Category Archives: Politics

Charge Him Now: Obstruction of Justice

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Remember this? It was news in May 2019:

President D___ T___ would have been indicted for obstruction of justice in special counsel Robert Mueller’s investigation if he did not hold the nation’s highest office, nearly 700 former federal prosecutors argued in an open letter published on Medium on Monday.

The ex-prosecutors — who have served under both Republican and Democratic administrations dating back to President Dwight D. Eisenhower — said Attorney General William Barr’s decision not to charge T___ with obstruction “runs counter to logic and our experience.”

The letter added, “Each of us believes that the conduct of President T___ described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice.”

“We believe strongly that, but for the OLC memo, the overwhelming weight of professional judgment would come down in favor of prosecution for the conduct outlined in the Mueller Report,” the letter continued.

The Mueller report cited 10 episodes indicating that T____ could be prosecuted after he left office. He left office more than six months ago, but there is no sign so far that the Department of Justice is pursuing the matter.

Before leaving office, the former president also tried to overturn the results of the election. I’m not sure there is anything in federal law that explicitly makes that behavior illegal. The laws against treason and sedition are narrowly written and may not apply to a president doing everything he can to illegally remain in office. Congress probably never imagined that kind of behavior.

Nevertheless, this latest news is remarkable:

Former President D____ T____ . . . explicitly pressured {the acting attorney general] to declare the 2020 election “corrupt” in a December phone call, according to documents published Friday by the House Oversight and Reform Committee. [They are] the most recent evidence of T____’s extraordinary campaign to overturn the election’s results.

The House committee—which is investigating the T____ administration’s potentially unlawful efforts to influence the outcome of the election—made public notes taken by former acting Attorney General Jeffrey Rosen’s deputy, Richard Donoghue, during a Dec. 27 phone call between T____ and top officials from the Department of Justice.

In the notes summarizing the call, Donoghue recalled T____ asking Rosen and other top officials to “just say that the election was corrupt + leave the rest to me” and congressional allies [Forbes].

But, according to The Guardian:

D____ T____ insisted on Saturday that when he told senior justice department officials to “Just say that the election was corrupt [and] leave the rest to me”, he was not attempting to subvert US democracy, but to “uphold the integrity and honesty of elections and the sanctity of our vote”. . . .

One Washington editor, Benjy Sarlin of NBC News, wrote on Twitter: “We can’t take a continuous historic scandal for granted just because he says it out loud all the time. These are Watergate-level allegations.”

On Friday, Carolyn Maloney, chair of the House oversight committee, said: “These handwritten notes show that President T____ directly instructed our nation’s top law enforcement agency to take steps to overturn a free and fair election.”

If that isn’t treason or sedition, strictly speaking, it sure sounds like “interference with the orderly administration of law and justice”, i.e. obstruction.

The Department of Justice has work to do in the matter of former president D___ J. T____.

Or doesn’t the rule of law apply to him?

Understanding the Republican Cult of Personality

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Paul Krugman explains what social science says about personality cults, such as, oh,  today’s Republican Party, and how these cults support dictatorships around the world:

. . . One paper in particular, by the New Zealand-based researcher Xavier Márquez; I found . . . revelatory.

“The Mechanisms of Cult Production” compares the behavior of political elites across a wide range of dictatorial regimes, from Caligula’s Rome to the Kim family’s North Korea, and finds striking similarities. Despite vast differences in culture and material circumstances, elites in all such regimes engage in pretty much the same behavior, especially what the paper dubs “loyalty signaling” and “flattery inflation.”

Signaling is a concept originally drawn from economics; it says that people sometimes engage in costly, seemingly pointless behavior as a way to prove that they have attributes others value. For example, new hires at investment banks may work insanely long hours, not because the extra hours are actually productive, but to demonstrate their commitment to feeding the money machine.

In the context of dictatorial regimes, signaling typically involves making absurd claims on behalf of the Leader and his agenda, often including “nauseating displays of loyalty.” If the claims are obvious nonsense and destructive in their effects, if making those claims humiliates the person who makes them, these are features, not bugs. I mean, how does the Leader know if you’re truly loyal unless you’re willing to demonstrate your loyalty by inflicting harm both on others and on your own reputation?

