“Of What Was Donald Trump Convicted?”

 

This is the question I intend to ask anyone who gloats about the conviction. It’s the question media should be asking the politicians unctuously proclaiming, “No one is above the law.”

I had written a long post on the decline of the American legal system since I went to law school 45 years ago. Especially regarding the erosion of the expectation that an accuser identify and substantiate the accusations before requiring the accused to guess and to mount a defense based on that guess. But I decided posting that would not help my wellbeing, nor would it be as helpful to overall discussion as I initially hoped.

So, back to exploring what those celebrating Donald Trump’s conviction think they are celebrating:

“Of what was Donald Trump convicted?”

No one can answer completely. They might get part — falsifying business records.

OK. Concede for now. Recording payments to a lawyer who is doing legal work is the crime of falsifying a business record. Right. Anyway . . .

But only if the falsifying is done with the intent to conceal a conspiracy to commit another crime. What is the other crime?

They won’t be able to say. Because the prosecution did not specify the other crime. The prosecution offered options, but with no substantiation for any of them. The judge did not require the jury to specify what the other crime is on which the jury might base any conviction. The judge didn’t even require that the jury unanimously agree on what the other crime is on which they were basing any conviction.

So there is no way for us to know of what the other crime was. Was the other crime actually a crime?

How can we know if there was a conspiracy to commit the other crime if we don’t even know what the other crime was?

And if we don’t know where the conspiracy is, how can we determine if the defendant had the intent to conceal the conspiracy required for the business records crime?

If people are going to sanctimoniously claim “justice” has been done by convicting Donald Trump, they should be able to explain the “justice” that was done. I hope they will become embarrassed when they realize how unjust this conviction is.

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  1. philo Member
    philo
    @philo

    No doubt our local rationalizers of such things will show up soon (peacocking their ever convenient legal-political-logical contortionism) to explain it all to us. 

    • #1
  2. Old Bathos Member
    Old Bathos
    @OldBathos

    If you can’t reduce it to a 3-5 word meme, it will not be understood by anyone who does not already get it.

    Polite well-reasoned arguments against a demonstrably failed administration did not get Romney over the finish line.  The left then proceeded to steadily kill off both the RINOs and the DNC/Clinton quasi-centrist Democrats while mutating into a new, vicious, openly Stalinist form.

    Trump arose by sheer natural selection. Denying the left their prey (productive normals) with the same short, effective emotive speech modes they thought they owned exclusively, Trump is a mortal threat to their species and they are acting accordingly.  

    • #2
  3. cdor Member
    cdor
    @cdor

    The people celebrating what they consider to be Trump’s demise do not give a damn what the crime was, so expecting some kind of shame from any of them over their ignorance is a waste of time. It ain’t gonna happen.

    • #3
  4. DonG (CAGW is a Scam) Coolidge
    DonG (CAGW is a Scam)
    @DonG

    Soon we’ll get interviews of the jurors and we’ll learn their thinking.

    • #4
  5. Freeven Member
    Freeven
    @Freeven

    DonG (CAGW is a Scam) (View Comment):

    Soon we’ll get interviews of the jurors and we’ll learn their thinking.

    Perhaps — and even then, we’ll only learn what they’ll claim was their thinking.

    • #5
  6. God-Loving Woman Coolidge
    God-Loving Woman
    @GodLovingWoman

    Thank you for posting this. My daughter asked what this was all about. Explaining “nothing” is hard, so thinks for the assist. 

    And to clarify, it’s not about nothing. It’s about another instance of the in power people attempting to have their way at the expense of our so far pretty stalwart institutions. The disregard for the rule of law and the disrespect of The People is audacious and dark. 

    Hang on to the truth. It’s going to be a very bumpy ride. 

    • #6
  7. Jerry Giordano (Arizona Patriot) Member
    Jerry Giordano (Arizona Patriot)
    @ArizonaPatriot

    Full Size Tabby: OK. Concede for now. Recording payments to a lawyer who is doing legal work is the crime of falsifying a business record. Right. Anyway . . .

    This is an inaccurate statement, I think.

    As I understand the case, the payments to the lawyer that were at issue in the case were not for doing legal work.  They were for a hush money payment to a pornstar with whom Trump had an affair.

    Please correct me if I’m wrong about this.

    If I’m correct about this, then recording such a payment as something like “legal fees” is obviously a falsification of business records.

    • #7
  8. Django Member
    Django
    @Django

    I just heard Clay Travis, or maybe it was Buck, say that it’s time to stop turning the other cheek, to put on the brass knuckles, and for every Republican AG in red states to pick a Democrat figurehead and go full-bore with “lawfare”. Sad, I suppose, but that’s all that will stop this BS. 

    • #8
  9. Ed G, Lower Order Drew Inactive
    Ed G, Lower Order Drew
    @EdG

    I appreciate your post FST. However, we’re way past hoping for some kind of guard rail to be effective or some voice of reason and sobriety to tap into a non existent vein of shame. 

    The list of existential injuries  to our system is long but also water under the bridge. There was no acknowledgement, punishment, or corrective. Quite the opposite. To the extent “our side” fought back it’s been weak and ineffectual, when they weren’t aiding the attack that is. 

