• So Much for Lawfare? Trump Found Guilty and So What

    June 5, 2024 // 15 Comments »

    A New York jury convicted Donald Trump of 34 counts of falsifying business records in connection with buying the silence of a porn star. He is the first American president to become a felon. The verdict is not unexpected from the deep blue Democratic enclave of Manhattan; the larger question is if lawfare will defeat Trump on November 5.

    The jury found Trump faked records (hiding hush payments as “legal expenses”) to conceal the purpose of money given to the onetime attorney Michael Cohen. Trump was actually reimbursing Cohen for a $130,000 hush-money deal struck with porn star Stormy Daniels, to silence her account of an affair with Trump. The affair was in 2006, a decade before Trump was elected president. The falsification of business records took place in 2017, after Trump was already in the White House and thus could not have influenced the election. He was found guilty nonetheless.

    For the jury to reach its unanimous decision of guilt on all 34 charges, the key was believing two witnesses over Trump.

    There are only two people on earth who know if an affair actually took place between Stormy and Trump. Trump said no, Stormy said yes and the jury agreed with her, fully absent of any further actual evidence. Daniels benefitted greatly from her claims to having the affair, and violated a nondisclosure agreement she voluntarily signed and accepted money for, to achieve her goals. “Proving” the affair was the base upon which the rest of the case to find Trump guilty was made.

    It is important to understand that having an affair and paying off someone to remain quiet about it are not crimes, even for a presidential candidate. Nonetheless, the prosecutor claimed in closing arguments Trump “hoodwinked the American voter” with a conspiracy to influence the 2016 election. In addition to those who may have benefitted from the plan, “all roads lead to the man who benefited the most: Donald Trump,” Joshua Steinglass told the jury.

    But the witness whose testimony was fully believed by the jury, and whose testimony will see Trump receive a criminal penalty when he is sentenced on July 11 (four days before the Republican National Convention!) is Michael Cohen. In the total absence of physical evidence and in the face of Trump’s claims to the contrary, Cohen served as connective tissue for many disparate elements. It was Cohen who claimed Trump masterminded the plan to hide the payments to Stormy. It was Cohen who said the 34 checks and invoices, only nine of which were signed by Trump himself, were not for legal expenses as they were labeled but were to reimburse Cohen for paying off Stormy. Stormy’s name appeared on none of the 34 documents, a fact which instead of exonerating Trump became under Michael Cohen’s testimony the linchpin of the conspiracy to falsify business records. Todd Blanche, a lawyer for Trump, told jurors the case hinged on the testimony of Michael Cohen, whom he called “the greatest liar of all time.”

    Nearly incredibly (Trump’s defense team called Cohen a “walking reasonable doubt”) the jury believed Cohen based on nothing but his good word. This is despite Cohen having gone to jail for perjury, been caught lying to Congress, being disbarred, and actually telling a lie during his testimony at the instant trial. It remains difficult to understand how a jury could objectively grant so much credence to Cohen in the face of his record of lying to his own advantage. Every critical element of the case came down to whether his word could be trusted. That is what convicted Trump. You might have thought Robert De Niro was leading the deliberations.

    There’s more. For jurors to have found Trump guilty of all 34 counts, they must have concluded beyond a reasonable doubt not only that Trump falsified or caused the falsification of business records “with intent to defraud” but also that he did so with the intent to commit or conceal another crime. That second element — the intent to commit or conceal another crime — elevates the charges to felonies and got around the statue of limitations that usually governs misdemeanors such as false business records. To reach this conclusion the jury had to also believe Cohen that Trump’s primary intent in all this was election influence and not, as Trump claimed, to hide the affair from his family.

    There are many questions surrounding the jury’s verdict, and the fact pattern of the case itself, all of which should come out in Trump’s inevitable appeal. With that in mind, the actual legal conclusion of this case is far into the future, almost certainly after the November 5 election. But that begs the more important question: does any of this matter to voters? This is lawfare, not justice, after all. “The real verdict is going to be November 5, by the people,” said Trump.

    CNN, for example, concluded “Donald Trump, who built a mystique as the brash epitome of power, has never been more powerless to dictate his own fate. His reputation, future, and even perhaps the White House’s destiny, [was] placed in the hands of 12 citizens of his native New York City, proving that not even once-and-possibly future commanders in chief are above the law.”

    So a victory for Democratic lawfare? Maybe not. Trump remains eligible to campaign for the presidency and serve if elected. None of the other lawfare shots is likely to conclude before November.

    So does it matter? A majority of registered voters said a guilty verdict in Trump’s trial would make no difference in their vote in the 2024 presidential election. Across all registered voters, 67 percent said a guilty verdict would have no effect on their vote, while 17 percent say they would be less likely to vote for him and 15 percent say they would be more likely, according to the NPR/PBS News Hour/Marist poll released before the verdict. An ABC News poll earlier this month showed 80 percent of Trump’s supporters say they would stick with him even if he’s convicted of a felony in this case. Some say they would either reconsider their support (16 percent) or withdraw it (four percent.) Similar polls followed Trump’s defeat in New York courts over supposed real estate fraud.

    And Biden knows it. A Biden campaign spokesman said Trump’s conviction showed “There is still only one way to keep Donald Trump out of the Oval Office: at the ballot box. Convicted felon or not, Trump will be the Republican nominee for president.”