And once this kind of signaling becomes the norm, those trying to prove their loyalty have to go to ever greater extremes to differentiate themselves from the pack. Hence “flattery inflation”: The Leader isn’t just brave and wise, he’s a perfect physical specimen, a brilliant health expert, a Nobel-level economic analyst, and more. The fact that he’s obviously none of these things only enhances the effectiveness of the flattery as a demonstration of loyalty.

Does all of this sound familiar? Of course it does, at least to anyone who has been tracking Fox News or the utterances of political figures like [Senator] Lindsey Graham or [House Majority Leader] Kevin McCarthy.

Many people, myself included, have declared for years that the G.O.P. is no longer a normal political party. It doesn’t look anything like, say, Dwight Eisenhower’s Republican Party or Germany’s Christian Democrats. But it bears a growing resemblance to the ruling parties of autocratic regimes.

The only unusual thing about the party’s wholesale adoption of the Leader Principle is that Republicans doesn’t have a monopoly on power; in fact, the party controls neither Congress nor the White House. Politicians suspected of insufficient loyalty to T___ and T___ism in general aren’t sent to the gulag. At most, they stand to lose intraparty offices and, possibly, future primaries. Yet such is the timidity of Republican politicians that these mild threats are apparently enough to make many of them behave like Caligula’s courtiers.

Unfortunately, all this loyalty signaling is putting the whole nation at risk. In fact, it will almost surely kill large numbers of Americans in the next few months.

The stalling of America’s initially successful vaccination drive isn’t entirely driven by partisanship — some people, especially members of minority groups, are failing to get vaccinated for reasons having little to do with current politics.

But politics is nonetheless clearly a key factor: Republican politicians and Republican-oriented influencers have driven much of the opposition to Covid-19 vaccines, in some cases engaging in what amounts to outright sabotage. And there is a stunning negative correlation between T___’s share of a county’s vote in 2020 and its current vaccination rate.

How did lifesaving vaccines become politicized? As Bloomberg’s Jonathan Bernstein suggests, today’s Republicans are always looking for ways to show that they’re more committed to the cause than their colleagues are — and given how far down the rabbit hole the party has already gone, the only way to do that is “nonsense and nihilism,” advocating crazy and destructive policies, like opposing vaccines.

That is, hostility to vaccines has become a form of loyalty signaling.

None of this should be taken to imply that Republicans are the root of all evil or that their opponents are saints . . . But the G.O.P. has become something different, with, as far as I know, no precedent in American history although with many precedents abroad. Republicans have created for themselves a political realm in which costly demonstrations of loyalty transcend considerations of good policy or even basic logic. . . .

Questioning the Power of Five Unelected Judges

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It’s human nature to be pleased when decisions go our way and upset when they don’t. This certainly applies to decisions made by the Supreme Court. But there is a basic issue of democracy vs. aristocracy when it comes to the Court’s ability to invalidate or undermine laws passed by elected officials.

A Harvard law professor, Nikolas Bowie, submitted this testimony to the Presidential Commission on the Supreme Court of the United States that Biden created earlier this year. Reprinted in The New York Times, its title was “How the Supreme Court Dominates Our Democracy: Judicial Review Gives Any Five Justices Power Over the Whole Government. Why?”:

The United States calls itself the world’s oldest democracy, which would be true if the world began in 1965. That was the year John Lewis marched to the Edmund Pettus Bridge, the president said “We shall overcome” and Congress passed the Voting Rights Act, which allowed many citizens to exercise their right to vote for the first time.

Yet the legislation of 1965 wasn’t Congress’s first attempt to build a multiracial democracy. A century earlier, lawmakers enacted a half-dozen laws that protected the right to vote, punished political violence, and banned racial discrimination in public places. But as Frederick Douglass lamented in 1883, those laws were “grievously wounded” and cut down during his lifetime. Their assassin was the Supreme Court.