    As I said in the runup to 2016, any time someone more respectable wanted to occupy the ground Trump was occupying they were free to do so and probably could have beaten Trump. Same now: any time someone wants to step up to actually fight the fundamental transformation and destruction of our country we’re ready. In fact, where have you been, nonexistent non-Trump leader? Some have come close but shot themselves in the foot out of Trump hatred.

    • #9
  10. Ed G, Lower Order Drew Inactive
    Ed G, Lower Order Drew
    @EdG

    On the other hand, this is effectively removing any remaining qualms about incivility or remaining nostalgia for probably never actually real bygone days of better times. 

    • #10
  11. cdor Member
    cdor
    @cdor

    Jerry Giordano (Arizona Patrio… (View Comment):

    Full Size Tabby: OK. Concede for now. Recording payments to a lawyer who is doing legal work is the crime of falsifying a business record. Right. Anyway . . .

    This is an inaccurate statement, I think.

    As I understand the case, the payments to the lawyer that were at issue in the case were not for doing legal work. They were for a hush money payment to a pornstar with whom Trump had an affair.

    Please correct me if I’m wrong about this.

    If I’m correct about this, then recording such a payment as something like “legal fees” is obviously a falsification of business records.

    First, Trump is not an accountant. The NDA was paid by the lawyer and reimbursed by the Trump organization. This is what I understood to be the Trump legal team explanation. I believe it has been proven that Cohen, the lawyer, did indeed pay the money out of his own pocket. Trump signed a check to his lawyer, Cohen, that included the funds paid by Cohen to the woman named Daniels. The bookkeeping department of the Trump organization recorded the funds paid to Cohen as legal fees. This is not as obvious a falsification as you claim it to be. Trump’s legal team even claimed, as I understood it, that Trump had nothing to do with arranging an NDA. He signed an expense check for legal fees as a pro forma payment of a corporate expense, not realizing the bulk of the money was used to pay off Stormy Daniels. Whether or not that is true I do not know. But the fact is that the prosecution never proved that it was not true. All of the above is my understanding.

     

    Edit: Trump reimbursed Cohen with a personal check, not corporate funds. Using private funds makes this case even more outrageous as legal fees are not even deductible for private individuals. It doesn’t matter how the Trump accountants labelled the payment.

    • #11
  12. Blue State Blues Member
    Blue State Blues
    @BlueStateBlues

    cdor (View Comment):

    The people celebrating what they consider to be Trump’s demise do not give a damn what the crime was, so expecting some kind of shame from any of them over their ignorance is a waste of time. It ain’t gonna happen.

    Exactly.

    Their thinking is, Trump is undoubtedly guilty of many crimes we don’t even know about.  So we got him on this, whatever “this” is, like Al Capone going to jail for not paying taxes.

    • #12
  13. Blue State Blues Member
    Blue State Blues
    @BlueStateBlues

    Freeven (View Comment):

    DonG (CAGW is a Scam) (View Comment):

    Soon we’ll get interviews of the jurors and we’ll learn their thinking.

    Perhaps — and even then, we’ll only learn what they’ll claim was their thinking.

    Don’t expect any trenchant legal analysis.  I doubt the jurors even understood the charges of which they were convicting Trump, or cared.

    • #13
  14. CarolJoy, Not So Easy To Kill Coolidge
    CarolJoy, Not So Easy To Kill
    @CarolJoy

    cdor (View Comment):

    Jerry Giordano (Arizona Patrio… (View Comment):

    Full Size Tabby: OK. Concede for now. Recording payments to a lawyer who is doing legal work is the crime of falsifying a business record. Right. Anyway . . .

    This is an inaccurate statement, I think.

    As I understand the case, the payments to the lawyer that were at issue in the case were not for doing legal work. They were for a hush money payment to a pornstar with whom Trump had an affair.

    Please correct me if I’m wrong about this.

    If I’m correct about this, then recording such a payment as something like “legal fees” is obviously a falsification of business records.

    First, Trump is not an accountant. The NDA was paid by the lawyer and reimbursed by the Trump organization. This is what I understood to be the Trump legal team explanation. I believe it has been proven that Cohen, the lawyer, did indeed pay the money out of his own pocket. Trump signed a check to his lawyer, Cohen, that included the funds paid by Cohen to the woman named Daniels. The bookkeeping department of the Trump organization recorded the funds paid to Cohen as legal fees. This is not as obvious a falsification as you claim it to be. Trump’s legal team even claimed, as I understood it, that Trump had nothing to do with arranging an NDA. He signed an expense check for legal fees as a pro forma payment of a corporate expense, not realizing the bulk of the money was used to pay off Stormy Daniels. Whether or not that is true I do not know. But the fact is that the prosecution never proved that it was not true. All of the above is my understanding.

    It is also true that any time an activity is considered to be a crime, the question must be answered as to whom the actual victim happened to be.

    With a legal contention being raised that by paying this “hush money” out of his own pocket, rather than from a campaign coffer, Mr Trump violated someone. But the only possible entity who would have been violated was himself – he bore an expense that his opposition thinks that his campaign contributors should have paid for.

