• Trump (and Georgia) On My Mind

    May 14, 2022 // 1 Comment »

    One of my kids is studying law, and I’ve read a bit over her shoulder as she prepped for exams. Two critical things stand out: unlike in literature, words in the law have very specific meanings (lie, fraud, possess, assault), and intent matters quite a bit. The latter is very important, because people say things all the time they do not mean, such as “If Joe in Sales misses that deadline I’m gonna kill someone.” No one’s life is actually in danger, we all understand. Same for all those neighbors who were going to but never did move to Costa Rica if Trump was elected.

    Misunderstanding words as moving from the general to the very specific when you pull them out of a conversation and try to bring them to court, and determining intent based on what you “believe,” are really at the root of the ever-growing string of failed legal actions against Trump (there are some 19 still pending.) We have, and this is just hitting the highlights, all of Russiagate, the Mueller Report, Impeachment I, Impeachment II, Stormy Daniels, failed accusations of real estate valuation fraud in New York and most recently, a grand jury seated to look into election fraud in Georgia.

    For example, in Impeachment I, the Ukraine caper, the entire brouhaha hinged on Donald Trump’s own words in the transcript of his call with the Ukrainian president. But did they mean Trump was demanding foreign interference in the 2020 election? Or was he asking an ally to run down unethical actions by Joe Biden as a public service before he might become president? What was Trump’s intention when he said “A lot of people want to find out about that so whatever you can do with the attorney general would be great.” Later in the call Trump suggested some aid to Ukraine might be withheld, though not in specific reference to any investigation into Biden.

    The people who brought the impeachment proceedings decided all that constituted an illegal solicitation of a foreign in-kind contribution to Trump’s re-election campaign, maybe even extortion. The allegation was referred to the Justice Department, which declined charges. Many Democrats though that unfair, failing to see the lack of anything coming of it (i.e., no investigation by Ukraine), the lack of anything withheld (the aid was eventually delivered) and overall the lack of intent to commit a crime by Trump. The legal definition tests for words like solicit and extort were not met and Justice correctly dumped the case and there was no conviction in the Senate.

    Same story in New York, where the facts seemed to support Trump valued real estate at a lower price for tax purposes and a higher price when used as loan collateral. It’s called valuation and is legally done all the time. But some decided saying one thing to one person and another to another person to gain something was “fraud,” and everyone pursuing the case forgot that they also had to prove intent, that Trump lied with the intention to commit a crime and gain by ill begotten methods. The case rightfully collapsed.

    Yep, same with the Stormy Daniels saga, where the facts seemed to be Trump, via Michael Cohen, paid money to Stormy to keep quiet about their affair. Sleazy enough, but paying someone as part of a non-disclosure agreement is not illegal. It would be a crime if the money was paid by Trump with the intent of influencing an election, which he suggested was not true, the cash-for-silence was maybe to protect his marriage. Campaign finance laws require proof a person was willfully violating the law. Prosecutors would have to demonstrate that willingness by Trump alongside showing his principal goal was to influence the election. If this kind of case would have ever reached court, Trump would have simply denied intent.

    Another example can be found in the incitement allegations surrounding the speech Trump made just before his supporters entered the Capitol building January 6. A democracy can’t lock up everyone who stirs up a crowd. Speech which inspires, motivates, or warms the blood cannot be illegal as it is the very stuff of democracy. Trump thought the election was unfair and had a right to say so. Brandenburg v. Ohio refined the modern standard to 1) the speech explicitly or implicitly encourages the use of violence or lawless action; 2) the speaker intends their speech will result in the use of violence or lawless action, and 3) imminent violence or lawless action is the likely result of the speech. Brandenburg is the Supreme Court’s gold standard on what government may do about speech that seeks to incite others to lawlessness.

    The key is always intent. You have to prove, not just speculate, the speaker wanted to cause violence. Listeners’ reaction to speech is not alone a basis for taking action against a speaker. You’d need to prove Trump wanted the crowd to attack the Capitol and set out to find the words to make that happen. It ain’t gonna fly for the January 6 Committee.

    Which brings us to Georgia, where the NYT asks “Will Trump Face a Legal Reckoning in Georgia?”  On January 2, 2020, facing an election loss, Trump called Georgia’s Secretary of State to demand he “find 11,780 votes,”  one more than Joe Biden’s tally. Did Trump encourage the secretary to commit election fraud? That prosecution will fail, as did all of the ones above, for the same two reasons: words are not solely what they seem, and intent is hard to prove.

    For example, to the Democratic lay person “find” means commit election fraud to come up with votes. But well before anything goes to court, it will be made clear that “find” in this context can also mean, in just one example, recount all legal ballots to see if a mistake can be found which legitimately sends more votes to Trump. The other issue is again intent; to prove solicitation of election fraud, Georgia law requires a person intentionally “solicits, requests, commands, importunes or otherwise attempts to cause” another person to engage in election fraud. Trump and his associates need only to maintain they meant “find” as in recount, not as in cheat. Case closed.

    In seeing the same mistakes made over and over, you’d start to think maybe the Democrats need some better lawyers. But don’t worry. Democratic lawyers know just as well as Republican lawyers none of these cases ever had a chance in a real court. Their purpose was purely political, to manufacture some headlines, to influence voters, to create the impression Trump has to be guilty of something if only he could be stopped from wriggling away. The goal is to convince voters to ignore the rule of law and take matters into their own hands in 2024 to stop Trump.