Striking down the first federal voting rights act, the court wrote “It would . . . be dangerous if the legislature could set a net large enough to catch all possible offenders”. Concerning a White mob that murdered more than 100 Black voters, the court stated that “it does not appear that it was their intent to interfere with any right granted or secured by the constitution”. In 1903, the court held that the federal government was powerless to stop “the great mass of the white population [that] intends to keep the blacks from voting.”

Because the Supreme Court undermined or ignored Congress’s attempts to enforce the Constitution, the racial caste system that we know as Jim Crow emerged like an invasive species. With the court’s approval, White people in the South terrorized Black voters, disenfranchised them and enacted state laws to codify their place at the bottom of a racial hierarchy.

Today, as American democracy enters a midlife crisis, the Supreme Court has often been heralded as democracy’s guardian. Decisions dating from 1954’s Brown v. Board of Education are seen by many as essential responses to the tyranny of the majority. Yet it appears that the court has reverted to its older ways.

In 2013, a justice sneered at Congress’s nearly unanimous reauthorization of the Voting Rights Act, calling it the “perpetuation of a racial entitlement.” He was soon joined by four of his colleagues in the Shelby County decision, which treated a central provision of the Voting Rights Act as beyond Congress’s power to enact “appropriate” legislation. And in its Brnovich decision this month, the court stuck a second dagger into the act, calling it too “radical” to be enforced as written.

In the wake of these decisions — as before — Jim Crow laws are reemerging. By declining to enforce federal laws because it disagrees with Congress about whether they’re constitutionally appropriate, the Supreme Court has functioned as an antidemocratic institution that produces antidemocratic results.

In his inaugural address in 1861, President Abraham Lincoln offered perhaps the best argument for why Congress, and not the Supreme Court, should have the final word on what the Constitution requires. The court had just held in its infamous Dred Scott decision that Congress had no power to restrict the spread of slavery. “The candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by the Supreme Court,” Lincoln said, “. . . the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.” Lincoln thought that a self-governing people should have the power to determine what their fundamental law meant.

Lincoln’s argument wasn’t that the Constitution shouldn’t be enforced, but rather that Congress was the best institution to enforce it. Most of the Constitution’s limits are vague: The 15th Amendment permits Congress to enact “appropriate legislation” to protect the right to vote, for example, while the Fifth Amendment prohibits Congress from violating the “due process of law.” For as long as these limits have existed, there have been passionate disagreements about what they require. Congress offers a relatively democratic method for resolving these disputes. If people or state governments disagree about a law’s constitutionality, they can campaign to repeal that law.

By contrast, when the Supreme Court decides not to enforce a federal law, the justices in the majority effectively declare that their view is superior to everyone else’s. Even if the president, more than 500 members of Congress and four justices interpret the Constitution as permitting a law, if five justices disagree, then the law is not enforced. This was the scenario in 2013, when five members of the court held that a key section of the Voting Rights Act wasn’t “appropriate legislation.”

Yet no democratic procedure requires the justices to think of themselves as political equals with people who disagree with them. And while later generations of justices can revisit and overturn any of the court’s precedents, everyone else has the formal power to overrule the court only if two-thirds of both houses of Congress and three-quarters of the 50 states approve a constitutional amendment.

Indeed, it’s difficult to explain why, in a democracy, the constitutional interpretation of five justices should be superior to the constitutional interpretation of the elected officials who appointed and confirmed them.

One possible answer is that it’s the court’s job to interpret the Constitution. “It is emphatically the province and duty of the judicial department to say what the law is,” Chief Justice John Marshall wrote in his famous 1803 opinion in Marbury v. Madison. “The constitution controls any legislative act repugnant to it.” But Marshall’s emphatic response, as one critic put it, “begged the question-in-chief, which was not whether an act repugnant to the Constitution could stand, but who should be empowered to decide that the act is repugnant.”

A second possible answer is that everyone, the justices included, should follow their own interpretation of what the Constitution requires. But we all expect presidents, federal officials, state officials and even state judges to comply with federal law, regardless of whether they personally believe that the law is constitutional. As Lincoln well knew, it would be profoundly antidemocratic for a member of a state militia or the military to resist federal law. So the question — again — is what makes the justices different?