    I have wondered since the very beginning if he should have simply shown up the first day of court, pleaded “Guilty!” and then said, “Since I hereby forgive myself for the injurious crime  I have caused myself, and no one else, I ask that all of this court proceeding against me be dismissed.”

    Julian Assange sits in prison for a crime for which no charges exist. The many hundreds of British PostaL Service agents of whom a dozen or so also were tried and convicted for crimes for which no real charges with evidence ever were produced in court suffered as well for the law being violated at its most basic foundational step.

    If there is no evidence-based, prove-able injury to anyone, then court cases should not be allowed to proceed. Yet lawyers, be they public defenders as was the case for many of the British who had their lives ruined, or well paid lawyers such as Trump and Assange have employed, seem to overlook and then overstep this very instructive principle.

    Why is that? Does no one among the well schooled  lawyerly have enough  common sense to state “The emperor has no clothes”??

    • #14
  15. DonG (CAGW is a Scam) Coolidge
    DonG (CAGW is a Scam)
    @DonG

    Django (View Comment):

    I just heard Clay Travis, or maybe it was Buck, say that it’s time to stop turning the other cheek, to put on the brass knuckles, and for every Republican AG in red states to pick a Democrat figurehead and go full-bore with “lawfare”. Sad, I suppose, but that’s all that will stop this BS.

    Sounds like a Buck thing.  The process is the punishment and the new normal is to punish your political opposition.

    • #15
  16. DonG (CAGW is a Scam) Coolidge
    DonG (CAGW is a Scam)
    @DonG

    Jerry Giordano (Arizona Patrio… (View Comment):

    Full Size Tabby: OK. Concede for now. Recording payments to a lawyer who is doing legal work is the crime of falsifying a business record. Right. Anyway . . .

    This is an inaccurate statement, I think.

    As I understand the case, the payments to the lawyer that were at issue in the case were not for doing legal work. They were for a hush money payment to a pornstar with whom Trump had an affair.

    Please correct me if I’m wrong about this.

    If I’m correct about this, then recording such a payment as something like “legal fees” is obviously a falsification of business records.

    Your confused.   Cohen provided legal services that included hourly and expense, which he invoiced to Trump.  Trump’s team payed the invoices and labeled them legal fees.  That is a proper and legal thing to do.   The prosecutor implied the payments were actually an illegal campaign contribution (not true) and the jury was to infer there was an underlying crime.  It is total BS, but the process is the punishment.

    • #16
  17. Jerry Giordano (Arizona Patriot) Member
    Jerry Giordano (Arizona Patriot)
    @ArizonaPatriot

    Full Size Tabby: But only if the falsifying is done with the intent to conceal a conspiracy to commit another crime. What is the other crime?

    This is not correct.

    The “other crime” is clearly identified in the jury instructions, here, on page 30.  It states:

    The People allege that the other crime the defendant intended to commit, aid, or conceal is a violation of New York Election Law section 17-152.

    This follows the explanation of the principal charge, falsifying business records in the first degree in violation of Penal Law sec. 175.10, which requires a predicate crime.  This explanation starts at page 27 of the jury instructions linked above.

    In general, the jury instructions appear, to me, to be an accurate rendition of the relevant statutes.  It gets a bit more complicated, because the definition of falsifying business records in the first degree (Penal Law sec. 175.10, a class E felony) incorporates the definition of falsifying business records in the second degree (Penal Law sec. 175.05, a class A misdemeanor).  If you want to check the statutes yourself, click here: Election Law sec. 17-152; Penal Law sec. 175.10; Penal Law sec. 175.05.

    So the predicate crime to the felony crime charged — in 34 separate counts — is clearly identified.

    The real controversy, I think, arises from the definition of the predicate crime, Election Law sec. 17-152.  It reads (emphasis added):

    Any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor.

    What is “unlawful means”?  I haven’t reviewed the briefing, but from media reports, it appears that the Trump defense argued that “unlawful” in this context means “criminal.”  This interpretation would mean that there is a second-order predicate crime: i.e. that there must be an underlying (predicate) crime before there can be a violation of Election Law sec. 17-152, which itself is then the underlying (predicate) crime to the charged violation of Penal Law sec. 175.10.

    This is a question of statutory interpretation under New York law.  My first impression is that the Trump defense has a difficult battle in arguing that “unlawful” is synonymous with “criminal” in Election Law sec. 17-152.

    There is a further issue, which I think is the principal issue raised by the OP, albeit inaccurately.  Does the jury have to agree on the particular “unlawful means” necessary to find a violation of Election Law sec. 17-152, or is it enough that they agree the some “unlawful means” was used (or contemplated, as it’s a conspiracy offense)?

    Based on the jury instructions, the judge evidently decided the latter.  This is on page 31 of the jury instructions, which state in pertinent part:

    Although you must conclude unanimously that the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you need not be unanimous as to what those unlawful means were.

    In determining whether the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you may consider the following: (1) violations of the Federal Election Campaign Act otherwise known as FECA; (2) the falsification of other business records; or (3) violation of tax laws.

    Whether or not the judge was correct in this interpretation is, again, a question of statutory interpretation under New York law.  I don’t know whether or not there is relevant prior case law on the issue.  On first consideration, it appears, to me, to raise a legitimate issue for appeal.