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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 Democracy, Trump

    Trump is Just Not Going to Jail

    May 9, 2022 // 7 Comments »

    If you had “Trump goes to jail” in the office pool, better double-down on “Trump Gets a Minor Civil Fine.”

    The end of any possible criminal prosecution out of New York over Trump’s finances has come as the grand jury seated to find them has sunseted. The possibility of a civil penalty, likely a fine, looks poor but anything is possible. This is all a long way from predictions when these cases were initiated through the Southern District of New York (SDNY) that the walls were supposedly closing in. Dems, dragging all their Biden baggage along, are going to have to beat Trump at the ballot box, assuming anyone can afford the gas to drive out to vote.

    We need not spend too much time on all the failures preceding those of the SDNY, though a list is educational: DNC server, Putin’s agent, all of Russiagate, Mueller Report, Impeachment I, Impeachment II, and Stormy Daniels. The January 6 campaign is floundering. The IRS has had Trump’s taxes in hands for decades without any criminal prosecutions, and the New Jersey Gaming Commission held Trump’s casino financials without incident. It is possible to conclude however much one might hate Trump, he just is not guilty of any crimes.

    Each prosecutorial dream began with the certainty Trump did something wrong, that the evidence was growing, that some stooge would flip (and the mindless Godfather references), followed by… nothing much. The true believers will always believe, but for most Americans the over-stimulus followed by the let down followed by mumblings it all wasn’t fair again have grown tiresome. Yet there are always teachable moments, even in such farce, and the most recent failure in Manhattan to bring down Trump is one of those.

    Like all of the capers, it begins with the premise Trump is sleazy and any success he enjoyed must be due to cheating. In the instant case, the DA claimed The Trump Organization had over-valued some properties to obtain loans from Deutsche Bank, and then under-valued those same properties to pay lower taxes to the city of New York. This is all that’s left in the civil action in New York against Trump. The investigation along these lines has been running since 2019, so far with no actionable results. The most recent legal move was a contempt citation against Trump over not turning over a couple of cell phones, that after Trump already complied with millions of pages of documents and 13 employees of the Trump Organization sent up for interview. The belief seems to be there must be something in there somewhere.

    For anyone who has owned property in New York, either directly like Trump or via the co-op system like millions of middle class New Yorkers, none of this is a headline. It literally happens all the time. For example, Building A sits on land the City has taxed for hundreds of years. The value of that land in that context is hardly in contention. But if someone wanted to use that land as collateral for a loan, they might instead explain how the ground floor of the building is now ready for flush post-Covid clients to return. They might cite a new luxury building across the street, which will raise local real estate prices. They might show how the average tenant stays longer in their building then elsewhere, assuring stability. What something is worth — a building, a Pokeman card, a drink of water in the desert — is very much a negotiation between two sides. This is known as valuation.” There are numerous methods of assessing the value of a property. In New York you have your assessed value, your transitional value (Tax Class 2, 3, and 4 only) and other variables such that there are lawyers who specialize in nothing else.

    Banks, which look to the future to make sure their loan will be profitable, understand well what the DA is trying to avoid, that property valuation is inherently subjective. It is important to note Trump loan seller Deutsche Bank has raised no objections, made no claims of fraud, and has not asked the DA to look into all this. Nope, the Manhattan DA’s office itself scanned the skies over Gotham and decided they saw a crime. Some say it was a political action, because in almost every other value dispute case in New York history the issue was sorted out by negotiation, and at last resort, by a special civil court that does nothing else. No one can say Trump is the only instance where the City has jumped from valuation to a criminal case with a grand jury, but it is damn hard to find another modern example.

    For the New York DA to “win” a political case like this, some written decision by a no-name magistrate judge’s tax court saying Trump should pay some more property tax is far from enough. So, they had to imagine the case as a criminal one, and that’s where everything falls apart (as with obstruction, as with incitement.) Though the law differs with obstruction and incitement to some extent, basically to win these as a criminal cases the DA has to prove criminal intent. So prosecutors would have had to prove not just that Trump inflated the value of his assets, but that he intended to break the law doing so. Even harder is to show the valuation was Trump’s personal decision, near impossible to do with massive, complex corporations where the actual decision maker is traditionally obscured exactly to avoid such liability.

    Prosecutors fell victim to their own prejudices. They had hoped to “flip” Allen Weisselberg, the Trump Organization’s longtime finance chief by drumming up equally weak criminal tax charges against him. Those charges have to do with Weisselberg accepting car service and apartment payments from Trump and allegedly not declaring them properly as income on his taxes. These cases are again typically settled with a fine (though Weisselberg maintains innocence) not jail. The infamous Al Capone tax case is infamous because it was so unique. Weisselberg, with his years of financial experience, has a pretty good idea he is not going to jail and thus has little incentive to rat out Trump if indeed he had anything to rat about.

    That pretty much left prosecutors with Michael Cohen, the guy who pleaded guilty to nine criminal offenses, including lying to Congress, tax fraud, and campaign finance violations. Cohen would have faced questions of personal bias, given his own multiple lawsuits against Trump. He would have faced 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 are still 19 cases pending against Trump, including a number of civil suits. Maybe one of them will land a blow. But none have the potential to be the knock-out punch Dems thought was an easy route to winning 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 Democracy, Trump