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Is an Unheard-of Legal Theory Being Used Against Trump?
A question for lawyers or others with more legal expertise than me.
The Trump hush money trial seems to hinge on Trump’s “intent” when he made the payment to Daniels. Was he merely trying to prevent embarrassment generally, or was he trying to help his campaign by keeping it quiet, in which case it was an unreported campaign contribution in excess of federal limits?
Has the question of intent ever been used in this way before? Obviously intent is often important in legal cases, and should be. It can mean the difference between a murder conviction or an acquittal in the case of a hunting accident, for example.
But this seems different. Clearly, Trump intended to pay Daniels to keep her quiet. So there’s no issue of fact. Normally, it would seem that’s where the factual issue of intent would end. But somehow here it doesn’t. In this case, it goes further into Trump’s subjective intent or state of mind when he made the payment, in terms of what he wanted ultimately to accomplish by it.
Imagine a case where a candidate had a second home on which he couldn’t afford the mortgage payments. He was upside down on the mortgage and so decided to stop making payments. His campaign advisor urges him to bring the mortgage current, at least until the election is over, because it would look bad if there was a foreclosure. And let’s say you could prove all this by emails and testimony. You could prove that the candidate’s intent in starting the mortgage payments again was only to help his campaign. Would that make it a campaign contribution, based only on his subjective state of mind? Of course not, because the payment is a mortgage payment. Subjective state of mind is irrelevant.
If you’re not convinced, look at the flip side: would it be legal to use campaign funds to make such a mortgage payment if the intent was only to help your campaign? Of course not, for the same reason: it’s a mortgage payment, not a campaign contribution. Subjective intent is irrelevant. Even if there was a mind reading machine which could divine the candidate’s subjective intent, it wouldn’t matter.
Similarly, would it have been legal for Trump to use campaign funds to pay Daniels? Of course it wouldn’t be a defense to say, “But if she blabbed it would hurt my campaign! So it was a campaign expense!” Because objectively, it’s not a campaign expense, regardless of what may or may not have been going on in Trump’s mind.
For the first time ever, a former president is being criminally prosecuted. And in this prosecution, it appears that a novel legal theory of subjective intent is being used. A theory in which the crime lies not in a combination of intent and action, but in intent alone. This is not the way intent is supposed to be used in the law. I bet this is the only time in American history it’s ever been used like this. Prove me wrong.
Published in General
I should have mentioned, something like this theory was used unsuccessfully against John Edwards, although the facts were different.
John Eastman was just disbarred for using a novel legal theory.
The merits of this case are garbage. THis is all political.
Banana Republic stuff.
But, Hey I am neither a lawyer, nor a professional journalist.
Election expenditures happen by the millions each election cycle. Normally, if something is ambiguous or dual-purpose between campaign and personal the Election Commission will leave it up to the candidate to decide. That is, there is no problem unless the candidate clearly broke the law.
Yes, Bragg is interpreting the federal law incorrectly to get Trump.
The problem is not that Trump paid her to keep quiet. They’re going after him because he had Michael Cohen set up a shell company, Essential Consultants LLC in Delaware to do it. And then the non-disclosure agreement was made between “Peggy Peterson” and “David Dennison.”
Cohen then seeks reimbursement from the Trump Organization and the money is labled as “legal fees” on the books. Now, businesses can deduct legal expenses, but individuals usually cannot. Part of Bragg’s argument is that Trump laundered the money through Cohen and his shell company and claimed the deductions for the Trump Organization on the NY State corporate tax. He probably would have been free and clear if he had paid her out of campaign funds.
Lots of lawyers say this is all bogus, that Bragg has twisted thing to make a misdemeanor a felony.
Even people who don’t like Trump.
I don’t think this is Trump’s fault, which you seem to be implying.
Let’s just say that Mr. Trump opens the doors for many of his own problems. Whether or not Bragg has overcharged is a separate question that will answered at trial. (Or at minimum, on appeal.) He and Cohen didn’t have to come up with such an elaborate deception to exchange money for an NDA.