    I don’t think that we know the details of the jury’s decision on this particular issue.  As an example, it is possible that half the jury thought that the pornstar hush money payment was unlawful because it violated FECA, and the other half thought that it was unlawful because it violated the tax laws.  In this hypothetical, the jury instructions would require the jury to convict, and if the appellate court disagrees with the judge’s instructions, that conviction would be reversed on appeal.

    • #17
  18. Full Size Tabby Member
    Full Size Tabby
    @FullSizeTabby

    Jerry Giordano (Arizona Patrio… (View Comment):
    I don’t think that we know the details of the jury’s decision on this particular issue.  As an example, it is possible that half the jury thought that the pornstar hush money payment was unlawful because it violated FECA, and the other half thought that it was unlawful because it violated the tax laws.  In this hypothetical, the jury instructions would require the jury to convict, and if the appellate court disagrees with the judge’s instructions, that conviction would be reversed on appeal.

    In other words, we don’t know what Donald Trump was convicted of because we don’t know an essential element of the crime (the “unlawful means”). 

    • #18
  19. Full Size Tabby Member
    Full Size Tabby
    @FullSizeTabby

    Jerry Giordano (Arizona Patrio… (View Comment):

    Full Size Tabby: OK. Concede for now. Recording payments to a lawyer who is doing legal work is the crime of falsifying a business record. Right. Anyway . . .

    This is an inaccurate statement, I think.

    As I understand the case, the payments to the lawyer that were at issue in the case were not for doing legal work. They were for a hush money payment to a pornstar with whom Trump had an affair.

    Please correct me if I’m wrong about this.

    If I’m correct about this, then recording such a payment as something like “legal fees” is obviously a falsification of business records.

    You obviously know nothing of corporate accounting. 

    • #19
  20. Jerry Giordano (Arizona Patriot) Member
    Jerry Giordano (Arizona Patriot)
    @ArizonaPatriot

    Full Size Tabby (View Comment):

    Jerry Giordano (Arizona Patrio… (View Comment):

    Full Size Tabby: OK. Concede for now. Recording payments to a lawyer who is doing legal work is the crime of falsifying a business record. Right. Anyway . . .

    This is an inaccurate statement, I think.

    As I understand the case, the payments to the lawyer that were at issue in the case were not for doing legal work. They were for a hush money payment to a pornstar with whom Trump had an affair.

    Please correct me if I’m wrong about this.

    If I’m correct about this, then recording such a payment as something like “legal fees” is obviously a falsification of business records.

    You obviously know nothing of corporate accounting.

    I know a great deal about corporate accounting.  I was once a corporate accountant, before I became a lawyer.  Intentionally miscoding an expense is a falsification of business records.

    Based on my review of the jury instructions, the case against Trump is pretty strong.  I don’t like the fact that he was prosecuted.  

    • #20
  21. Jerry Giordano (Arizona Patriot) Member
    Jerry Giordano (Arizona Patriot)
    @ArizonaPatriot

    Full Size Tabby (View Comment):

    Jerry Giordano (Arizona Patrio… (View Comment):
    I don’t think that we know the details of the jury’s decision on this particular issue. As an example, it is possible that half the jury thought that the pornstar hush money payment was unlawful because it violated FECA, and the other half thought that it was unlawful because it violated the tax laws. In this hypothetical, the jury instructions would require the jury to convict, and if the appellate court disagrees with the judge’s instructions, that conviction would be reversed on appeal.

    In other words, we don’t know what Donald Trump was convicted of because we don’t know an essential element of the crime (the “unlawful means”).

    Well, that’s not correct.  We know what he was convicted of.  I cited and linked both the principal statute and the predicate statute.

    You present the argument that I expect Trump’s defense team to make on appeal.  It may prevail, or it may not.

    I’ve been thinking of some analogies for this situation.  I come up with two:

    1. Imagine a burglary case, under the common-law rule that burglary is breaking and entering into a dwelling at night with intent to commit a felony therein.  Imagine that the burglar is caught before committing any other crime in the dwelling, and there is evidence that he intended to commit a rape, and other evidence that he intended to steal money.  In either case, it’s burglary.  I’m not sure whether the jury would have to be unanimous about the particular felony that the accused intended to commit, or would have to be unanimous that the accused intended to commit some felony.
    2. Imagine a murder case with a transferred intent issue, in which the victim is killed in error as the accused sought to kill someone else.  One could imagine the victim standing between two other people, and there might be some evidence that the accused meant to kill the one standing on the victim’s right, and other evidence that the accused meant to kill the victim standing on the victim’s left.  Would that make a difference?

    I haven’t researched the issue, and I don’t practice in the area of criminal law, so I’m not sure about the answers here.  If the answer is obvious, then Trump has a strong appeal.

    • #21
  22. kedavis Coolidge
    kedavis
    @kedavis

    Full Size Tabby: If people are going to sanctimoniously claim “justice” has been done by convicting Donald Trump, they should be able to explain the “justice” that was done. I hope they will become embarrassed when they realize how unjust this conviction is.

