Why Bragg's case is bogus

[Cardin Drake 1,855]

Nice straight forward explanation of why Bragg's case is ridiculous:

https://thelibertydaily.com/trumps-hush-money-prosecution-is-bogus-case-bogus/

Here’s a quick tutorial on why Bragg doesn’t have a legal leg to stand on—call it “Federal Campaign Finance Law for Dummies 101”—an apropos title, given what’s going on.

Daniels claims that she had a sexual encounter with Trump in 2006, fully 10 years before the 2016 presidential election, which Trump denies. For the payment, Daniels agreed to sign a nondisclosure agreement, which is a standard provision in many settlement agreements of personal injury cases and other claims.

Bragg contends that Trump falsified business records, a misdemeanor, when this payment was listed as legal expenses instead of a campaign expense.

Supposedly, according to Bragg, that converted the misdemeanors into felonies because Trump was concealing another crime. That other crime, according to prosecutors, is a violation of Section 17-152 of New York law, which make it a misdemeanor to “promote … the election of any person to public office by unlawful means.”

Besides the fact that it’s very strange to allege that the commission of a misdemeanor for the purpose of covering up the commission of another misdemeanor is enough to allege a felony, the only plausible theory that Bragg is pushing for the alleged “unlawful means” was a violation of federal law by concealing a campaign-related payment.

With me so far?

But Trump was running for president. The raising and spending of money for campaigns for president and Congress is governed by federal law, the Federal Election Campaign Act, not state law. Any wrongdoing related to federal campaign financing falls under the enforcement authority of federal officials, not a local prosecutor like Bragg.

In fact, the Federal Election Commission, on which I served as a commissioner, has civil enforcement authority and the U.S. Department of Justice has criminal enforcement authority over violations of this law.

For the nuisance-value settlement payment to Daniels to fit within Bragg’s rickety legal structure, it would have to be a crime under federal law. In other words, it would have to be considered a campaign-related expense that was falsely reported under the Federal Election Campaign Act.

If you want an example of such a violation, just look at the $113,000 civil penalty the Hillary Rodham Clinton campaign and the Democratic National Committee agreed to pay in 2022. They listed the payments for the opposition research that formed the basis for the infamous Steele dossier, which fabricated the entire Trump-Russia collusion hoax, as legal expenses instead of opposition research.

But opposition research on the opposing candidate is obviously a campaign-related expense under applicable federal law, so the FEC had authority to investigate and enforce the law against this deception.

That’s not the case with the Daniels’ payment. For starters, the incident in question that led to the payment is alleged to have happened 10 years before the 2016 campaign. More importantly, the payment fails the test the FEC applies to determine whether an expense is campaign-related.

Under federal law and corresponding regulations, the FEC applies the “irrespective test” to “differentiate legitimate campaign and officeholder expenses from personal expenses.” As the FEC explains on its website, under the irrespective test, “personal use is any use of funds … to fulfill a commitment, obligation, or expense of any person that would exist, irrespective of the candidates’ campaign.”

In other words, if the expense would exist even if the individual were not a candidate, then it’s personal and not a campaign expense.

The payment to Daniels clearly fails that test. Trump was a celebrity long before he ran for office, and celebrities get these kinds of nuisance claims all the time. In fact, the prosecution’s first witness in the New York case, David Pecker, said he had helped settle similar claims to avoid legal costs and embarrassment by suppressing stories for numerous other celebrities, including Arnold Schwarzenegger and Tiger Woods.

The easiest way to understand this test is to take the example of a personal injury claim.

Candidate A has a car accident several years before he runs for Congress that injures another driver. After the campaign has started, the candidate decides to settle the personal injury claim made by the other driver by paying that driver $130,000 in exchange for a nondisclosure agreement.

Settling and paying the claim may help the candidate in his campaign by avoiding personal embarrassment. But that doesn’t make it a campaign expense. It’s a claim that would exist even if the candidate were not running for office and is thus considered a personal expense under federal law.

Daniels’ claim is also a personal claim that existed long before Trump ran for the presidency and, given his celebrity status, would have continued to exist even if he never ran for president.

That’s no doubt why neither the FEC nor the Justice Department ever filed an enforcement action against the Trump campaign or Trump personally over the payment; specifically, because it was not a campaign-related expense.

