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Tag Archives: Criminal Law

Justice Comes Calling for You Know Who

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A real estate developer, former game show host and sometime politician was in court yesterday in New York City. A grand jury having issued an indictment, the Manhattan District Attorney will now prosecute him. As with other criminal cases, the wheels of justice will grind slowly. The defendant isn’t due back in court until December, unless there’s a plea bargain first. If the matter eventually goes to trial, it won’t be until 2024 (or even later).

This case has captured many people’s attention. The defendant’s trip from his house in Florida to a New York courtroom was given the kind of coverage we haven’t seen since John Kennedy’s body was flown back to Washington or O. J. Simpson was followed by police on the San Diego Freeway.

I confess to have followed the case fairly closely myself (while avoiding cable “news”). I think Jennifer Rubin of The Washington Post, who has called herself “a recovering lawyer”, summed up the situation quite well:

The indictment centers on hush money payments to adult-film star Stormy Daniels and two others possessing information that [the defendant] did not want circulating before the 2016 election. At the heart of the allegations: A raft of check stubs, corporate records and invoices documented the payments as legal services to his former attorney Michael Cohen….

Any pundits who speculated ahead that the case was weak, misreported the “intent” requirement under New York law or ignored obvious arguments putting the charges in compliance with the statute of limitations may have been premature in denigrating the case. Once more they’d be wise to hold their fire given some strategic ambiguities apparent in the indictment.

[District Attorney] Bragg sets out the allegations: [the defendant] was part of a scheme to pay off three individuals (a doorman, Daniels and a second woman, Karen McDougal) as part of an effort to “catch and kill” allegations of extramarital affairs (which [he] has denied). The indictment alleges that [he] directed Cohen (who already pleaded guilty to federal crimes based on these same facts) to make the payments through shell companies and invoices falsely labeled “legal retainer.” A plethora of check stubs, invoices and general ledger entries form the foundation of the case.

Importantly, the indictment ties [defendant’s] actions to the election in two key ways: First, evidence of his desire to drag out payments to Daniels beyond the election so he might not have to pay up in full. Second, as soon as he was sworn in, the doorman and “Woman 1” were released from their deals. Once the election was over, [the defendant] didn’t care what they said.

And then, in Paragraph 44 of the indictment, Bragg quotes from the plea entered by Cohen in federal court:

“[O]n or about October of 2016, in coordination with, and at the direction of … the defendant], I arranged to make a payment to a second individual with information that would be harmful to the candidate and to the campaign to keep the individual from disclosing the information…. I participated in this conduct …, for the principal purpose of influencing the election.”

[The defendant] is not being singled out or treated unfairly. The core of the indictment alleges that [he] violated New York books and records law, a crime that is regularly prosecuted, according to research compiled by former prosecutors. In this case, those violations arguably impacted an extremely close presidential election. False statements in furtherance of a scheme to pull the wool over the eyes of voters is hardly inconsequential.

The indictment suggests two options to elevate charges. Bragg alleges that records were falsified in furtherance of a scheme to contravene state and federal election laws. He also says [the defendant] took steps to mischaracterize the true nature of the payments for tax purposes. Tax law provides another sound basis for bumping the charges up to felonies.

While the indictment does not set out precisely which crimes elevate books and records violations to felonies, Bragg at his news conference pointed specifically to misstatements to tax authorities, to federal election law and to N.Y. Election Law § 17-152, which makes it illegal for “two or more persons [to] conspire to promote or prevent the election of any person to a public office by unlawful means.” With the testimony of Cohen and others, plus the documents, this may not be hard to prove.

What about what’s not in the indictment? Bragg did not cite specific statutes he will rely upon to pursue felonies. But there is nothing sneaky or underhanded about that. Bragg presented what he thought he needed to — no more and no less. Media impatience is no reason to reveal more in an indictment than he would normally do at this stage. (New York legal experts point out to me that even in the jury instructions, the prosecutor need not specify the precise crime that bumps up a charge to a felony.)

Brookings Institution’s Norman Eisen, who has written extensively on the case, tells me, “The 44-paragraph recital of the evidence is absolutely damning.” And while we may be frustrated with the lack of legal argument, he says that “there’s no legal requirement in New York for Bragg to plead with any more specificity than he has done here.”

Eisen, who served as co-counsel to the House Judiciary Committee in [the defendant’s] first impeachment hearing, adds, “There will undoubtedly be much more to come, both when [the defendant] files his inevitable bill of particulars, and as the case otherwise unfolds through the trial and pretrial process.” There is ample case law for using federal and state election law violations to bump up a records falsification case.