    A whole lot of people are incapable of thinking even that deeply.

    • #22
  23. Jerry Giordano (Arizona Patriot) Member
    Jerry Giordano (Arizona Patriot)
    @ArizonaPatriot

    I was curious about the issue of whether unanimity is required on the particular “unlawful means” necessary to Trump’s conviction in the present case.  I did a bit of research, and found several cases supporting the trial judge’s decision in the Trump case.  The most notable is a US Supreme Court decision, Schad v. Arizona (1991).

    The decision is a bit complicated, as it was ultimately a 5-4 decision with a principal opinion by Souter, joined by Rehnquist, O’Connor, and Kennedy, and joined in part by Scalia.  The section relevant to the present issue is in Section II, which was not joined by Scalia, but Scalia agreed with this point in his separate concurring opinion.

    Paragraph 29 of the principal opinion states (most internal citations omitted):

    A series of state court decisions, beginning with the leading case of People v. Sullivan, 173 N.Y. 122, 65 N.E. 989 (1903), have agreed that “it was not necessary that all the jurors should agree in the determination that there was a deliberate and premeditated design to take the life of the deceased, or in the conclusion that the defendant was at the time engaged in the commission of a felony, or an attempt to commit one; it was sufficient that each juror was convinced beyond a reasonable doubt that the defendant had committed the crime of murder in the first degree as that offense is defined by the statute.” [Citations omitted.] Although the state courts have not been unanimous in this respect, see State v. Murray, 308 Ore. 496, 782 P.2d 157 (1989), there is sufficiently widespread acceptance of the two mental states as alternative means of satisfying the mens rea element of the single crime of first-degree murder to persuade us that Arizona has not departed from the norm.

    This is precisely the principle on which the judge in Trump’s case decided that the jury need not be unanimous about the particular “unlawful means” involved, as long as it agreed that some “unlawful means” was used.  I note that SCOTUS identified a New York decision as the leading case on this issue.

    Again, this was not a majority portion of the opinion, but in his concurring opinion, Scalia was even more emphatic in his support for this principle, and gives a constructive example.  From paragraph 52:

    As the plurality observes, it has long been the general rule that when a single crime can be committed in various ways, jurors need not agree upon the mode of commission. See, e.g., People v. Sullivan, 173 N.Y. 122, 65 N.E. 989 (1903); cf. H. Joyce, Indictments §§ 561-562, pp. 654-657 (2d ed. 1924); W. Clark, Criminal Procedure §§ 99-103, pp. 322-330 (2d ed. 1918); 1 J. Bishop, Criminal Procedure §§ 434-438, pp. 261-265 (2d ed. 1872). That rule is not only constitutional, it is probably indispensable in a system that requires a unanimous jury verdict to convict. When a woman’s charred body has been found in a burned house, and there is ample evidence that the defendant set out to kill her, it would be absurd to set him free because six jurors believe he strangled her to death (and caused the fire accidentally in his hasty escape), while six others believe he left her unconscious and set the fire to kill her. While that seems perfectly obvious, it is also true, as the plurality points out, see ante, at 633, that one can conceive of novel “umbrella” crimes (a felony consisting of either robbery or failure to file a tax return) where permitting a 6-6 verdict would seem contrary to due process.

    Interestingly, Trump’s trial judge is being heavily criticized here for taking the position adopted by the five most conservative justices on the US Supreme Court in 1991.

    • #23
  24. kedavis Coolidge
    kedavis
    @kedavis

    CarolJoy, Not So Easy To Kill (View Comment):

    cdor (View Comment):

    Jerry Giordano (Arizona Patrio… (View Comment):

    Full Size Tabby: OK. Concede for now. Recording payments to a lawyer who is doing legal work is the crime of falsifying a business record. Right. Anyway . . .

    This is an inaccurate statement, I think.

    As I understand the case, the payments to the lawyer that were at issue in the case were not for doing legal work. They were for a hush money payment to a pornstar with whom Trump had an affair.

    Please correct me if I’m wrong about this.

    If I’m correct about this, then recording such a payment as something like “legal fees” is obviously a falsification of business records.

    First, Trump is not an accountant. The NDA was paid by the lawyer and reimbursed by the Trump organization. This is what I understood to be the Trump legal team explanation. I believe it has been proven that Cohen, the lawyer, did indeed pay the money out of his own pocket. Trump signed a check to his lawyer, Cohen, that included the funds paid by Cohen to the woman named Daniels. The bookkeeping department of the Trump organization recorded the funds paid to Cohen as legal fees. This is not as obvious a falsification as you claim it to be. Trump’s legal team even claimed, as I understood it, that Trump had nothing to do with arranging an NDA. He signed an expense check for legal fees as a pro forma payment of a corporate expense, not realizing the bulk of the money was used to pay off Stormy Daniels. Whether or not that is true I do not know. But the fact is that the prosecution never proved that it was not true. All of the above is my understanding.

    It is also true that any time an activity is considered to be a crime, the question must be answered as to whom the actual victim happened to be.

    With a legal contention being raised that by paying this “hush money” out of his own pocket, rather than from a campaign coffer, Mr Trump violated someone. But the only possible entity who would have been violated was himself – he bore an expense that his opposition thinks that his campaign contributors should have paid for.