You know what would have led to enforcement actions? If Trump had actually claimed this was a campaign-related expense and had used campaign funds to make the payment, I have no doubt he would have been prosecuted by the feds for the illegal use of campaign funds to pay a personal expense.

That’s what former Rep. Jesse Jackson Jr., D-Ill., went to prison for after he pleaded guilty in 2013 to spending $750,000 on personal expenses.

Keep in mind that Bragg’s entire manufactured case of 34 counts of falsifying business records depends entirely on the legitimacy of his contention that the settlement payment should have been listed as a campaign-related expense.

It shouldn’t because it wasn’t.

And all of the other testimony from the prosecution’s witnesses about this payment and other settlement payments that are obviously intended to blacken the character of the former president and prejudice the jury doesn’t change the fact that none of these payments were campaign-related expenses. Period. End of story—or at least it should be.

[AURex 2,031]

libertydaily.com

Yep, I'm going to eat up that giant smoking steaming cow plop of wingnut misinformation.

How could you even think of posting something from that extremist far right QAnon source? Definition of zero credibility. Might as well post some crazoid BS by Alex Jones.

 

[homersapien 11,447]

"Daniels claims that she had a sexual encounter with Trump in 2006, fully 10 years before the 2016 presidential election, which Trump denies."

So what?

When was the nondisclosure agreement executed?

I'm not going to bother pick the rest of this pile of propaganda apart.

Edited May 3 by homersapien

[AU9377 5,039]

22 hours ago, Cardin Drake said:

Nice straight forward explanation of why Bragg's case is ridiculous:

https://thelibertydaily.com/trumps-hush-money-prosecution-is-bogus-case-bogus/

Here’s a quick tutorial on why Bragg doesn’t have a legal leg to stand on—call it “Federal Campaign Finance Law for Dummies 101”—an apropos title, given what’s going on.

Daniels claims that she had a sexual encounter with Trump in 2006, fully 10 years before the 2016 presidential election, which Trump denies. For the payment, Daniels agreed to sign a nondisclosure agreement, which is a standard provision in many settlement agreements of personal injury cases and other claims.

Bragg contends that Trump falsified business records, a misdemeanor, when this payment was listed as legal expenses instead of a campaign expense.

Supposedly, according to Bragg, that converted the misdemeanors into felonies because Trump was concealing another crime. That other crime, according to prosecutors, is a violation of Section 17-152 of New York law, which make it a misdemeanor to “promote … the election of any person to public office by unlawful means.”

Besides the fact that it’s very strange to allege that the commission of a misdemeanor for the purpose of covering up the commission of another misdemeanor is enough to allege a felony, the only plausible theory that Bragg is pushing for the alleged “unlawful means” was a violation of federal law by concealing a campaign-related payment.

With me so far?

But Trump was running for president. The raising and spending of money for campaigns for president and Congress is governed by federal law, the Federal Election Campaign Act, not state law. Any wrongdoing related to federal campaign financing falls under the enforcement authority of federal officials, not a local prosecutor like Bragg.

In fact, the Federal Election Commission, on which I served as a commissioner, has civil enforcement authority and the U.S. Department of Justice has criminal enforcement authority over violations of this law.

For the nuisance-value settlement payment to Daniels to fit within Bragg’s rickety legal structure, it would have to be a crime under federal law. In other words, it would have to be considered a campaign-related expense that was falsely reported under the Federal Election Campaign Act.

If you want an example of such a violation, just look at the $113,000 civil penalty the Hillary Rodham Clinton campaign and the Democratic National Committee agreed to pay in 2022. They listed the payments for the opposition research that formed the basis for the infamous Steele dossier, which fabricated the entire Trump-Russia collusion hoax, as legal expenses instead of opposition research.

But opposition research on the opposing candidate is obviously a campaign-related expense under applicable federal law, so the FEC had authority to investigate and enforce the law against this deception.

That’s not the case with the Daniels’ payment. For starters, the incident in question that led to the payment is alleged to have happened 10 years before the 2016 campaign. More importantly, the payment fails the test the FEC applies to determine whether an expense is campaign-related.