    As in other Third World countries where the judiciary is used to smite political opponents, let us hope the people can see the truth, as they still hold the final card to be played. The Deep State has tried from day one to destroy Donald Trump — Russian collusion and dossier hoax, pee tape accusation, Mueller hearing and report, Emoluments Clause, various calls for extra-legal interventions and coups, Alfa Bank hoax, Impeachment I, Impeachment II, demands Mike Pence invoke the 25th Amendment, MSM blackout of Hunter Biden laptop story, Twitter purge of conservative accounts, FBI raid on Mar-a-Lago, Letitia James prosecution “show me the man, and I’ll show you the crime” with no victims, no monetary loss but an effort to bankrupt Trump with civil judgment, Colorado attempt to remove Trump from state ballots over the 14th Amendment, and false statements Trump will “take revenge,” “demand retribution,” ensure a “bloodbath,” and “end democracy” (America’s last election if he wins.)

    Trump meanwhile has characterized this trial, and the others, as unjust, rigged, lawfare pure and simple. He has kept the voters’ eyes not on who he is (his personal life has been baked-in to the vote long ago) but on what he represents to the electorate. As such, it is hard to see this guilty conviction, however unfair, as mattering too much come November.

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Biden, Democracy, Trump

    It Comes Down to Intent (Stormy Weather)

    April 30, 2024 // 5 Comments »

    The critical element in the Trump “hush money” trial and the factor most likely to result in a reasonable doubt, is intent. What did Trump intend by paying Stormy (if indeed he did…) to keep quiet about an affair (if indeed they had one…)

    For a guilty verdict, the prosecution must prove Trump had an affair with Stormy Daniels, paid her to be quiet about that affair, and that the principal purpose of the payment was to influence the outcome of the election, that the payment was from campaign funds (itself illegal in the amounts paid and lack of disclosure) and that Trump falsified business records with the intent to characterize the payment not as hush money but as legal expenses. Believe it or not, that’s the actual charge here when all the dust is blown away, falsifying business records.

    Before we get to the meat of the case — intent — a warm-up point. There is nothing illegal about paying out “hush money” per se. It is called a settlement and lawyers negotiate them all the time for clients via NDAs, non-disclosure agreements. A person receives a sum of money to not speak about some event, usually as a way to avoid a lengthy and often embarrassing public trial. So the term “hush money” is a bit disingenuous.

    As for the affair itself, the jury will need to weigh the statements of the only two people on earth who know the truth, Trump and Stormy. If you have nothing to “hush” you have no case. The jury will also need to weigh out whether money was paid to Stormy by Trump, and there again you have only two people on earth, former Trump lawyer Michael Cohen and Trump himself, one is lying. The so-called receipts for the payments are checks signed by Cohen, Don, Jr., and the former, and convicted, Trump CFO (who ain’t sayin’ ‘nuthin’ ’bout ‘nuthin here), but not Trump. The checks are claimed to be for payments to Stormy, again by Cohen and denied by Trump. No proof of payments for the purpose of hushing someone, you have no case (Cohen said he created fake invoices for legal services to cover-up the money.)

    The money must also come from campaign funds to end up as being illegal; it cannot be Trump’s personal money. This is because campaign finance laws limit the amount of a personal donation and require disclosure for a candidate’s own money donated to the campaign. Where did the money come from? Lastly, the prosecution must convince a jury that all of this, events from up to  nine years ago, usually charged as a misdemeanor, is actually worthy of a felony conviction. The prosecution must find a way, past the hoopla, to prove these points.

    But even if the jury can be convinced of the above points, largely on personal claims by disbarred lawyer and convicted felon and perjurer Michael Cohen, the case hinges on what was Trump’s intent all along.

    Trump may claim he need not discuss intent because there was no underlaying affair to begin with. More likely, however, at some point he could state something in legalese along the lines that if some sort of affair took place and if he paid Stormy to be quiet about it, his purpose was only to spare his wife and son further embarrassment. He was simply a marriage cheater. Besides, the infamous “Access Hollywood” tape was already out there, the one where Trump bragged about grabbing women by their private parts, and so how much of an influence could one more affair have on the campaign? Trump’s lawyer has already proposed another sweeping explanation in his opening statement to the court, saying “there’s nothing wrong with trying to influence an election. It’s called democracy. They put something sinister on this idea as if it were a crime,” he continued. “You’ll learn it’s not.”

    So the problem is, and it is a big one, 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 a 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.”

    The prosecution has already begun setting the stage for the jury as to Trump’s intent with its first witness, former National Enquirer publisher David Pecker. Pecker testified at a meeting he and Trump (and Cohen) discussed how they might “catch and kill” negative stories during the campaign. If someone seemed ready to come forth with something that might hurt Trump, Pecker could “buy” the story from that person with the intent to simply hold on to it and never actually publish anything. That, the prosecution claims in what some lawyers call “storytelling,” will show Trump already had hiding stuff on his mind and worked out a mechanism to hush up a negative story. But if so why wasn’t that mechanism — the Enquirer route of checkbook journalism — used with Stormy? The jury will need to decide. FYI, prosecutors gave Pecker and another Enquirer executive immunity from prosecution so that they remain unindicted co-conspirators.