The only honest answer is that the justices are supposed to be antidemocratic. As Justice Robert Jackson wrote in 1943, “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” Other scholars have joined him in accepting the “counter-majoritarian difficulty” of judicial review. This perspective concedes that judicial review is antidemocratic — yet necessary for democracy to function properly.

This embrace of a judicial aristocracy affects much of the culture surrounding the Supreme Court. For the past hundred years, nearly every justice has been a graduate of an elite law school. New appointments are generally praised for their brilliance, credentials, professionalism and collegiality. And written briefs, adversarial argument, secretive deliberation, highly educated law clerks and a lack of political accountability are considered tools that allow the justices to resolve fraught questions correctly, even when their interpretations are politically unpopular.

But there is little historical reason to believe there is anything intrinsically correct about the Supreme Court’s constitutional interpretations. No expertise on the planet can determine whether Congress’s 1875 ban on racial discrimination, its 1965 expansion of voting rights, or its 2010 expansion of health insurance is “appropriate” or providing for the “general Welfare.” Resolving those questions requires the same trade-offs among competing principles that a democracy makes when it decides to enact any law. Our democracy suffers when an unelected group of lawyers take away our ability to govern ourselves.

This isn’t to say that Congress hasn’t adopted any horrific laws over the past 250 years. But there are few examples of the Supreme Court intervening in a timely fashion to overturn them. The court was silent at best when Congress violently captured fugitives from slavery, dispossessed Native American tribes, excluded Chinese immigrants, persecuted political dissidents, withheld civil rights from U.S. citizens in territories and interned Japanese Americans. Efforts to remedy these injustices have been achieved not by courts, but by expanding our democracy.

The history of judicial review of federal legislation shows that the principal “minority” most often protected by the court is the wealthy. Wealthy litigants can muster the skills, time, money, influence and capacity to challenge the same legislation over and over in court. For example, in 1895’s Pollock v. Farmers’ Loan and Trust Co., the Supreme Court invalidated a century of precedent to hold that a federal income tax would violate “one of the bulwarks of private rights and private property.” And in 2010’s Citizens United, the court threw out another century of federal campaign finance laws.

The best examples of judicial review working as expected by its proponents are cases such as the 2013 Windsor decision, which invalidated the Defense of Marriage Act of 1996, the 2008 Boumediene decision, which guaranteed minimal due process protections for Guantánamo detainees, and decisions in the 1970s that prohibited Congress from “protecting” women by engaging in sex discrimination. But when these cases are compared with rulings that directly contributed to the rise of Jim Crow, it becomes pretty evident that the court is, at best, no more reliable than Congress as a safeguard of political equality.

Of course, the Supreme Court has advanced democratic equality at the state level, from Brown v. Board in 1954 and Roe v. Wade in 1973 to Obergefell v. Hodges in 2015. But in these cases, federal judges didn’t disagree with Congress about the constitutionality of a federal law. To the contrary, they all enforced a federal law — the Ku Klux Klan Act of 1871. Congress enacted that law in response to Southern officials’ inaction against white supremacists terrorizing Black people. In its current form in the U.S. Code, the Klan Act instructs federal courts to invalidate state actions that violate the Constitution.

As the legal theorist James Bradley Thayer observed over a century ago, when the Supreme Court invalidates a state law, it is doing something far less objectionable than what it does when it refuses to enforce a federal law. In any federal system in which a national government disagrees with a state government, one side has to prevail. There is nothing undemocratic about our system in which the federal government decides who should win.

And when Congress instructs federal courts to preempt state laws — whether with the Klan Act or even with an ordinary federal law — the effect is as consistent with democracy as when President John F. Kennedy instructed federal troops to integrate the University of Mississippi. Either way, the federal government is simply seeking that its commands be enforced.