Under federal law and corresponding regulations, the FEC applies the “irrespective test” to “differentiate legitimate campaign and officeholder expenses from personal expenses.” As the FEC explains on its website, under the irrespective test, “personal use is any use of funds … to fulfill a commitment, obligation, or expense of any person that would exist, irrespective of the candidates’ campaign.”

In other words, if the expense would exist even if the individual were not a candidate, then it’s personal and not a campaign expense.

The payment to Daniels clearly fails that test. Trump was a celebrity long before he ran for office, and celebrities get these kinds of nuisance claims all the time. In fact, the prosecution’s first witness in the New York case, David Pecker, said he had helped settle similar claims to avoid legal costs and embarrassment by suppressing stories for numerous other celebrities, including Arnold Schwarzenegger and Tiger Woods.

The easiest way to understand this test is to take the example of a personal injury claim.

Candidate A has a car accident several years before he runs for Congress that injures another driver. After the campaign has started, the candidate decides to settle the personal injury claim made by the other driver by paying that driver $130,000 in exchange for a nondisclosure agreement.

Settling and paying the claim may help the candidate in his campaign by avoiding personal embarrassment. But that doesn’t make it a campaign expense. It’s a claim that would exist even if the candidate were not running for office and is thus considered a personal expense under federal law.

Daniels’ claim is also a personal claim that existed long before Trump ran for the presidency and, given his celebrity status, would have continued to exist even if he never ran for president.

That’s no doubt why neither the FEC nor the Justice Department ever filed an enforcement action against the Trump campaign or Trump personally over the payment; specifically, because it was not a campaign-related expense.

You know what would have led to enforcement actions? If Trump had actually claimed this was a campaign-related expense and had used campaign funds to make the payment, I have no doubt he would have been prosecuted by the feds for the illegal use of campaign funds to pay a personal expense.

That’s what former Rep. Jesse Jackson Jr., D-Ill., went to prison for after he pleaded guilty in 2013 to spending $750,000 on personal expenses.

Keep in mind that Bragg’s entire manufactured case of 34 counts of falsifying business records depends entirely on the legitimacy of his contention that the settlement payment should have been listed as a campaign-related expense.

It shouldn’t because it wasn’t.

And all of the other testimony from the prosecution’s witnesses about this payment and other settlement payments that are obviously intended to blacken the character of the former president and prejudice the jury doesn’t change the fact that none of these payments were campaign-related expenses. Period. End of story—or at least it should be.

If this case was going to be brought, it should have been brought by the Justice Dept.   The Justice Dept decided not to pursue the case.  This isn't the first time that this type case has been brought.  John Edwards went to trial and won.

Trump has had sex with a list of women and then paid them to keep quiet.  That isn't a secret.  Trump's real exposure is not in this case, but in cases in Georgia and D.C.

[Cardin Drake 1,855]

I don't know, AU9377, I think the prosecutors are counting on the same kind of sterling legal analysis from the jury that we just got from Homer and Rex.  Trump..duh...orangeman bad...guilty.

The case will never survive appeal, but then that's not the point of the prosecution.  

[auburnatl1 5,038]

1 hour ago, Cardin Drake said:

I don't know, AU9377, I think the prosecutors are counting on the same kind of sterling legal analysis from the jury that we just got from Homer and Rex.  Trump..duh...orangeman bad...guilty.

The case will never survive appeal, but then that's not the point of the prosecution.  

I watched Fox and msnbc last night do their daily analysis on the case. Wow.  Fox mocked everyone from judge to jurors and said case was total deep state frivolous, prosecution was doomed. MSNBC was all about the brilliance of the prosecution and whether trump could get jail time and which prison.

After watching both anyone would have total bipolar confusion. It further underscored why this country and this forum is sometimes a delusional mess.

[Cardin Drake 1,855]

Yep, it's also why it's impossible to have a serious discussion on this forum.  I think the last time this country was this divided was 1860. Hopefully, not quite as divided. 

[aubaseball 2,652]

But just look at these responses and comments.    Trump haters attack the writer.   What did the guy say that was false?   And if anyone can’t see that this particular trial is bogus, then this country will never come together.   