    I have wondered since the very beginning if he should have simply shown up the first day of court, pleaded “Guilty!” and then said, “Since I hereby forgive myself for the injurious crime I have caused myself, and no one else, I ask that all of this court proceeding against me be dismissed.”

    Julian Assange sits in prison for a crime for which no charges exist. The many hundreds of British PostaL Service agents of whom a dozen or so also were tried and convicted for crimes for which no real charges with evidence ever were produced in court suffered as well for the law being violated at its most basic foundational step.

    If there is no evidence-based, prove-able injury to anyone, then court cases should not be allowed to proceed. Yet lawyers, be they public defenders as was the case for many of the British who had their lives ruined, or well paid lawyers such as Trump and Assange have employed, seem to overlook and then overstep this very instructive principle.

    Why is that? Does no one among the well schooled lawyerly have enough common sense to state “The emperor has no clothes”??

    Since it’s unlikely that any judge would accept that, it doesn’t seem useful to try it.

    • #24
  25. kedavis Coolidge
    kedavis
    @kedavis

    Jerry Giordano (Arizona Patrio… (View Comment):

    I was curious about the issue of whether unanimity is required on the particular “unlawful means” necessary to Trump’s conviction in the present case. I did a bit of research, and found several cases supporting the trial judge’s decision in the Trump case. The most notable is a US Supreme Court decision, Schad v. Arizona (1991).

    The decision is a bit complicated, as it was ultimately a 5-4 decision with a principal opinion by Souter, joined by Rehnquist, O’Connor, and Kennedy, and joined in part by Scalia. The section relevant to the present issue is in Section II, which was not joined by Scalia, but Scalia agreed with this point in his separate concurring opinion.

    Paragraph 29 of the principal opinion states (most internal citations omitted):

    A series of state court decisions, beginning with the leading case of People v. Sullivan, 173 N.Y. 122, 65 N.E. 989 (1903), have agreed that “it was not necessary that all the jurors should agree in the determination that there was a deliberate and premeditated design to take the life of the deceased, or in the conclusion that the defendant was at the time engaged in the commission of a felony, or an attempt to commit one; it was sufficient that each juror was convinced beyond a reasonable doubt that the defendant had committed the crime of murder in the first degree as that offense is defined by the statute.” [Citations omitted.] Although the state courts have not been unanimous in this respect, see State v. Murray, 308 Ore. 496, 782 P.2d 157 (1989), there is sufficiently widespread acceptance of the two mental states as alternative means of satisfying the mens rea element of the single crime of first-degree murder to persuade us that Arizona has not departed from the norm.

    This is precisely the principle on which the judge in Trump’s case decided that the jury need not be unanimous about the particular “unlawful means” involved, as long as it agreed that some “unlawful means” was used. I note that SCOTUS identified a New York decision as the leading case on this issue.

    Again, this was not a majority portion of the opinion, but in his concurring opinion, Scalia was even more emphatic in his support for this principle, and gives a constructive example. From paragraph 52:

    As the plurality observes, it has long been the general rule that when a single crime can be committed in various ways, jurors need not agree upon the mode of commission. See, e.g., People v. Sullivan, 173 N.Y. 122, 65 N.E. 989 (1903); cf. H. Joyce, Indictments §§ 561-562, pp. 654-657 (2d ed. 1924); W. Clark, Criminal Procedure §§ 99-103, pp. 322-330 (2d ed. 1918); 1 J. Bishop, Criminal Procedure §§ 434-438, pp. 261-265 (2d ed. 1872). That rule is not only constitutional, it is probably indispensable in a system that requires a unanimous jury verdict to convict. When a woman’s charred body has been found in a burned house, and there is ample evidence that the defendant set out to kill her, it would be absurd to set him free because six jurors believe he strangled her to death (and caused the fire accidentally in his hasty escape), while six others believe he left her unconscious and set the fire to kill her. While that seems perfectly obvious, it is also true, as the plurality points out, see ante, at 633, that one can conceive of novel “umbrella” crimes (a felony consisting of either robbery or failure to file a tax return) where permitting a 6-6 verdict would seem contrary to due process.

    Interestingly, Trump’s trial judge is being heavily criticized here for taking the position adopted by the five most conservative justices on the US Supreme Court in 1991.

    It doesn’t seem like the Trump case involved the same type of differentiation as you list here.  i.e., it’s not a question of “how was the murder victim murdered?”  It’s more like “Is the crime a murder, or a bank robbery, or a rape, or…?”  In such a situation, it seems pretty clear that WHICH crime – not which MEANS of crime – needs to be specified, both for the jury, and for the defense to be able to meaningfully counter the charge(s).  Which is part of what the Sixth Amendment is about.

    • #25
  26. Ed G, Lower Order Drew Inactive
    Ed G, Lower Order Drew
    @EdG

    Jerry Giordano (Arizona Patrio… (View Comment):
    I know a great deal about corporate accounting.  I was once a corporate accountant, before I became a lawyer.  Intentionally miscoding an expense is a falsification of business records.

    What expense category should this be if not legal?