The situation profoundly changes when the Supreme Court goes rogue. For precisely the same reason that it can be democratic for federal troops to enforce Congress’s interpretation of the Constitution but extremely antidemocratic for them to disregard it, the proper role for federal courts in a democracy is to serve as its agents, not as a countervailing force. Democratic decision-making belongs in the hands of democratic bodies, not people with robes or guns.

Indeed, what a case like Brown actually illustrates is how federal legislation has successfully expanded American democracy when the Supreme Court serves as Congress’s enforcer. As the law professor Michael Klarman has observed, Southern schools remained almost as racially segregated in 1964 as they had been 10 years earlier, when Brown was decided. Formal segregation drew to a close in the South only after Congress enacted the Civil Rights Act and the Voting Rights Act.

Yet both laws stood in the face of Supreme Court precedents that restricted Congress’s power. Because the court continued to hold itself as the supreme interpreter of the Constitution, it had to give Congress permission to evade its own bad precedents . . .
Which returns to the original problem: Why should a court be in charge of a democracy? The answer is: It shouldn’t.

. . . Most of the time, the court gives Congress free rein to act as it pleases. But the justices are quick to pull on the reins when lawmakers move to disrupt hierarchies of wealth or status. Either way, the court arbitrarily dominates Congress: Even when the court is permissive, Congress can make no law without permission.

What makes that domination arbitrary is that the justices themselves are unbridled. Federal laws stand and fall on the votes of nine unaccountable lawyers, all appointed for life because of their educational backgrounds and relationship to the governing elite.

As a result, the political choices available to us as a democracy depend not on our collective will but on the will of people who hold power until they resign or die. This is precisely what the Declaration of Independence protested. As absurd as it was then for a continent to be perpetually governed by an island, it is equally absurd now for a nation of 300 million to be perpetually governed by five Harvard and Yale alumni.

As we debate new legislation to expand the franchise and protect the right to vote, the threat of judicial invalidation has forced our elected representatives to lower their expectations about how democratic our nation can become. In the name of protecting us from the excesses of democracy, the judicial review of federal laws is costing us democracy itself.

It’s Not a Fringe Benefits Case

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It’s blatant fraud and tax evasion. Daniel Shaviro, a professor of taxation at New York University’s School of Law, explains why the case against the former president’s company and its Chief Financial Officer is extremely serious: 

In the days before the July 1, 2021 issuance of the Manhattan District Attorney’s Weisselberg-X Organization indictment, public anticipation was positively underwhelming. It would just be a fringe benefits case, we were told – meaning, a dispute, of a picayune sort that almost never yields criminal charges, regarding whether or not an employee’s use of, say, a company car or apartment yielded taxable income . . . . Everyone does it, we heard, and it shouldn’t be the basis for a criminal fraud charge. What’s more, this ostensibly would just be a New York State or City income tax issue, not federal, thus limiting the scale and monetary significance of the claimed wrongdoing.

Then the indictment dropped, and it turns out that public expectations could scarcely have fallen further short than they were of the magnitude of what was actually being charged. Let me spell out the particulars under several headings:

1. This is no mere fringe benefits case. It is a straight-out fraud case, claiming that the defendants kept double books: phony ones to show the tax authorities, and accurate ones to be hidden from view. The question of whether a given company apartment or car might in theory (with appropriate supporting facts) have been an excludable fringe benefit turns out to be almost completely irrelevant. A better analogy to what is being charged here is the following:

Suppose that your employer pays you monthly, through automatically deposited paychecks that end up being included on your annual W-2. But suppose that each month you could stop by the front office, request an envelope full of cash in unmarked bills, and have your W-2 reduced accordingly. So your true income would be the same as if you hadn’t stopped by, but you’d be reporting less salary. If your employer kept careful records of all the cash it gave you, and also still deducted it all, we would basically have this case. That is far different from simple failure to pay taxes on fringe benefits, which is how the indictment has been widely misunderstood, thanks in part to X’s defense lawyers’ laying the groundwork before the charges were made public on Thursday.