[Cardin Drake 1,855]

1 hour ago, aubaseball said:

But just look at these responses and comments.    Trump haters attack the writer.   What did the guy say that was false?   And if anyone can’t see that this particular trial is bogus, then this country will never come together.   

Yeah, and the writer was a commissioner on the F.E.C.  He understands the issue.  And it's not like the Washington Post or NY Times were going to print that article.  

[homersapien 11,447]

7 hours ago, Cardin Drake said:

I don't know, AU9377, I think the prosecutors are counting on the same kind of sterling legal analysis from the jury that we just got from Homer and Rex.  Trump..duh...orangeman bad...guilty.

The case will never survive appeal, but then that's not the point of the prosecution.  

If you have a problem with the law as written, then that's what you should be complaining about.

I haven't been following the case closely, but it seems there's been testimony that supports the charge it was done specifically for political purposes rather than private.

The fact the act occurred years before the 2016 election strengthens that argument IMO.

 

 

Edited May 4 by homersapien

[auburnatl1 5,038]

5 hours ago, Cardin Drake said:

Yep, it's also why it's impossible to have a serious discussion on this forum.  I think the last time this country was this divided was 1860. Hopefully, not quite as divided. 

Look at these 180 interpretations of hicks testimony. 

https://www.foxnews.com/opinion/ny-vs-trump-braggs-witness-hope-hicks-implodes-case-against-trump

https://www.cnn.com/videos/politics/2024/05/03/hope-hicks-trump-hush-money-trial-reid-digvid.cnn

[AURex 2,031]

It does no good to counter the crazoid wingnut propaganda with actual factual information. I've given up even trying. They are lunatics.

 

[aubaseball 2,652]

16 minutes ago, AURex said:

It does no good to counter the crazoid wingnut propaganda with actual factual information. I've given up even trying. They are lunatics.

 

My thoughts exactly 

[Aufan59 80]

On 5/4/2024 at 5:36 PM, auburnatl1 said:

I watched Fox and msnbc last night do their daily analysis on the case. Wow.  Fox mocked everyone from judge to jurors and said case was total deep state frivolous, prosecution was doomed. MSNBC was all about the brilliance of the prosecution and whether trump could get jail time and which prison.

After watching both anyone would have total bipolar confusion. It further underscored why this country and this forum is sometimes a delusional mess.

I get my news and information from neither.  
 

But if I had to choose my information source, I’d go with whichever source didn’t recently lose a lawsuit for almost $800 million for intentionally lying.

 

Edited May 5 by Aufan59

[Cardin Drake 1,855]

13 hours ago, AURex said:

It does no good to counter the crazoid wingnut propaganda with actual factual information. I've given up even trying. They are lunatics.

 

Man, talk about a complete lack of self-awareness regarding a response to a detailed, factual, legal argument citing precedents by a subject matter expert...

[AUFAN78 3,926]

On 5/2/2024 at 10:17 PM, AU9377 said:

If this case was going to be brought, it should have been brought by the Justice Dept.   The Justice Dept decided not to pursue the case. 

https://thehill.com/opinion/criminal-justice/4625253-on-alvin-bragg-and-the-art-of-not-taking-the-law-too-seriously/

[aubaseball 2,652]

7 hours ago, Aufan59 said:

I get my news and information from neither.  
 

But if I had to choose my information source, I’d go with whichever source didn’t recently lose a lawsuit for almost $800 million for intentionally lying.

 

So, are you saying that no other network has been sued for defamation in the history of this country?   

[AURex 2,031]

3 hours ago, AUFAN78 said:

https://thehill.com/opinion/criminal-justice/4625253-on-alvin-bragg-and-the-art-of-not-taking-the-law-too-seriously/

Nope! The conservatives really want to try to dump this into a federal court so Trump can kill it if he is re-elected. But this is absolutely a NY STATE case. He can't axe this one. Conservatives are whining to no avail.

 

[AUFAN78 3,926]

31 minutes ago, AURex said:

Nope! The conservatives really want to try to dump this into a federal court so Trump can kill it if he is re-elected. But this is absolutely a NY STATE case. He can't axe this one. Conservatives are whining to no avail.

