II, Stormy Daniels, obstruction of justice, and incitement. On the sidelines were extra-judicial attempts connected with the 25th Amendment, having doctors who never examined the man declaring Trump mentally ill, and even accusations of incest. The Southern District of New York previously failed to indict Trump’s children and failed to prosecute Paul Manafort. E. Jean Carroll’s rape-cum-defamation case was so egregiously lousy even the Biden DOJ took Trump’s side. The convictions of Trump associates lawyer Michael Cohen and accountant Allen Weisselberg did not touch the principal himself.The SDNY brought no charges. Early this year, the Manhattan district attorney, Alvin Bragg, instructed prosecutors to halt their effort to seek an indictment of Trump. It looks like Letitia James is all who is left to make the last flaccid move and then turn off the lights on her way out.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
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