2. It is not just a state and local income tax fraud case. It is also – via New York State fraud, conspiracy, and grand larceny statutes – a federal income tax fraud case. The indictment’s first three and longest counts detail a “scheme to defraud” the federal Internal Revenue Service, including through a “conspiracy” with multiple “overt acts,” and the commission of “grand larceny.” In other words, just as the Manhattan DA could indict someone for committing such crimes (within its jurisdiction) against the likes of you or me, so here it has identified the IRS as the main victim of the defendants’ actions. Indeed, the word “federal” appears thirty times in the Manhattan DA’s 24-page charging document.

Given the facts alleged, it is hard to fathom that the IRS – if it agrees that those facts are true – would not promptly indict the defendants for federal income tax fraud. Failing to bring charges would amount to saying that overt and deliberate tax cheating of the most brazen kind need not be addressed criminally. If a private individual, rather than the Manhattan DA had somehow gathered all of this information and reported it to the IRS, he or she would be in a great position to claim a whistleblower award. And while federal authorities often refrain from piling on, by bringing their own charges when state authorities are already prosecuting a case; the indictment here makes explicit that the fraud was, in the main, directed against the federal government itself.

3. If the Manhattan DA can prove the facts asserted, this is not a trivial case, or one that ordinarily would not be brought, or one that bespeaks political bias, or is just about pressuring a witness whom the DA wants to “turn.” It is unimaginable to me that any prosecutor would not bring these or similar charges under the asserted facts. If the case is proven, the DA will not have been criminalizing political disagreement, as critics complain. Rather, it will have been criminalizing crime – and not a moment too soon from a broader enforcement standpoint, given widespread concerns about plunging enforcement, not just against income tax fraud, but against white-collar crime more generally.

That’s the general overview. However, delving into the details can help to show why all this is so. A clear understanding is best conveyed by turning the indictment’s formal presentation of the charges into more of a straightforward narrative. The rest of this commentary presents the main elements of the story that the indictment tells.

One should keep in mind, of course, that all this is just the Manhattan DA’s case. . . . For convenience, I will set forth the prosecutorial version of what happened without repeating (more than sporadically) that it all still needs to be proven.

4. The true economic deal alleged by the indictment – Weisselberg had a fixed economic deal with the X Corporation. He was to be paid a fixed amount – which, for the years 2011 through 2018, equaled $940,000 annually, comprised of $540,000 denominated as base salary and $400,000 denominated as an end-of-year bonus. Nothing else in the employment agreement and arrangements between the parties that the indictment discusses would change this fixed bottom line. Any supposed “fringe benefit” – and, as we will see, the term really does not fit well here – that the X Organization (through any of its entities) furnished to Weisselberg would be treated as compensation in the company’s internal records, and charged against his $940,000 receipt. Thus, for example, suppose the Organization paid him $50,000 in cash, either directly or through a payment to a third party supplier (including other X entities) of consumer benefits to him. In that case, all else equal, Weisselberg would get $890,000, rather than $940,000, with that lower amount being treated as compensation in issued W-2s and1099s, and by him on his own tax returns. But the Organization’s internal records would still show that he had received $940,000 of compensation, including this $50,000.

5. Fraudulent double bookkeeping – Implementing this scheme required having two inconsistent sets of records: (a) the fake ones for tax reporting that excluded a part of his compensation (under the parties’ financial deal and the company’s secret bookkeeping), and (b) the true accounting records that the company maintained privately. Experts on tax enforcement agree that keeping two sets of books, in this fashion, is “a red flag” and “a classic indication of an overt act of evasion,” often causing the government to have a “slam-dunk case.”

6. Additional overt acts to conceal the fraud – Even in the company’s own ledgers, as distinct from those that were disclosed to relevant tax authorities, Weisselberg took steps to conceal his receipt of benefits. . . . 

7. A large number of the items that the company funded (and then subtracted from Weisselberg’s reported compensation) had no relationship whatsoever to the sort of items that, under appropriate circumstances, might potentially constitute tax-free employee fringe benefits. . . . The following items that the company paid for, on Weisselberg’s behalf, most emphatically do not fit the profile of potentially excludable fringe benefits:

• private school tuition expenses for Weisselberg’s family members
• a Mercedes Benz automobile that was the personal car of Weisselberg’s wife
• unreported cash that Weisselberg could use to pay personal holiday gratuities

(To treat cash as a “fringe benefit” would imply that the term covers all employee compensation. Does this mean that, whenever one is paid with cash off the books and does not report it, the IRS is merely quibbling over fringe benefits? Of course not.)