 

https://www.nytimes.com/2024/04/23/opinion/bragg-trump-trial.html

About a year ago, when Alvin Bragg, the Manhattan district attorney, indicted former President Donald Trump, I was critical of the case and called it an embarrassment. I thought an array of legal problems would and should lead to long delays in federal courts.

After listening to Monday’s opening statement by prosecutors, I still think the district attorney has made a historic mistake. Their vague allegation about “a criminal scheme to corrupt the 2016 presidential election” has me more concerned than ever about their unprecedented use of state law and their persistent avoidance of specifying an election crime or a valid theory of fraud.

To recap: Mr. Trump is accused in the case of falsifying business records. Those are misdemeanor charges. To elevate it to a criminal case, Mr. Bragg and his team have pointed to potential violations of federal election law and state tax fraud. They also cite state election law, but state statutory definitions of “public office” seem to limit those statutes to state and local races.

Both the misdemeanor and felony charges require that the defendant made the false record with “intent to defraud.” A year ago, I wondered how entirely internal business records (the daily ledger, pay stubs and invoices) could be the basis of any fraud if they are not shared with anyone outside the business. I suggested that the real fraud was Mr. Trump’s filing an (allegedly) false report to the Federal Election Commission, and that only federal prosecutors had jurisdiction over that filing.

A recent conversation with Jeffrey Cohen, a friend, Boston College law professor and former prosecutor, made me think that the case could turn out to be more legitimate than I had originally thought. The reason has to do with those allegedly falsified business records: Most of them were entered in early 2017, generally before Mr. Trump filed his Federal Election Commission report that summer. Mr. Trump may have foreseen an investigation into his campaign, leading to its financial records. He may have falsely recorded these internal records before the F.E.C. filing as consciously part of the same fraud: to create a consistent paper trail and to hide intent to violate federal election laws, or defraud the F.E.C.

 

In short: It’s not the crime; it’s the cover-up.

Looking at the case in this way might address concerns about state jurisdiction. In this scenario, Mr. Trump arguably intended to deceive state investigators, too. State investigators could find these inconsistencies and alert federal agencies. Prosecutors could argue that New York State agencies have an interest in detecting conspiracies to defraud federal entities; they might also have a plausible answer to significant questions about whether New York State has jurisdiction or whether this stretch of a state business filing law is pre-empted by federal law.

However, this explanation is a novel interpretation with many significant legal problems. And none of the Manhattan district attorney’s filings or today’s opening statement even hint at this approach.

Instead of a theory of defrauding state regulators, Mr. Bragg has adopted a weak theory of “election interference,” and Justice Juan Merchan described the case, in his summary of it during jury selection, as an allegation of falsifying business records “to conceal an agreement with others to unlawfully influence the 2016 election.”

As a reality check: It is legal for a candidate to pay for a nondisclosure agreement. Hush money is unseemly, but it is legal. The election law scholar Richard Hasen rightly observed, “Calling it election interference actually cheapens the term and undermines the deadly serious charges in the real election interference cases.”

In Monday’s opening argument, the prosecutor Matthew Colangelo still evaded specifics about what was illegal about influencing an election, but then he claimed, “It was election fraud, pure and simple.” None of the relevant state or federal statutes refer to filing violations as fraud. Calling it “election fraud” is a legal and strategic mistake, exaggerating the case and setting up the jury with high expectations that the prosecutors cannot meet.

The most accurate description of this criminal case is a federal campaign finance filing violation. Without a federal violation (which the state election statute is tethered to), Mr. Bragg cannot upgrade the misdemeanor counts into felonies. Moreover, it is unclear how this case would even fulfill the misdemeanor requirement of “intent to defraud” without the federal crime.

In stretching jurisdiction and trying a federal crime in state court, the Manhattan district attorney is now pushing untested legal interpretations and applications. I see three red flags raising concerns about selective prosecution upon appeal.

First, I could find no previous case of any state prosecutor relying on the Federal Election Campaign Act either as a direct crime or a predicate crime. Whether state prosecutors have avoided doing so as a matter of law, norms or lack of expertise, this novel attempt is a sign of overreach.