    What you are likely to hear in the media, and from the prosecution, is that this trial is really about something much bigger than false business records. It is about Trump trying to steal the election, something they’ll claim has plenty of proof of intent behind it (see January 6.) Never mind all the technicalities of campaign finance law and all the salacious details provided by ex-con disbarred lawyers and porn stars, this is about something we all know to be true, election fraud, the desire by Trump to win at any cost. He was afraid of what effect Stormy might have. He laid out plans with the Enquirer, used with another alleged extra-marital girlfriend, Karen McDougal, to kill bad news. He directed Michael Cohen to pay off Stormy. He had records altered with an intent to commit or conceal the real crime. He created a criminal conspiracy to help manipulate the election. He is guilty of something.

    We’re left at this early point with the question that nags everything to do with Trump — so what? It has been long-established Trump’s slimy personal life matters little to voters. Trump himself has done a masterful job of setting the stage for all of his trials, labeling them in bulk election interference and an attempt to use “lawfare” to prevent him from even campaigning for the presidency. The “so what” question here is so what if Trump is found guilty? In whatever form this all shakes out, guilty or not, will it matter on the one day it matters, Election Day 2024?

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Biden, Democracy, Trump

    Leave Trump Alone (Because It Does not Matter)

    June 23, 2023 // 10 Comments »

    The narrative is set. Everything between now and November 2024, absent an actual alien intervention, is filler material.

    Trump will ride his narrative to the polls, campaigning even if in hand cuffs and an ankle monitor. He is, he will make clear, the victim of a Democratic plot to weaponize “justice,” dating back to 2016 when Hillary was let off scot-free for her email shenanigans, followed by the FBI’s concocted Russiagate, two impeachments, and now a carousel of indictments. His opponent is Joe Biden, older than Yoda but presenting more like Jar Jar, crooked in cahoots with his scum bag son to hard suck bribe money out of eastern Europe. Sleepy Joe’s narrative is to count on the same FBI going after Trump with both barrels to shuffle its feet investigating him and Hunter through the election, with a final surge under the slogan “Oh who cares, I’m not Trump!” to wrap things up. It’s all a rich tapestry.

    The problem is it is compelling; there is a lot of truth underneath the showmanship. There was David Petraeus, Obama’s CIA Director, who leaked secret docs to his girlfriend, and Sandy Berger, Clinton’s NSA Director, who stole secret docs. But it was Hillary who did get away with it all, at the FBI’s discretion (so much for one law for everyone) what Trump has been accused of in Mar-a-Lago. Hillary Clinton maintained an unsecured private email server which processed classified material on a daily basis. Her server held at least 110 known messages containing classified information, including e-mail chains classified at the Top Secret/Special Access Program level, the highest level of civilian classification. The FBI found classified intelligence improperly stored and transmitted on Clinton’s server “was compromised by unauthorized individuals, to include foreign governments or intelligence services, via cyber intrusion or other means.”

    Clinton and her team destroyed tens of thousands of emails, evidence, as well as physical phones and Blackberries which potentially held evidence — obstruction as clear as it comes. She operated the server out of her home kitchen despite the presence of the Secret Service on property who failed to report it. A server in a closet is not as dramatic a visual as boxes of classified stored in a shower room, but justice is supposed to be blind. More recently, what of Mike Pence and Joe Biden, both of whom have escaped indictment so far on similar charges of mishandling classified information. Trump voters know if the FBI is going to take a similar fact sets and ignore one while aggressively pursuing another, it is partial and political. No matter which candidate wins and loses, DOJ’s credibility is tanked.

    The Stormy Daniels case, and the guilty finding in the Jean Carroll defamation case, reek of politics. Neither case would have seen daylight outside of Democratic hive New York, and neither could have held up outside a partisan justice system that permits it to ignore Jeffrey Epstein’s death in custody or a city in a crime tornado (New York in the past year reduced 52 percent of all felony charges to misdemeanors, opposite of what was done to Trump) while aggressively allowing the system to pursue a decades-old rape case of dubious propriety.

    Witch hunt meet Hunter. New York District Attorney Alvin Bragg ran for office on the promise to prosecute Trump. He fulfilled a campaign promise and paid off his George Soros-connected 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 in the Stormy case.] He stopped it for a while and was pressured to go forward with it. All of that smacks more of politics than prosecutorial discretion.”

    Calling it all a witch hunt is just a starting point. The point here is not innocence; it is whether the justice system is going to take fact sets and ignore one while aggressively pursuing another, risking being seen as partial and political. No matter which candidate wins or loses, credibility is tanked.

    Still to come (at the least) are whatever judicial actions will emerge from the Special Prosecutor over Trump’s role in January 6, and legal action over the 2020 Georgia vote count (with another Democratic openly anti-Trump prosecutor.) Trump jokes in his stump speech nowadays every time he flies over a Blue State he gets another subpoena. He could easily head into the Republican convention to accept the nomination with multiple convictions and/or indictments on his shoulders. It won’t matter. The justice system is going to take fact sets and ignore some while aggressively pursuing others, partial and political plain as day. No matter which candidate wins, credibility is tanked. It grinds that most of the serious charges against Trump are under the hoary Espionage Act, seen by many as reviving the now-discredited trope Trump was a Russian agent.