While the complaint goes into some detail on efforts to make sure Cohen knew he was “loved” and had friends in “high places” (the defendant runs a “pressure campaign,” as the indictment titles one section), it does not specifically charge witness tampering or obstruction. But such actions speak to consciousness of guilt, an awareness that [the defendant] needed Cohen to remain quiet because he feared their scheme would become public.

At his news conference, Bragg said, “Under New York state law, it is a felony to falsify business records with intent to defraud and intent to conceal another crime. That is exactly what this case is about. Thirty-four false statements made to cover up other crimes. These are felony crimes in New York state no matter who you are.” Bragg is certainly right that these are “bread and butter” white-collar crimes routinely prosecuted. The New York Times reports, “Since Mr. Bragg took office in 2022, prosecutors have filed 117 felony counts of the charge, against 29 individuals and companies, according to data kept by the office.”

While frustrating for the media and legal pundits, we are not likely to get more detail until pretrial motions are heard [later this year]. The judge put a protective order on the evidence, so that cannot be shared with the public. And while the judge reportedly admonished [the defendant] about threats to the prosecutor or others, he will be free to share (or not) his views and arguments — unless later subjected to a gag order…. As a criminal defendant, he cannot say everything he wants; like other defendants, if he threatens court personnel or incites violence, he’ll find himself back before the judge. (He certainly went right up to the line during remarks [in Florida], with references to the judge and his family.)

…  The judge and jury won’t care how loudly [the defendant] and his cultists whine about his plight. They certainly won’t care that the media wants to find out Bragg’s legal strategy. The matter rests with the New York court — which is what equal justice under the law demands.

It matters not one bit that the defendant is being investigated by other agencies for other crimes or that millions of Americans chose to give someone like him a victory in the Electoral College. It also doesn’t matter one bit that people who think the criminal case is weak will be given a lot of publicity (controversy sells). After all these years, this guy is finally the defendant in a criminal case. Let justice be served.

PS: The indictment isn’t worth reading. The Statement of Facts that came with the indictment is much more interesting. It describes the conspiracy to sway the election.

The Government Strikes Back in Florida

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If our depraved former president (FPOTUS) ceased to breathe, the world would be a much better place.

However, in light of the sorry fact that FPOTUS is still breathing, the government did two things today. First, they filed a motion to stay (put on hold) the recent ruling by one of FPOTUS’s “judges” in Florida that interfered with the criminal investigation of FPOTUS’s theft of government documents. But the government limited this request to the 100 or so classified documents found by the FBI when they searched FPOTUS’s lair. The government pointed out that the former president has no right to control access to classified documents under any possible interpretation of the law. They also asked that the “special master” (or outside party the “judge  wants) not be allowed to review the classified documents in order to determine if they somehow belong to FPOTUS:

Specifically, the government seeks a stay to the extent the Order (1) enjoins the further review and use for criminal investigative purposes of records bearing classification markings that were recovered pursuant to a court-authorized search warrant and (2) requires the government to disclose those classified records to a special master for review. The government respectfully requests that the Court rule on this motion promptly. If the Court does not grant a stay by Thursday, September 15, the government intends to seek relief from the Eleventh Circuit (i.e. the higher level in the federal judiciary responsible for Florida, Georgia and Alabama).

The other thing the government did was to file an appeal with the Eleventh Circuit regarding the order for a special master to be appointed at all. The beauty of the appeal is that it allows other judges, some of whom are more competent and less corrupt, to get involved in FPOTUS’s stupid lawsuit; and the government is in no rush to have the appeal ruled on, assuming that a special master can’t be appointed until the Eleventh Circuit rules, which could be months from now.

It helps to have a Department of Justice that is, unlike the one FPOTUS was in charge of,  competent and not corrupt. If you’d like to see some of your tax dollars at work:

The United States’ Motion for a Partial Stay Pending Appeal

Declaration of Alan E. Kohler, Jr., Assistant Director, Counterintelligence Division, Federal Bureau of Investigation

Merrick Garland Has To Get It Right This Time

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Merrick Garland’s Department of Justice failed to prosecute the Monster of Mar-a-Lago (aka a cancer on America) for obstruction of justice after he was removed from office, even though the Mueller report showed how guilty he was. The Attorney General is now getting a second chance. 

Neal Katyal, a former Acting Solicitor General of the United States, describes “the future criminal case against D____ T____”:

Congress and the Justice Department now find themselves in a complex dance, set to the tempo of the Jan. 6 hearings. The House select committee has already uncovered evidence suggesting that former President D____ T____ committed serious federal crimes.

Congress cannot bring criminal charges; the Justice Department must do so. And critics of the department are asking why it does not appear to be investigating these allegations. The hearings point to a potential answer: The committee is laying a foundation upon which prosecutors can build in a subsequent investigation.