    As a practical matter, no bookkeeper is going to receive an invoice from an attorney and begin a struggle session about how to code it. That’s assuming the coding isn’t automatic in the accounting software.

    So even if the coding were wrong (not proven to be so), was the accountant directed to so so? Was the accountant directed to do so with the intent of covering up a crime? Would Trump have had to know that such false expense coding was done with the purpose of unlawfully influencing an election or whatever other infraction? Did he know there was a larger infraction?

    • #26
  27. kedavis Coolidge
    kedavis
    @kedavis

    Ed G, Lower Order Drew (View Comment):

    Jerry Giordano (Arizona Patrio… (View Comment):
    I know a great deal about corporate accounting. I was once a corporate accountant, before I became a lawyer. Intentionally miscoding an expense is a falsification of business records.

    What expense category should this be if not legal?

    As a practical matter, no bookkeeper is going to receive an invoice from an attorney and begin a struggle session about how to code it. That’s assuming the coding isn’t automatic in the accounting software.

    So even if the coding were wrong (not proven to be so), was the accountanted directed to so so? Was the accountant directed tondo so with the intent if covering up a crime? Would Trump have had to know that such false expense coding was done with the purpose of unlawfully influencing an election or whatever other infraction? Did he know there was a larger infraction?

    It became pretty clear during the trial that the only real criminal was Cohen.

    Other than the DA and the judge, of course.

    • #27
  28. DonG (CAGW is a Scam) Coolidge
    DonG (CAGW is a Scam)
    @DonG

    Jerry Giordano (Arizona Patrio… (View Comment):
    In determining whether the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you may consider the following: (1) violations of the Federal Election Campaign Act otherwise known as FECA; (2) the falsification of other business records; or (3) violation of tax laws. (4) defeated Hillary Clinton in the Electoral College

    FIFY

    • #28
  29. Jerry Giordano (Arizona Patriot) Member
    Jerry Giordano (Arizona Patriot)
    @ArizonaPatriot

    I’ve been drawn into looking into the facts of this case in far greater detail.  I’m not sure whether or not to thank you for this, FST.  :)

    I was incorrect in my factual assumption about the basis for the case.  This does not appear to be a case of “miscoding” expenses, though some ledgers do exhibit such miscoding.

    Rather, the 34 counts relate to 34 specific records, apparently in 3 general categories: (1) invoices from Michael Cohen; (2) vouchers for the Cohen invoices, which appear to be internal computerized records of the Donald J. Trump Revocable Trust; and (3) checks from the Donald J. Trump Revocable Trust.

    The prosecution’s basic case, apparently supported by the testimony of former Trump lawyer Michael Cohen and a key bank statement with handwritten notes, is that Cohen paid hush money of $130,000 to the pornstar, and was then reimbursed by Trump in a series of payments falsely described as things like “legal services” or “retainer” payments.

    I’ll describe the first three, with links.

    People’s 1 (here) is an email string for Cohen’s first invoice.  It bills $70,000 for the months of January and February 2017 ($35,000 per month) with the notation “Pursuant to the retainer agreement, kindly remit payment for services rendered for the months of . . .”   There’s an email approving it from Allen Weisselberg, not identified therein but apparently a lawyer in the Trump organization, and further approval from the Senior VP/Controller of The Trump Organization, Jeffrey S. McConney, with McConney’s email directing Deborah Tarasoff to “Post it to legal expenses” and “Put ‘retainer for the months of January and February 2017’ in the description.”

    If this was a payment for the $130,000 hush money, then Cohen’s email is a falsified business record, inaccurately identifying the amount as being “for services rendered.”

    People’s 2 (here) is a January 2017 voucher processing a $35,000 transaction payable to Cohen with the description “RETAINER FOR 1/1-1/31/17,” indicating that it is coded to LEGAL EXPENSE.”  People’s 3 (here) is a similar voucher for February 2017 for another $35,000 transaction payable to Cohen with the description “RETAINER FOR 2/1-2/28/17” and an indication that it is coded to “LEGAL EXPENSE.”  Both say that they were processed by “DEBORAH” on 2/14/17.

    Obviously, these vouchers match the Cohen invoice (People’s 1), and the name “DEBORAH” matches Deborah Tarasoff who received the invoice and instruction regarding payment and coding from McConney.

    People’s 4 (here) is a copy of check no. 000138 for $70,000 from the Donald J. Trump – Revocable Trust Account, payable to Cohen and dated 2/14/17.  The voucher portion indicates that it is the total of two $35,000.00 lines identified as “RETAINER FOR 1/1-1/31/17” and “RETAINER FOR 2/1-2/28/17,” respectively.  This one bears two signatures, although in this case, the signatures do not appear to be Trump’s.

    Later checks, such as People’s 10 (here), do appear to bear Trump’s signature.  

    This does raise other issues, as in most of these documents, the false statement is not made by Trump himself.  The jury instructions include the issue of criminal liability for the acts of others with whom the accused is “acting in concert,” which appear typical to me.

    There is one other critical document, People’s 35 (here), a bank statement showing a $130,000 wire transfer to the pornstar’s lawyer from a Cohen-affiliated company called “Essential Consultants LLC”.  The bank statement is sent to Cohen.  It also notes a $35 wire transfer fee, with handwritten notes.