Second, Mr. Trump’s lawyers argued that the New York statute requires that the predicate (underlying) crime must also be a New York crime, not a crime in another jurisdiction. The district attorney responded with judicial precedents only about other criminal statutes, not the statute in this case. In the end, the prosecutors could not cite a single judicial interpretation of this particular statute supporting their use of the statute (a plea deal and a single jury instruction do not count).

 

Third, no New York precedent has allowed an interpretation of defrauding the general public. Legal experts have noted that such a broad “election interference” theory is unprecedented, and a conviction based on it may not survive a state appeal.

Mr. Trump’s legal team also undercut itself for its decisions in the past year: His lawyers essentially put all of their eggs in the meritless basket of seeking to move the trial to federal court, instead of seeking a federal injunction to stop the trial entirely. If they had raised the issues of selective or vindictive prosecution and a mix of jurisdictional, pre-emption and constitutional claims, they could have delayed the trial past Election Day, even if they lost at each federal stage.

nother reason a federal crime has wound up in state court is that President Biden’s Justice Department bent over backward not to reopen this valid case or appoint a special counsel. Mr. Trump has tried to blame Mr. Biden for this prosecution as the real “election interference.” The Biden administration’s extra restraint belies this allegation and deserves more credit.

Eight years after the alleged crime itself, it is reasonable to ask if this is more about Manhattan politics than New York law. This case should serve as a cautionary tale about broader prosecutorial abuses in America — and promote bipartisan reforms of our partisan prosecutorial system.

Nevertheless, prosecutors should have some latitude to develop their case during trial, and maybe they will be more careful and precise about the underlying crime, fraud and the jurisdictional questions. Mr. Trump has received sufficient notice of the charges, and he can raise his arguments on appeal. One important principle of “our Federalism,” in the Supreme Court’s terms, is abstention, that federal courts should generally allow state trials to proceed first and wait to hear challenges later.

 

This case is still an embarrassment, in terms of prosecutorial ethics and apparent selectivity. Nevertheless, each side should have its day in court. If convicted, Mr. Trump can fight many other days — and perhaps win — in appellate courts. But if Monday’s opening is a preview of exaggerated allegations, imprecise legal theories and persistently unaddressed problems, the prosecutors might not win a conviction at all.

Jed Handelsman Shugerman (@jedshug) is a law professor at Boston University.

Edited May 6 by AUFAN78

[AU9377 5,039]

I do think it is important for people to realize that Bragg's decision to bring this case is not connected to the Justice dept in any way. 

[cbo 7,926]

On 5/4/2024 at 8:36 AM, auburnatl1 said:

I watched Fox and msnbc last night do their daily analysis on the case. Wow.  Fox mocked everyone from judge to jurors and said case was total deep state frivolous, prosecution was doomed. MSNBC was all about the brilliance of the prosecution and whether trump could get jail time and which prison.

After watching both anyone would have total bipolar confusion. It further underscored why this country and this forum is sometimes a delusional mess.

It's difficult to watch Fox or msnbc. No news, just party line reactions to news. Can someone please just give me the information?

The smartest thing Trump ever did was tap into this with a pithy phrase. Media bias is real, so he can use "fake news" to combat any verified truth he doesn't like and a segment of the population will eat it up. 

[AU9377 5,039]

19 hours ago, aubaseball said:

So, are you saying that no other network has been sued for defamation in the history of this country?   

There is no example of any other major network admitting to purposefully lying to the American public like Fox.

[auburnatl1 5,038]

47 minutes ago, AU9377 said:

There is no example of any other major network admitting to purposefully lying to the American public like Fox.

Almost $800 million is the largest settlement by far in media history. And that was the compromised amount Fox got them down to. 

Trying to feed their hard cores the conspiracy that they craved definately had a consequence.

[aubaseball 2,652]

4 hours ago, AU9377 said:

There is no example of any other major network admitting to purposefully lying to the American public like Fox.

I’ll give it to some of you…you never seem to answer a direct question or statement.   Bravo on the deflection 

[Cardin Drake 1,855]

7 hours ago, AU9377 said:

I do think it is important for people to realize that Bragg's decision to bring this case is not connected to the Justice dept in any way. 

Except the leading prosecutor in the case was a top Biden DOJ official:  https://justthenews.com/government/courts-law/prosecutor-trump-hush-money-case-previously-paid-dnc-consulting-report