And a subsequent investigation is virtually inevitable, given the evidence generated by the committee. How could Attorney General Merrick Garland ignore the facts the American people are now learning about?

…Mr. Garland has in the past been cagey about whether there is an investigation into the former president. Yet it’s unthinkable that the Justice Department should not pursue one.

A highly respected federal judge, David Carter, has already said in a published opinion that “the court finds it more likely than not that President T____ corruptly attempted to obstruct the Joint Session of Congress on Jan. 6, 2021.” Those are not easy words for the Justice Department to cast aside. If that doesn’t merit an investigation, it’s hard to think what should.

But we’ve seen no signs of such an investigation. Ordinarily, 17 months after a crime, one would expect to see some signs of an inquiry. Witnesses before grand juries wind up talking to the media, for example, or those witnesses may file court actions to try to block the investigation. None of that appears to have happened.

Then again, this isn’t a normal investigation. Mr. Garland has known from the start that Congress is investigating the whole set of facts involving an attack on its own seat of government, and he may have made the conscious choice to hold off until he sees what Congress has developed.

Public hearings serve a subtle function. They permit the minds of the American people to acculturate to the facts and evidence. By laying out the facts that explain what T____ did, the Jan. 6 hearings can in advance help acclimate the public to why the Justice Department has to take criminal action against the former president. The hearings may afford the department a deeper and public explanation of its reasoning than an indictment out of the blue would offer. Public sentiment of this kind could help insulate the department against a claim that it is politically motivated. These hearings may prove to be a bridge between the Justice Department and the public….

What would criminal charges against D____ T____ look like? Obstruction of an official proceeding is a serious offense that requires the prosecution to show that a defendant obstructed, or attempted to obstruct, an official proceeding and that the defendant did so corruptly. The official proceeding part of this is clear — by law, on Jan. 6, Congress and the vice president must certify the votes. There appears to have been an orchestrated plot by some to try to interfere with that certification — the question is really whether the former president was part of that plot. The committee has presented evidence suggesting that Mr. T____, along with the lawyer John Eastman, and perhaps others such as the White House chief of staff, Mark Meadows, and Jeffrey Clark, a former Justice Department official, attempted to interfere with the election certification on Jan. 6. Before the hearings, it was thought that Mr. T____’s defense against this charge is that he genuinely believed that he had won the election and wasn’t acting “corruptly.”

The testimony in last week’s hearing cast immense doubt on that claim. Mr. T____’s close ally, former Attorney General William Barr, testified that he told the president that arguments claiming he had won the election were “bullshit.” Mr. T____’s daughter Ivanka testified that she believed Mr. Barr. Mr. T____s own election data people told him the same. Mr. T____ might try to claim he still believed the nonsense, but such an argument would be difficult to make given the array of people who told him in no uncertain terms that he had lost. Mr. T____ persisted, despite the warnings, to try to interfere with the lawful transfer of power. This looks very much like an attempt to obstruct an official proceeding.

The Justice Department could also bring the charge of “conspiracy to defraud the United States.” A charge of conspiracy requires proof that two or more people agreed to defraud the country. A key feature of conspiracy charges is that the plot need not succeed — charges are tethered to the agreement to do something illegal, not to actually pull it off. Prosecutors need not wait until the bomb goes off (or in this case, until the election results are wrongfully thrown out) before bringing charges.

Here, Mr. T____ faces yet another problem: Even if we were to ignore Mr. Barr and others, and accept that Mr. T____ believed he had won the election, courts have ruled that a genuine but mistaken belief is not enough to defeat a conspiracy charge. Oliver North, for example, famously claimed he did not conspire to violate a particular foreign affairs law because he believed that law to be unconstitutional, but the courts threw that claim out. The law does not work that way, and it cannot work that way particularly when people who control the entire machinery of government advance such preposterous claims.

Finally, the Justice Department could bring seditious conspiracy charges. Such charges have already been used by the Justice Department against members of the Oath Keepers and the Proud Boys. This is one of the most serious charges in the federal criminal code, but it’s also the one that is the hardest for prosecutors to bring against Mr. T____.

The charge requires prosecutors to prove that two or more people agreed to use force to delay the execution of a law or to overthrow the government. Here, Mr. T____’s defense would be that while he may have wanted to delay certification of the election, he did not ever formally agree with someone else to use “force.” The communications uncovered by the committee, showing an agreement with Mr. Eastman and others, are not likely to reveal anything about force. As such, while the committee may call some of the invaders of the Capitol seditious conspirators, it is, under the present publicly known set of facts, unlikely to yield that criminal charge against the former president.