    The explanation of the notes, and the discussion of the alleged conspiracy generally, depends on testimony, which I have not seen.  As I understand it from some media reports, Cohen testified that he made the notation on the bottom right of the bank statement, which states:

    Plus $50,000
    Paid to Red Finch
    for tech services
    $180,035.00

    Again according to media reports, Cohen testified that the handwritten notes at the bottom left were made by Weisselberg, stating

    $180,000
    Grossed up to $360,000
    Add: Add’l Bonus $60,000
    $420,000
    12 = $35,000 per mo

    [Plus a final notation I can’t quite make out, maybe “after 2/1/17.”]

    Finally, according to media reports, Cohen testified that the $180,000 was grossed up for tax purposes, and that he and Weisselberg took this bank statement and notes to a meeting with Trump personally in mid-January 2017, at which Trump agreed.

    I wasn’t there for the testimony, obviously.

    My impression from this evidence is that the prosecutor had a very strong case. 

    • #29
  30. CarolJoy, Not So Easy To Kill Coolidge
    CarolJoy, Not So Easy To Kill
    @CarolJoy

    kedavis (View Comment):

    CarolJoy, Not So Easy To Kill (View Comment):

    cdor (View Comment):

    Jerry Giordano (Arizona Patrio… (View Comment):

    Full Size Tabby: OK. Concede for now. Recording payments to a lawyer who is doing legal work is the crime of falsifying a business record. Right. Anyway . . .

    This is an inaccurate statement, I think.

    As I understand the case, the payments to the lawyer that were at issue in the case were not for doing legal work. They were for a hush money payment to a pornstar with whom Trump had an affair.

    Please correct me if I’m wrong about this.

    If I’m correct about this, then recording such a payment as something like “legal fees” is obviously a falsification of business records.

    First, Trump is not an accountant. The NDA was paid by the lawyer and reimbursed by the Trump organization. This is what I understood to be the Trump legal team explanation. I believe it has been proven that Cohen, the lawyer, did indeed pay the money out of his own pocket. Trump signed a check to his lawyer, Cohen, that included the funds paid by Cohen to the woman named Daniels. The bookkeeping department of the Trump organization recorded the funds paid to Cohen as legal fees. This is not as obvious a falsification as you claim it to be. Trump’s legal team even claimed, as I understood it, that Trump had nothing to do with arranging an NDA. He signed an expense check for legal fees as a pro forma payment of a corporate expense, not realizing the bulk of the money was used to pay off Stormy Daniels. Whether or not that is true I do not know. But the fact is that the prosecution never proved that it was not true. All of the above is my understanding.

    It is also true that any time an activity is considered to be a crime, the question must be answered as to whom the actual victim happened to be.

    With a legal contention being raised that by paying this “hush money” out of his own pocket, rather than from a campaign coffer, Mr Trump violated someone. But the only possible entity who would have been violated was himself – he bore an expense that his opposition thinks that his campaign contributors should have paid for.

    I have wondered since the very beginning if he should have simply shown up the first day of court, pleaded “Guilty!” and then said, “Since I hereby forgive myself for the injurious crime I have caused myself, and no one else, I ask that all of this court proceeding against me be dismissed.”

    Julian Assange sits in prison for a crime for which no charges exist. The many hundreds of British PostaL Service agents of whom a dozen or so also were tried and convicted for crimes for which no real charges with evidence ever were produced in court suffered as well for the law being violated at its most basic foundational step.

    If there is no evidence-based, prove-able injury to anyone, then court cases should not be allowed to proceed. Yet lawyers, be they public defenders as was the case for many of the British who had their lives ruined, or well paid lawyers such as Trump and Assange have employed, seem to overlook and then overstep this very instructive principle.

    Why is that? Does no one among the well schooled lawyerly have enough common sense to state “The emperor has no clothes”??

    Since it’s unlikely that any judge would accept that, it doesn’t seem useful to try it.

    It is a basic rule of law. For any one individual to be tried for a crime there must be a crime so evidence of that crime must be presented.

    This is what stands behind both the American and British principle of “innocent until proven guilty.”

    A judge may or may not make decisions in accordance with American or British law. But then that provides the scenario wherein the entire case can be turned  on its head and not only will the “guilty party” be exonerated, that individual will be allowed to sue for the many damages inflicted on said party, that resulted from the judge’s naive or deliberate mishandling of the rule of law.

    In the one woman’s case in the British Post Office scandal, she not only had her criminal record expunged, since the crime for which she was charged, i.e. “theft” had never come about, but I believe she then went on to receive damages awarded in another lawsuit. (Remember – she was charged with theft and for over a decade, she had  suffered damage to her reputation. I think she also served prison time. All because a Japanese computer company, Fujitsu,  had the ability to pressure the Postal Service  director and her associates over at the British Postal Service to pretend that it was theft when the missing monies actually came about due to the computer errors that the Japanese company’s computer system had caused. “Missing monies” had not been stolen – they were missing due to computer glitches but were reported as being stolen when the “auditors” looked into these matters.)

    • #30
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