    Mostly overlooked for now is how much of the apparent evidence against Trump at Mar-a-Lago came from his own attorneys. Attorney-client privilege is recognized as one of the cornerstones of fairness in our system. In the Trump case, the Justice Department used the one major exception to privilege, when the communication is intended to further a criminal or fraudulent act, to compel Trump’s lawyers to give evidence against their own client. Justice asserted Trump lied to his own team about having no more classified documents, and that this constituted a crime of fraud and maybe obstruction, and thus privilege is not available and Trump’s lawyer can be made to testify against his client. The crime or fraud exception to attorney-client privilege itself has a long history, dating back to English common law. In the United States, the crime or fraud exception was first recognized by the Supreme Court in the 1840 case of United States v. Privileged Communications. But Trump’s supporters are unlikely to read deeply into the case law; all they’ll see is what looks like strong-arm tactics by the Department of Justice. No matter which candidate wins and loses, DOJ’s credibility is tanked.

    The thing is no one has to work very hard to convince Trump supporters of the truth of what he is saying, that he is the victim. Trump support remained unmoved by the many investigations that plagued his presidency. Even during peak crises, views of him were static. Post-presidency polls continued the trend. Public opinion of Trump remains remarkably stable, despite his unprecedented legal challenges, and about half of Americans do not see his behavior as disqualifying, sharper if you divide along partisan lines. When asked if Trump’s legal troubles would impact their views of him, two-thirds of his supporters said it would not make a difference. That’s a committed bunch. Perhaps just as important, 57 percent of voters, including one-third of Democrats, said the indictment in New York earlier this year was politically motivated.

    No one can say who will win in November 2024, but one loser is certain, faith in the rule of law by a large number of Americans. They will leave the polls certain the system was bent to “get” Trump, either saddened by the fall of blind justice or saddened that it did not work and Trump remined a powerful figure with a large movement behind him, either in or out of the Oval Office.

     

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Biden, Democracy, Trump

    Hey, What Ever Happened To…

    October 21, 2019 // 21 Comments »

    Hey, what ever happened to…
     
    -Kids in cages. They still there? Problem fixed? When I Googled it the last articles were from June.
     
    -Those thousands dead in Puerto Rico from the storm… anyone find those thousands of bodies yet or is it still just a statistical construct?
     
    -Jeffrey Epstein and all the important people who were going to jail as pedos?
     
    -The Parkland Kids. They fix that gun violence thing yet? UPDATE: The last references to these kids are clustered around the one year anniversary of the killings, back in February 2019 when the media claimed they “successfully drove the kind of change that has long eluded gun control activists.” Not much mention after that.
     
    -Those bogus Trump kids’ security clearances we were going to impeach over?
     
    -Stormy Daniels? Doing OK? Which Home Depot does Michael Avenatti work at?
     
    -Congressional hearings over Trump’s obstruction, when are those scheduled for?
     
    -Anybody know what happened to the recession that was supposed to have started multiple times? Any word on the inverted bond yield curve we all became experts on one week? UPDATE: Apparently the curve is “back to normal” and thus not signaling a recession but I had to dig for this information.
    -Hey, what happened to the Kurds? Last week it was Kurd-o-rama. This week, not much. Did they all move to the Ukraine? There was supposed to be a genocide; that happen? Are they hiding out with Kids-‘N-Cages, another group we once heard a lot about and then nothing more?
    And to show this didn’t start with Trump (but has accelerated during his time in office):

    -How’s the water in Flint? That used to matter, too.

    -The Yazidi’s? Obama started a whole re-war win Iraq over their supposed genocide.

    -How come Assad stopped “gassing his own people” right around the time American politicians stopped caring about excuses to make war in Syria?

     

    If you can’t tell how you are being manipulated, you’re being manipulated. And good times, that scary terror alert graphic above is from w-a-y back in 2015, when Obama was telling us we had to fight ISIS or they would blow us up. Watch for that to make a comeback.

    Remember all of the above before you send out that next blast about abandoning the Kurds, kids. In a week or two that’ll be soooo last week.

    * Wait, no, seriously, what happened to the Kids In Cages? All the articles I can find go back to the summer, and in August we were debated whether or not these were actual concentration camps inside the United States. There were some very mediagenic visits to the border by Democrats, full of drama about people drinking from toilets. Congress voted a bunch of money, and some policy changes took place. So, did Trump… resolve the problem? If so, we should probably talk about that. Are there still kids in cages? Then we should be talking about that. Instead, nothing.

    People who will Google “Kurds” and link to some random article, alert! This is basically sarcasm, not a plea to search the web. I am trying to show how people are manipulated into weekly outrages by the media, only to forget when some new outrage is the rage. The hope is to wake someone up before they overreact on cue to the next thing. Thanks!

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Biden, Democracy, Trump

    Why Trump is Unlikely to Be Indicted or Impeached for Campaign Finance Crimes

    December 12, 2018 // 14 Comments »

    Almost overnight the focus of Russiagate shifted from treason and Trump as a Russian asset to a hyperfocus on payoffs to two women Trump slept with years ago. But even if it can be shown Donald Trump’s actions toward those two women are actually chargeable crimes, he will not be indicted while in office.

    That leaves impeachment, over acts the president did before being elected. We are in a load of trouble if there is a way to impeach a president essentially retroactively, for things done before he assumed office. This is Twitter-think gone wild, destroying people for old Tweets written in some cases years ago, or holding a Supreme Court nomination hostage to yearbook scribbles. The politics of personal destruction. Let’s see where things stand.