I’m not a Trump fan, I’ll vote for his as the lesser of two evils, but the current prosecutions seem to be another example of the Progressives’ use of the “legal” system whereby the process is the punishment.
In addition preventing his campaigning, it is an effort to destroy his businesses and tie up his finances.
But the falsification of records would be a misdemeanor without it being hooked into the campaign contribution issue.
Sure.
And the egregious nature of this is just not worth mentioning.
I have no idea if that’s true or not. Tax codes are by their very nature a minefield and I wouldn’t venture on a guess about NY State. I only know that when they come after you on the tax code you’re usually screwed. Ask Al Capone and Spiro Agnew.
To the extent they’re trying to make it a federal crime – which the DOJ declined, but they did it to bypass the statute of limitations – it’s not within Alvin Bragg’s purview anyway.
Except that’s not true. There are no federal charges. He is charged with multiple violations of NY State law § 175.10
I am just going on what Lawyers have said.
Of course, they are not Professional Journalists. They may not understand that law as well as you do.
I understand the concept of dealing with primary sources. It’s not a difficult concept. Try it sometime.
Well then. You know better than lawyers.
I bow to the expertise of THE Ethical Professional Journalist at Ricochet
My understanding is that the falsification has to be in furtherance of an additional crime in order for it to be a felony. In this case, the prosecution has made the campaign funds issue that additional crime. And it’s that issue which seems to me to rely on a bizarre understanding of “intent”. If someone spent campaign funds on hush money, they’d be prosecuted because hush money isn’t defined as a valid campaign expense. But when Trump spends his own funds on it, he’s prosecuted for making an undisclosed campaign contribution? (Or falsifying records related to that) You can’t have it both ways. Is hush money a campaign expense or not? In this case, the prosecution is saying the answer to that question depends not upon a legal definition of that term, but upon something going on in Trump’s head.
OK, if you’re going to say that we should always bow to the judgement of lawyers then why are you questioning the expertise of Alvin Bragg (Harvard Law ‘99), Fani Willis (Emory ‘96), Jack Smith (Harvard Law ‘94), or the Hon. Juan Merchan (Hofstra ‘94)? Or is credentialism something you only argue as a convenience?
Except for the rare instances where people insist on representing themselves, 100% of cases argued before the bar are argued by lawyers. And even then 50% of them are wrong and lose their case. So, even a journalist has a 50-50 chance of being right on the law. Even a psychologist has the same odds.
The internet is a wonderful thing. Barring national security questions, indictments and the laws they charge are all on line.
If someone says Bragg is overreaching by bringing federal charges that is demonstrably false. It is also possible that that just because the DOJ didn’t wish to prosecute federal laws, it is still possible Trump broke the laws of the State of New York. It’s not an either/or situation.
Hey, if you want to go with Democrats blatantly shilling for novel productions fine.
I’ll stick with John Hinderoker and Andrew McCarthy.
What is telling here is that while the majority of conservatives think this is crap, you are giving them the benefit of the doubt.
Interesting.
I cited the entire text of the statute above. And until the case is presented I have no idea how Bragg plans to prove Trump’s intentions.
And this is Trump’s plan. His primary aim is not to allow any evidence to be laid out but to wage a PR war to stop the trials in their tracks. That strategy actually bit him in the rear in the E. Jean Carroll case. If he had bothered to show up and present a defense in the original civil case he may not have had to defend himself against defamation.
I keep hearing from Trump defenders that all of this “Lawfare” is bogus and weak sauce. If that’s true then what’s the worry? The problem is that while we’ve all read the indictments none of us have seen the evidence.
Bragg’s case will revolve around the convoluted nature of the payment. Why didn’t he just wire her the money? Why the dummy shell company? Why the pseudonyms on the NDA? Why the “catch and release” strategy with the National Enquirer? What was his intention?