• personal expenses for Weisselberg’s other homes and an apartment maintained by one of his children; these included such items as new beds, flat-screen televisions, the installation of carpeting, and furniture for his home in Florida
• rent-free lodging and other benefits to a family member of Weisselberg .

In the light of such items, along with the secret double bookkeeping and internal company treatment of all these items as compensation, there are only three possible explanations for calling this a “fringe benefits” case. The first is that one has not read the indictment or otherwise acquainted oneself with the pertinent facts. The second is one that is ignorant, not just of extremely basic aspects of federal and state income tax law, but also of common English language usage. Calling bundles of cash and the provision of flat screen televisions in employees’ vacation homes “fringe benefits” – especially when they are not extra pay, but replace ordinary paycheck salary, dollar for dollar – would appear to leave no employee compensation outside the term’s potential scope. The third is that one has decided to misinform one’s audience.

8. Fraudulent mischaracterization of employee compensation, supported by deceptive bookkeeping – The company also reported Weisselberg’s annual end-year payments ($400,000 for the years 2011-2018) as non-employee compensation, using Form 1099 rather than the W-2 that is used for salary. He relied on this mischaracterization to make deductible annual contributions out of these amounts to a Keogh plan, which is a tax-deferred pension plan that one can deductibly fund by using self-employment income, but not employee wages. To help support this characterization (which the indictment asserts Weisselberg knew was false), end-year payments would be made by X Organization entities of which he was not an employee, such as the Mar-a-Lago Club and Wollman  Rink Operations LLC. This creation of a false paper trail – since he had not directly performed services for these entities supporting the receipt of such payments from them, even as an independent contractor – fits the alleged pattern of not merely taking incorrect tax positions, but engaging in intentionally misleading overt acts in support of a conspiracy to defraud. It also arguably shows consciousness of guilt.

9. Evasion of New York City income tax by falsely denying local residence status – The indictment states that, from 2005 through 2013, Weisselberg and the other corporate defendants acted to “conceal his status as a New York City resident” and thus “enable[d him] to avoid the payment of New York City income taxes”. It further adds that he “spent most of his days each year in New York City, working in the X Organization offices at X Tower. He was a New York City resident, and knew that he was a New York City resident, but falsely claimed to his tax preparer and to the tax authorities that he was not a New York City resident” . . . 

It is a widely-known fact among New York-area taxpayers – and not just those with specific tax and accounting knowledge, like Weisselberg himself – that, if one has an apartment in New York City (as he did) and is in the City for at least a part of more than 183 days in a given year, then one counts for that year as a City resident. This is not an issue that turns on any broader (or other) facts and circumstances. Under the indictment’s stated facts, therefore, Weisselberg unambiguously was a New York City resident for all of the years from 2005 through 2013, based on an objective black-letter rule that is hardly arcane or obscure.

10. What was X’s role in all this? . . . There is little direct discussion of what X himself did or knew personally in relation to the facts asserted in the indictment. If X is subsequently indicted by the DA in connection with the crimes alleged here or anything else, his conviction would require proof in court, beyond a reasonable doubt, of his requisite criminal actions and intent. In the courtroom of public discussion and debate, however, any claim that the crimes asserted in the indictment could have occurred without his participation and knowledge may be viewed by many as begging credulity [i.e. he’s as guilty as hell].

Voting Is War, Part 2

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In their latest ruling, the Supreme Court’s six reactionaries ignored the law in order to help their party’s candidates get elected. Paul Waldman of The Washington Post discusses the latest case in which the Court’s liberals are reduced to writing a “blistering” dissent:

To no one’s surprise, the Supreme Court’s six conservatives [No, radical reactionaries] on Thursday ruled for Republicans in a pair of key voting rights matters, upholding two Arizona voter suppression laws. It’s part of the long-running partnership between Republicans in the states, Republicans in Congress and Republicans on the Supreme Court to make sure that the rules of American elections are twisted and contorted to give the GOP every possible advantage.