     

    Indictment?

    Before getting into the specifics of Trump, Cohen and those payoffs, it is clear the attorneys of the Southern District of New York (SDNY), under the control of the U.S. Department of Justice, will not be permitted to break long tradition (here’s the document from the Office of the Legal Counsel which establishes it would be unconstitutional to indict) and indict a sitting president. No one will say it, but no one wants that door opened, even to get Trump; if it is, every future president can expect to find himself endlessly enveloped in frivolous indictments from prosecutors seeking to make a name for themselves and/or score political points by turning an opinion into a headline. Nope, nobody is throwing Baby political safety out with the bathwater of Trump.

    There is also crazy talk SDNY is preparing the indictment against Trump now, to file against him the day he leaves office in 2021 (assuming he loses the election to Hillary/Beto or whomever), a new level of pointless revenge in America that won’t happen. No newly-elected Democratic president wants to send that Third World vengeance message alongside of obligatory “time to heal” rhetoric. And of course if Trump is elected to a second term the SDNY indictments disappear; there is a five year statute of limitations on any 2016 election finance crimes such as Trump might be accused of. As New York magazine put it in a headline, “Trump 2020 Shaping Up to Be a Campaign to Stay Out of Prison.”

    Indictment of trump, now or in the future, seems headed nowhere. But we’ll talk about it endlessly anyway.

     

    A Tale of Two Women

    So bottom line: SDNY isn’t going to do anything. It’s impeachment or nothing from the Democratic House starting in January.

    There are two women, Stormy Daniels and Karen McDougal, at the center of all this. Both are alleged to have had affairs with Trump, and both are said to have received money to not speak of those affairs (though they have.) You can in fact pay people to shut up about affairs. That happens all the time. It is not illegal.

    The fact is Trump could have made the payment himself without violating the law. In the simplest version, if Trump had paid the women with money clearly his own, with a note attached saying “No politics, this is only to spare my family shame, you filthy bimbo,” there would be absolutely no crime. Sleaze, disgrace, cravenness, yes, of course. But the crime, if it exists, is based on the way this was done, not that it was done. So can any of this be criminalized to the extent that it becomes the “high crime or misdemeanor” necessary to impeach Trump?

    Let’s start with Stormy.

    Stormy Daniels

    For Stormy’s $130,000 payoff to morph into something illegal, it will be necessary for someone to determine the money paid her came from campaign funds, that it was a donation. If it was 100% Trump’s private money, there is no case. Nothing Mueller or the SDNY has released has said where the money came from. Think about think how complex Trump’s finances are. Proving the money was campaign funds is a critical part of this. Keep in mind the idea that campaign funds are illegal to use here hinges on none of this cash was Trump’s own money, even money he donated himself to his own campaign. The illegal part is based mostly on a $2,700 donation limit imposed on the supposed “giver,” Michael Cohen in this case, a limit which does not apply to the candidate himself. The campaign funds part comes in in tracking the source of the cash used to reimburse Cohen.

    In short, the payment is not a donation if it was made for an expense that was independent of the campaign – that is, money that would have been paid even if there were no campaign.

    If the money can be shown to be campaign funds or a donation by Cohen, one next has to prove the purpose of the payoff was to influence the election, not say to prevent shaming Trump’s family. Absent hard information to the contrary, Trump could claim he wanted to hide the affair say from his young son reading about it in the media, and maybe even show he’s been paying off women for decades, long before he ran for president, as proof that Stormy was just another in a long line of galpals paid to shut up after the deed.

    If the money can be shown to be campaign funds and somehow intent was clear, then impeachment would still require tying all that to Trump, because as things stand at this moment, it was Trump lawyer Michael Cohen who paid the money out with whatever intent Cohen himself had at that time. Trump himself did not pay anything to Stormy per se.

    Cohen, in his guilty pleas seeking lenient sentences on his unrelated tax cheating convictions, says that was the case, for him, that his intent was to influence the election. We currently have only his word that it was also Trump’s intent when (again, only on Cohen’s word) Trump ordered him to make the payoff. Absent additional information, those key elements of the crime depend on convicted felon Michael Cohen’s impeachment testimony from his jail cell as to culpability and intent of the president.

    Then there is the question of the money again. Cohen claims he paid Stormy using his own personal funds, and then was reimbursed by Trump. Assuming that is true, then step one (above) would be to prove the reimbursement money came from campaign donations and Trump knew the money was being reimbursed for the payoff specifically. Intent is very much a factor in proving a crime here. So if say Cohen sent an unitemized invoice (as Rudy Giuliani has suggested) to Trump for a dollar amount simply for “services rendered” (call it plausible denial), Trump can claim he had no idea the money was being used illegally. So hopefully someone will produce a receipt annotated “Shady Payoff to Stormy.”

    This is a complicated case to prove — that the payoffs were in fact “campaign donations,” that the intent was to influence an election after Trump had already made clear to the electorate his sleazy background with women, that Trump knew in detail what Cohen said was done by him, and that Trump ordered these things to happen. That would mostly leave Trump guilty of some sort of “conspiracy to…” charge, something second hand the public might see as short of impeachable.