Mr. Garland has these charges to consider, and potentially others such as wire fraud, arising out of evidence the committee presented in the second hearing about Mr. Trump misleading his donors. Based on the evidence presented so far, it seems as if the most likely charges are obstruction of an official proceeding and conspiracy, and not seditious conspiracy.

The committee has done a masterful job of starting to present its case to the American people, who are, after all, the first audience for their argument. And it has done so at a time when inflation, war in Ukraine, reproductive rights, gun violence and climate change equally demand our attention.

But the only way we as Americans have control over the decisions of elected bodies and the president in each of these areas is through our votes. If an incumbent president can use the machinery of government to orchestrate a way to throw our votes out, the foundations of our democracy will have crumbled. If you care about inflation, or foreign policy or anything else, you have to care about this. And so too should the Justice Department….

What a Fool or Creep Believes

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Back when there was a plague upon the nation (not the plague caused by the virus), the question whether the president was lying or merely mistaken was often discussed. Reputable journalists at reality-based news organizations didn’t want to say he was lying (30,000 times in four years) since maybe he believed all the nonsense he said. So, perhaps he wasn’t lying. It felt safer, less judgmental, to say he was merely saying things that weren’t true (30,000 times).

A very good reason to think he was lying his big boy pants off was that every “falsehood” he shared with us was self-serving. People who are merely confused occasionally say something that doesn’t make themselves look good. Not our former president. He never wavered from his fundamental message: “I’m a winner, not a loser”. He never deviated from the con man’s creed: “Never give a sucker (i.e. the rest of us) an even break”.

As the January 6th committee reviews the evidence, similar questions about this person’s state of mind are being asked. Did he really believe he won the election? Did he really intend to stop Congress from counting the electoral votes?

Josh Marshall of Talking Points Memo argues that trying to figure out what the creep believed is a waste of time:

For T____, there is just what he wants. He “believes” whatever will get him what he wants.

Does he somehow convince himself of this? Like some kind of willed delusion? Stop it. You’re sticking too much to your linear way of thinking about belief. He hasn’t “convinced” himself. Why would he need to and what would that mean? He just says whatever will get him what he wants. Full stop….

Trump doesn’t “believe” anything.

… It cannot be the case that someone can evade legal culpability for a crime by consistently claiming not to know things that are obviously true, that everyone around him says are true, that he has no basis for disbelieving…. Otherwise, it’s a “get out of jail free” card for literally any crime. Just say consistently that you believe Mr. X threatened your life and you’re entitled to murder him without any legal consequences.

As we know from actual trials, you can’t just “believe” anything…. Your belief has to be reasonable….

We don’t need to go down the rabbit hole of the inner workings of [his] mind. That’s his problem. Not ours. As long as we do, we’re chasing a figment where there is only one possible witness: him. That’s silly.

The mob boss who says he’s never been a member of the mob isn’t confused. He’s lying because he doesn’t want to go to prison. That’s obvious. Just as this case is obvious.

One correction I’d make: not “everyone around him” was saying he lost. Rudy Giuliani and other sleazeballs were telling him the opposite. I hope that doesn’t make any difference when he’s prosecuted.

If you want more on this topic, two well-known lawyers who’ve worked for the government wrote an article for Salon about T____’s “criminal intent”:

As apologists prepare to defend his conduct, it is important to realize how shallow their defense will be. It is laughable to suggest that T____ genuinely believed he had won the 2020 election. We already know that experts and advisers told him the election results were legitimate. He heard this from his campaign advisers, Department of Justice lawyers, high-level officials in his own Department of Homeland Security and Republican elected officials [and at least 60 judges!]. T____ knew he had lost a free and fair election, but he wanted to remain in power anyway….

The committee’s work will be helpful, providing key evidence about … what T____ and others were saying and doing in public and what they were admitting in private.

[There is also] a foundation for showing T____’s corrupt intent: his long-established pattern of crying “fraud” to undermine results he didn’t like.

After T____ lost the 2016 Iowa caucuses to Ted Cruz, he cried fraud and demanded a do-over. He did the same thing in the general election after losing the popular vote to Hillary Clinton, despite winning the Electoral College… Throughout 2020, he made a series of statements along these lines … showing that even before the first vote was cast, he had no intention of accepting election results he didn’t like….

Even if T____ could somehow convince prosecutors and a jury that he really believed he had won — despite all the evidence to the contrary —  that would not have permitted him to use dishonest means to stay in power. His legal adviser, John Eastman, made clear that the scheme he and T____ tried to execute to keep T____ in power required breaking the law. You can’t keep power illegally even if you believe you really won an election. But prosecutors won’t need to reach this point, since the evidence is so strong that T____ and those around him knew he lost.