More importantly what evidence has Michael Cohen provided to the DA to lift the veil off of those intentions? I don’t know and no one else speculating on this case knows either until the case is presented in court.
“Journalists should be objective! Except when I say they shouldn’t be!”
Well NY state already owes Trump a huge bundle of monies as a refund for his “over valuing” the properties he owns in NY state.
I’d love to see Mr Trump demand those refunds.
More power to him. I can think of worse things to pay lawyers to do. Come to think of it, most of those worse things seems to be Trump’s entire legal strategy.
The argument is based on what’s going on in his head because Trump used his own money and was also funding his campaign with his own money. They want to label Trump’s use of his money in this way as a campaign contribution and not personal use of his own money. The only way to get there is through his intent.
It is bogus because campaign finance laws are to protect donors from being scammed through grift. Not to prevent people from using their own personal finances as they see fit. The whole thing is moot.
And she’ll corporations are legal, in and of themselves. It is illegal activity that is laundered through them that is… well… illegal.
Trump did nothing illegal here – it was his money. Hiding his identity through a shell corp is meaningless since the acquiring of the money, use of the money, and spending of the money was all legal. If he had been embezzling campaign funds, it would be illegal activity. Hence why the prosecutor is going after intent – because it was Trump’s OWN MONEY. And anyone who thinks this is kosher needs meds for TDS.
That is demonstrably untrue. Trump’s self financing of his 2016 campaign was just under 20%. If you’re thinking of the federal campaign matching fund, the last major party candidate to use that was John McCain in 2008. Neither side wants them because if you use them it limits how much you can spend.
It wasn’t “all his money.” Some of that belonged to David Peck, the then-owner of the National Enquirer. Peck would solicit damaging stories against Trump, sign the accuser to an exclusivity agreement, cut them a check and then refuse to run the story. If they broke the exclusivity agreement the damages were twice what they were paid for the story. This is where the campaign finance laws come into play. Even if he were reimbursed by Trump did Peck’s participation in the scheme amount to an above-the-limit contribution since it was not for Trump’s personal benefit but the benefit the campaign?
Wait… are you arguing that Trump only funded 20% of his campaign? So really, the pay off has absolutely no tie to his campaign at all?
And still they are prosecuting him for spending his own personal finances?
I’m not arguing that, it’s a fact. Of the entire amount Trump spent in 2016, only 20% of that was Trump’s own money. And the overwhelming majority of that was spent during the primaries. 71% of the money Trump used in securing the 2016 nomination was his.
A candidate can lend his campaign unlimited amounts of money but he has to report it to the FEC. If a third party makes a loan to a candidate that is subject to personal campaign limits (bank loans are not.) If David Peck exceeded the limit and the Trump Organization conspired to hide that by falsifying business records that would be a crime. As I understand it, it would not be necessary for the Feds to have actually prosecuted that crime, for the coverup to be a crime under NY law. That’s the intent Bragg has to prove.
Laws which require us to pretend we can read minds to determine intent invite corruption and abuse. If the act is grave enough (e.g. murder), perhaps that’s the best we can do. But in trivial cases, and this is about as trivial as it gets, it’s a waste of time and energy. Who is the injured party here? If you find yourself starting to formulate an answer to that, don’t bother; I don’t care — again, waste of time and energy. This is the lowest kind of political warfare. A pox on all their houses.
Nah. I expect Journalist to speak to all the facts, not cherry pick.
As usual, EJ, you put words into my mouth to insult me.
You really have become the new Blue Yeti!
From an Actual Lawyer not just a Journalist.
https://www.powerlineblog.com/archives/2024/04/trump-goes-on-trial.php
And from an earlier work (linked in the article itself)
I’ll take John Hinderaker’s expertise over yours, EJ.
I’ll take Andrew McCarthy’s take over EJ Hill’s too
https://archive.ph/Ldcu4