    The fact that Cohen chose to plead guilty to campaign finance crimes seeking a lighter sentence means that none of these questions were ever contested in a court, nothing was proven, no evidence produced, and no witnesses called and examined. Cohen’s choice to plead guilty is not prima facie evidence of the truth of any of this. His guilty plea is not “evidence” in the impeachment of Trump, though Cohen would obviously be a key witness.

    One can imagine the media circus as Cohen, maybe clad in an orange jumpsuit on day pass from some Federal prison, testifies alongside Stormy Daniels, whose skills at anal sex are watchable on Porhub turning breaks in the proceedings. Also,

    A federal judge on Tuesday ordered Stormy Daniels to pay nearly $300,000 in legal fees to Trump over a defamation lawsuit dismissed on October 15 to add to the gathering of shame. Bazinga!

     

    Karen McDougal

    If the number of elements which must be proven to impeach Trump over what happened with Stormy seems a long road, the case of Karen McDougal is even more complex.

    In McDougal’s case, Cohen claims he paid $150,000 in Trump money to David Pecker (you can’t make this stuff up), who runs American Media, which controls the National Enquirer. Pecker then supposedly used that money to buy exclusive rights to McDougal’s story of sex with Trump with the intent of never publishing the tale, thus burying it. Although Cohen said he would reimburse Pecker (and then Cohen would be reimbursed by Trump), the reimbursement did not happen. So the crime here is Cohen causing a third party (Pecker) to make an illegal contribution.

    Illegal contribution? Well, that’s another point in both cases, Stormy and McDougal. For these cases to add up to crimes, instead of a legal payoff to remain quiet/buy the rights to a story, the House would have to somehow conclude the money was actually a contribution to Trump’s campaign, a contribution either made illegally beyond allowable limits, or made illegally to influence the election, or made illegally just because it wasn’t disclosed. If the whole mess was to be heard in a real court, this point of law would be a showstopper, and a focal point for both sides to contest. How it will be adjudicated in front of Congress is anyone’s guess, but expect Trump’s defense team, if things get that far, to try and move the question out of Congress and into a real court.

    Another element is it must be shown Pecker spiked the McDougal story to influence the election, not simply as an editorial decision. Fun fact: prosecutors first granted Pecker (and another American Media executive, Dylan Howard) immunity to testify in this case. They then announced a “Non-Prosecution Agreement” with American Media, which quickly said the whole thing was political. No one is above the law, unless you are willing to testify against someone more important than you, in which case you get off scot-free for your own crimes!

    And maybe someday we can talk about the third world system we are watching play out where plea bargains and lesser sentences are bartered for nasty testimony.

     

    The Jury of Us

    Proving the many legal points is hard enough, but that’s just the beginning of the real test. This is all about the politics of destruction; Democrats couldn’t beat Trump n 2016, they couldn’t gin up enough Russia-fever to get him, and so may choose to settle on working these payoffs as their last act.

    Keep in mind all of the above elements will need to be proven in hearings held in the House, with witnesses and defense teams, all no doubt televised. There is a difference between what a prosecutor asserts in a one-sided filing designed (see the job title, “to prosecute,” the other side is called the defense) to present someone as guilty, and proving those same elements of an actual on-the-books crime, with evidence. There is a difference between what you so desperately want to believe is true, and what actually is true under the Rule of Law you also believe is so in danger but would throw away in a heartbeat to oust Trump.

    Democrats will have to answer in a way average Americans will agree with how this is all so different from when it was discovered Barack Obama’s 2008 presidential campaign was guilty of violations involving nearly $2 million – an amount that dwarfs the $280,000 in Cohen’s case – the Obama Justice Department decided not to prosecute. Instead, the matter was quietly disposed of by a $375,000 fine by the Federal Election Commission. How’d we go from a fine to impeachment anyway?

    To be sure, SDNY prosecutors have charged election finance violations as felonies before, most notably in 2014 against conservative Dinesh D’Souza, whom Trump later pardoned. That no doubt displeased the folks at SDNY, so there’s an element of shallow revenge for the public to chew on as well.

    Politics

    The story will unfold in the context of hearings where the real jury are the Americans who’ll vote in 2020. Since absent some bombshell the Republican Senate will never convict Trump no matter what the House does, this is all for show, and we’re the audience. Democrats thinking this all through must remember the dumpster fire of the Bill Clinton impeachment, where in return for their efforts to trump up similar charges and their actual impeachment vote against Clinton, they ended up with the voters turning against them, sick of the whole thing and ultimately taking Bill’s side more or less-ish.

    Can the Democrats really expect to convince a large number of Americans that in his third year in office, Trump needs to be impeached over a violation of conspiracy to violate Section 30116(a)(7)(A) of the election laws which occurred before he was even elected? That the 2016 election needs to be overturned for that, for the good of the country, and that this wasn’t just the politics of personal destruction out of control again, as we saw with Kavanaugh?

    They might. The Democrats from Day One have wanted to put an asterisk by Trump’s election. The Russiagate-collusion narrative has turned dusty and old. It isn’t as easy to understand or as sexy as a pee tape, but in its place Dems may try and use Trump’s payments to two mistresses as a way of locking in their narrative that Trump won by cheating. Mueller is a man of the Deep State, a fixer for them, and his dirty hands are being well-employed with fixing the problem of Trump being elected when the Plan was always for Hillary.