At issue was a section of the Voting Rights Act (VRA), which was once the crown jewel of U.S. voting law and a foundation of political equality, that has been gutted by a Supreme Court unremittingly hostile to voting rights.

And the justices aren’t done, not by a long shot.

One of Arizona’s laws makes it a crime for most people to deliver someone else’s absentee ballot, a heretofore common practice of particular importance to Native Americans in the state, who find it challenging to vote given their wide geographic dispersion and slow mail service (but also used regularly by organizers in Black and Latino communities). The other law says that if you vote in the wrong precinct, the state will throw out your entire ballot, even the votes for races where the precinct is irrelevant (e.g., president).

The laws were challenged as violating the VRA because they disproportionately affect minority voters. As the plaintiffs pointed out, minority voters in Arizona are about twice as likely to mistakenly vote in the wrong precinct for a variety of reasons.

Did the Republicans who put that law in place understand that? Oh, you bet they did.

Section 2 of the VRA says statutes are invalid if they have the effect of harming people’s ability to vote on the basis of their race, even if you can’t prove that the party that passed it was doing so with racist intent. Whether that section of the VRA has any meaning in the wake of this decision is an open question.

The decision, written by Justice Samuel A. Alito Jr., argued that the system in Arizona offers ample opportunity for everyone to vote, even if it seems to fall heavier on some people, and concluded that the state’s interest in preventing voter fraud outweighs whatever overall disparate impact the law has.

The fact that voter fraud is almost entirely fictional did not disturb the justice.

In a blistering dissent [starting on page 45 of this PDF], Justice Elena Kagan wrote that the majority had essentially invented its own reading of the VRA, and accused the majority of pretending not to know that such state laws are occurring in a context where efforts to suppress minority voters continue.

“No one would know this from reading the majority opinion,” Kagan remarked.

Kagan’s disgust is appropriate. This case is part of a long and ignominious campaign by the court’s conservatives to hollow out American democracy in any way they can, so long as doing so helps the Republican Party. For this court, no voting rights provision is too sacrosanct to strike down and no voter suppression law is too discriminatory to uphold. If next week Republican-controlled states brought back poll taxes and literacy tests, the court would probably find a reason to validate them.

In the past few years, this court has again and again taken a hammer to the rules meant to ensure free elections in which all Americans can participate on an equal footing. Let’s remind ourselves:

  • In 2010, the justices said corporations have the right to use their billions to influence elections.
  • In 2011, they struck down a public financing law meant to allow candidates relying on small donations to compete with self-financed millionaires and billionaires.
  • In 2013, they struck down the heart of the Voting Rights Act, claiming it was no longer necessary because racism is pretty much over.
  • In 2018, they upheld ruthless voter purges that disenfranchise thousands of voters.
  • In 2019, they ruled that partisan gerrymandering, no matter how clearly it disenfranchises people, is beyond the ability of the courts to do anything about.

The partisan commitment of this court is so clear that in oral arguments, the lawyer for the Arizona GOP comfortably declared that the party has standing to support the law throwing out ballots cast at the wrong precinct because counting such votes “puts us at a competitive disadvantage relative to Democrats.” He knew who he was talking to.

The big picture here is that the court’s conservatives operate according to the “heads we win, tails you lose” approach to voting rights, in which with only the occasional exception, the best predictor of how a voting rights case will turn out is which side the Republican Party is taking.

Pretty much the entire GOP is now committed to the idea that if elections were fair, they’d lose — so elections must not be allowed to be fair. That’s why they’ve been on a tear at the state level, passing dozens of laws making voting more cumbersome, inconvenient and difficult, all aimed directly at populations they believe are more likely to vote for Democrats.

Wherever those laws pass, they’re being challenged in court. But what’s going to happen when those challenges make their way to the Supreme Court, with its 6-to-3 conservative supermajority? The answer is all too clear.