    Or maybe not. I don’t think the Dems will risk it. I don’t think Trump is going to face impeachment, or indictment. There will be a flow of noise and threats and dire Maddow-esque predictions, but this all ends one way or another with the election of 2020, not impeachment or indictment.

     

    BONUS

    It’s easy to forget the special prosecutor who sent Bill Clinton into impeachment began with the financial mess of Whitewater and ended with Monica Lewinsky and lying to Congress, even as Mueller started with Putin controlling the Oval Office and seems likely to end with payoffs to a porn star.

    The concept of appointing a Special Prosecutor with the task of finding SOMETHING to try and overthrown an election is an ugly one. While so many Americans are near-joyful over each crumb that suggests Trump is in deeper trouble, I wonder how they’ll feel when a Special Prosecutor becomes a standard opposition weapon used against a president they like. A reminder you can’t put the genie back in the bottle.

    BONUS BONUS

    And yes, to save some time, let’s just assume all the people who have commented for 2.5 years “But just wait!” have already done that again here, ‘kay?

     

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Biden, Democracy, Trump

    Mueller’s End Game

    December 11, 2018 // 12 Comments »

    A baby born when Robert Mueller started his investigation would be talking by now. But would she have anything to say?

    We last looked at what Mueller had publicly, and what he didn’t have, some ten months ago, and cautioned skepticism that he would prove “collusion.” It’s worth another look now, but we’ll give away the ending: there is still no real evidence of, well, much of anything significant about Russiagate. One thing clear is the investigation seems to be ending. Mueller’s office reportedly even told various defense lawyers it is “tying up loose ends.” The moment to wrap things up is politically right as well; the Democrats will soon take control of the House and it is time to hand this all off to them.

     

    Ten months ago the big news was Paul Manafort flipped; that seems to have turned out to be mostly a bust, as we know now he lied like a rug to the Feds and cooperated with the Trump defense team as some sort of mole inside Mueller’s investigation (a heavily-redacted memo about Manafort’s lies, released by Mueller on Friday, adds no significant new details to the Russiagate narrative.) George Papadopoulos has already been in and out of jail — all of two weeks — for his sideshow role, Michael Avenatti is now a woman beater who is just figuring out he’s washed up, Stormy Daniels owes Trump over $300k in fees after losing to him in court, there is no pee tape, and if you don’t recall how unimportant Carter Page and Richard Gates turned out to be (or even remember who they are), well, there is your assessment of all the hysterical commentary that accompanied them a few headlines ago.

    The big reveal of the Michael Flynn sentencing memo on Tuesday was he will likely do no prison time. Everything of substance in the memo was redacted, so there is little insight available. If you insist on speculation, try this: it’s hard to believe something really big and bad happened such that Flynn knew about it but still wasn’t worth punishing for it, and now, a year after he started cooperating with the government, nobody has heard anything about whatever the big deal is. So chances are the redactions focus on foreign lobbying in the U.S.

     

    This week’s Key to Everything is Michael Cohen, the guy who lied out of self-interest for Trump until last week when we learned he is also willing to lie, er, testify against Trump out of self-interest. If you take Cohen’s most recent statements at face value the sum is failed negotiations we all knew about already to build a Trump hotel in Moscow went on a few months longer than originally stated. Meanwhile, the U.S. Attorney’s Office for the Southern District of New York submitted a sentencing memo Friday for Cohen recommending 42 months in jail. In a separate filing, Mueller made no term recommendation but praised Cohen for his “significant efforts to assist the special counsel’s office.” The memos reveal no new information.

    Call it as sleazy as you want, but looking into a real estate deal is neither a high crime nor a misdemeanor, even if it’s in Russia. Conspiracy law requires an agreement to commit a crime, not just the media declaiming “Cohen was communicating directly with the Kremlin!” Talking about meeting Russian persons is not a crime, nor is meeting with them. The takeaway this was all about influence buying by the Russkies falls flat. If Putin sought to ensnare Trump, why didn’t he find a way for the deal to actually go through? Mueller has to be able to prove actual crimes by the president, not just twist our underclothes into a weekly conspiratorial knot. For fun, look here at the creative writing needed to even suggest anything illegal. Doesn’t sound like Trump’s on thin ice with hot shoes.

     

    Sigh. It is useful at this point of binge-watching the Mueller mini-series to go back to the beginning.

    The origin story for all things Russiagate is a less-than-complete intelligence finding hackers, linked to the Russian government, stole emails from the Democratic National Committee (DNC) in 2016. The details have never been released, no U.S. law enforcement agency has ever seen the server/scene of the crime, and Mueller’s dramatic indictments of said hackers, released as Trump met with Putin in Helsinki, will never be heard of again, or challenged, as none of his defendants will ever leave Russia. Meanwhile, despite contemporaneous denials of the same, it is now somehow accepted knowledge the emails (and Facebook ads!) had some unproven major affect on the election.

    The origin story for everything else, that Trump is beholden to Putin for favors granted or via blackmail, is opposition research purchased by the Democrats and carried out by an MI6 operative with complex connections into American intelligence, the salacious Steele Dossier. The FBI, under a Democratic-controlled Justice Department, then sought warrants to spy on the nominated GOP candidate for president, based on evidence paid for by his opponent.

    Yet the real origin story for all things Russiagate is the media, inflamed by Democrats, searching for why Trump won (because it can’t be anything to do with Hillary, and “all white people and the Electoral College are racists” just doesn’t hold up.) Their position is Trump must have done something wrong, and Robert Mueller, despite helping squash a Bush-era money-laundering probe, lying about the Iraq War, and flubbing the post-9/11 anthrax investigation, has been resurrected with Jedi superpowers to find it. It might be collusion with Russia or Wikileaks, or a pee tape, or taxes, all packaged as hard news but reading like Game of Thrones plot speculation. None of that is journalism to be proud of, and it underlies everything Mueller.

    As the NYT said in a rare moment of candor, “From the day the Mueller investigation began, opponents of the president have hungered for that report, or an indictment waiting just around the corner, as the source text for an incantation to whisk Mr. Trump out of office and set everything back to normal again.”

    The core problem is Mueller just hasn’t found a crime connected with Russiagate someone working for Trump might have committed. His investigation to date hasn’t been a search for the guilty party, Colonel Mustard in the library, but a search for an actual underlying crime, some crime, any crime. All Mueller has uncovered are some old financial misdealing by Manafort and chums that took place before and outside of the Trump campaign, payoffs to Trump’s mistresses which are not in themselves inherently illegal (despite what prosecutors simply assert in the Cohen sentencing report, someone will have to prove to a jury the money was from campaign funds and the transactions were “for the purpose of influencing” federal elections, not say simply “protecting his family from shame.” Cohen’s guilty pleas cannot legally be considered evidence of someone else’s guilt), and a bunch of people lying about unrelated matters.

     

    And that’s the give away to Muller’s final report. There was no base crime as the starting point of the investigation. With Watergate there was the break-in at Democratic National Headquarters. With Russiagate you had… Trump winning the election (remembering the FBI concluded the DNC hack was done by the Russians forever ago, no Mueller needed.)

    Almost everything Mueller has, the perjury and lying cases, are crimes he created through the process of investigating. He’s Schroeder’s Box; the crimes only exist when he tries to look at them. Mueller created most of his booked charges by asking questions he already knew the answers to, hoping his witness would lie and commit a new crime literally in front of him. Nobody should be proud of lying, but it seems a helluva way to contest a completed election as Trump enters the third year of his term.

    Mueller’s end product, his report, will most likely claim a lot of unsavory things went on. But it seems increasingly unlikely he’ll have evidence Trump worked with Russia to win the election, and even less likely that Trump is now under Putin’s control. If Mueller had a smoking gun we’d be watching impeachment hearings by now.

    Instead Mueller will end up concluding some people may have sort of maybe tried to interfere with an investigation into what turned out to be nothing, another “crime” that exists only because there was an investigation to trigger it. He’ll dump that steaming pile of legal ambiguity into the lap of the Democratic House to hold hearings on from now until global warming claims the city of Benghazi and returns it to the sea. Or the 2020 election, whichever comes first.

     

    BONUS:

    The uber-point of all this Ocean’s Nineteen-level conspiracy is supposedly so Putin can, whatever, sow dissent in America. Because if he wanted a puppet in the Oval Office it has been a damn poor return on investment — sanctions are still in place, NATO is still on Russia’s border, Montenegro joined NATO, Trump approved arms sales to the Ukraine, RT and Sputnik are sidelined as registered foreign agents, Cold Warrior-like hardliners Bolton and Pompeo are in power, the U.S. just delivered Russia an ultimatum on an arms control treaty that could return some American missiles to Europe, and more. On the plus side, there were those friendly Tweets.

    Along the way new journalistic “norms” were created: Trump is too stupid to have made his money, so it must be ill-gotten. Trump did real estate deals in NYC and so is mobbed up. Trump’s taxes (albeit available to the IRS and Treasury for decades, the FBI and Mueller via warrant for years) hide secrets. Meanwhile, everyone in Russia with a few bucks is an oligarch, and everyone who anyone from the Trump side spoke with is “connected to Putin.” Trump doesn’t have lawyers, he has fixers and consigliere.

    These tropes allow journalists to communicate in a kind of shorthand with the rubes who still imagine something will happen to annul the 2016 election. They allow each mini-development to appear to be a major event, as in the mind of the media everything is related, and everything accumulative. So a lie about a real estate deal in Russia is HUGE because it has something to do with Russia and see that connects all the dots!

    None of that is journalism to be proud of, and it underlies everything Mueller. It is almost sad looking back at the old articles and TV tales to see how excited everyone got — Flynn was indicated! Sessions recused himself! Comey will save us! The Nunes Memo! They all used to matter sooooo much. Outlets like the NYT and WaPo rolled out a “source close to the White House” to comment whatever just happened means Mueller is getting close to nailing Trump. The nutters who took over once cogent places like HuffPo and Salon run “reporting” that reads like Game of Thrones plot speculation. Everybody runs the same headlines: BREAKING: Reports: Sources: Trump Fixer to Flip; Avenatti Says “Orange is the New Black, Buttercup!”

    As one writer puts it, “For the last two years the mass media machine has been behaving very, very strangely, and it isn’t getting better, it’s getting worse. Not since the lead-up to the invasion of Iraq have we seen mainstream media outlets trying to shove narratives down our throats so desperately and aggressively.”




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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Biden, Democracy, Trump