Govt: If you plead “guilty” to [whatever], we will tell the judge to let you out of jail in [n] months.
Def: If I plead “really, really, super fucking guilty,” can I get out out today?
— Heard in every court every day.
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The story using up the oxygen this week, to the detriment of the country's more urgent problems, including the confluence of an accelerating economic catastrophe and the shifting in the international geopolitical order, is the rumor that Trump will be indicted by the District Attorney in New York County for criminal violations related to the settlement of a civil dispute between himself and a former porn actress known as "Stormy Daniels."
The leak is that the government's claim is that the settlement was in effect a campaign contribution to Trump, because it was made with the intent to help Trump win the 2016 presidential election. The government’s claim is built on the factual premise that this settlement was intended to help Trump, because it included a confidentiality clause. This clause, in turn, is material, in the government’s view, because if the public had learned before the election, that Trump had had sex with a porn actress in 2007, the people would have been less likely to elect him president.
In other words, the government’s claim depends upon convincing a jury of city-hardened New Yorkers that it would have been more damaging to Trump for the public to learn that he allegedly had sex with a porn actress in 2007 than for the public not to learn of this.
The legal premise of the government's claim is that the payment required by the settlement agreement, which is variously reported as an amount between $130,000 and $150,000, was more than the maximum campaign contribution allowed. At the time of the settlement, New York law limited campaign contributions of the type at issue to $25,000:
[N]o contributor may make a contribution to any candidate or political committee, and no candidate or political committee may accept any contribution from any contributor, which is in the aggregate amount greater than . . . in the case of any election to a public office, twenty-five thousand dollars.
(ELN § 14-114(a)(ii), cir. 2016.)
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There are a number of defects in the government’s claim. First, assuming that the government can establish that the settlement agreement with Stormy Daniels was a campaign contribution, the law classifies a violation of the statutes limiting the amounts of campaign contributions as a misdemeanor:
Any person who knowingly and willfully contributes, accepts or aids or participates in the acceptance of a contribution in an amount exceeding an applicable maximum specified in this article shall be guilty of a class A misdemeanor.
(ELN § 14-126(b)(5).)
This is a problem for the government, because the law provides a relatively short statute of limitations for misdemeanor violations:
A prosecution for a misdemeanor must be commenced within two years after the commission thereof.
(CPL § 30.10(2)(c).)
It is indisputable that the alleged violation in this matter occurred in the Summer of 2016. Furthermore, the Summer of 2016 was obviously more than two years ago. As a result, the government’s claim appears to be stale.
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New York law does include a provision which may save the case. It is that:
In calculating the time limitation applicable to commencement of a criminal action, the following periods shall not be included:
Any period following the commission of the offense during which the defendant was continuously outside this state.
(CPL § 30.10(4)(a)(i).)
This is called a “tolling” provision. And as the statute makes clear, “tolling” means, essentially, that the days on which the accused is outside of New York do not count against the applicable statute of limitations.
The New York courts have developed a mechanical rule to give effect to this provision. The rule is simply to count the number of days an accused person is in New York after the commission of an alleged crime. (People v. Cruciani, 92 N.Y.S.3d 611 (2019).) If that total number of days is more than the statute of limitations allows, the case is dismissed. If it’s not, the case will proceed.
This will probably be a complicated computation in Trump’s case. Not only did he maintain a residence in New York City at all relevant times, along with being extremely easy to locate, but also he did not leave for DC until 2017, visited New York somewhat regularly, and then returned to New York for some time after he left DC, before finally settling in Florida, although he may still have a home in Trump Tower.
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A second glaring defect is that of proof. In order to get a conviction, the government must persuade the jury beyond a reasonable doubt that the settlement between Trump and Stormy Daniels wasn’t just like tens of thousands of other settlements of civil disputes which are made every year in the United States, but had this one peculiar (and hidden) purpose, and no other.
The starting point of this issue is with the way New York law defines “reasonable doubt:”
A reasonable doubt is an honest doubt of the defendant's guilt for which a reason exists based upon the nature and quality of the evidence. It is an actual doubt, not an imaginary doubt. It is a doubt that a reasonable person, acting in a matter of this importance, would be likely to entertain because of the evidence that was presented or because of the lack of convincing evidence.
To prove its case, the government will probably have to rely almost entirely on the testimony of one Michael Cohen. Michael Cohen was one of Trump’s lawyers, and he is the one who negotiated the settlement with Stormy Daniels. As part of the abusive investigations of Trump in-and-around his election and whatnot, the government put the squeeze on Michael Cohen by charging him with numerous felony violations, including loan fraud, perjury, and tax evasion, and thereby threatening him with decades in prison.
For leniency, Michael Cohen plead guilty, and also agreed to violate his oath as a lawyer and rat on his client, Trump, to whom he owed the duty of strict confidentiality. As part of this sordid deal, the government required that Michael Cohen ostensibly implicate Trump in a federal campaign finance violation in open court:
However, and presumably upon further reflection, the claim was so legally tenuous and factually flaky that even Mueller, a vicious animal if ever there were one, decided not to prosecute Trump for it. Not only is the claim a massive legal stretch, but also there is almost nothing believable about Michael Cohen. And it’s not so much his criminal record as a convicted liar which sinks his testimony. It is his obvious antipathy towards Trump, which has at least some root in the fact that when Trump went off to DC to be president, he did not bring Michael Cohen along for the ride.
Compounding the weakness of Michael Cohen’s expected testimony, and the case generally, the law provides another hurdle for the government:
[W]here two factual inferences can be drawn from the evidence, . . . one factual inference consistent with guilt and the other factual inference consistent with innocence, any defendant is entitled to the factual inference of innocence.
(People v. Johnson, 783 N.Y.S.2d 5 (2004).)
When the jury weighs the evidence, there will be two sides of the scale. On the government’s side will be Michael Cohen’s testimony. If the testimony is credible to the jury in some measure, the jury might infer that the settlement which Michael Cohen negotiated with Stormy Daniels was made on Trump’s instructions and only for the purpose of helping his presidential campaign. Upon this tenuous base, the jury might further infer that the settlement was, in fact, an illegal campaign contribution.
But those are big “ifs,” and they will only ever be reached “if” the judge permits this specious claim to proceed.
On the other side of the scale will be the evidence that the settlement is ordinary in every outward appearance, and was both beneficial and generous to the other party, Stormy Daniels. It is like tens of thousands of such settlements which resolve civil disputes every year, and like the dozens of other such shakedowns Trump has paid over the years. In addition, this side of the scale will also be weighed down with the fact that the law has a strong preference that civil disputes be settled out of court, so that in making the settlement, Trump was, in fact, abiding the express policies of the law. This, needless to say, is the exact opposite of violating the law. All of this gives substantial weight to a factual inference of innocence.
I could be wrong about this, but on balance, it appears that the jury will have to acquit Trump. The evidence which implies innocence has at least as much weight as the evidence which implies guilt, so that the evidence implying guilt will have to be disregarded. This, in turn, legally compels an acquittal. Furthermore, even without the evidence implying factual innocence, the government’s case is so infirm that no reasonable juror could have anything other than an honest doubt of Trump’s guilt.
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Of course, a trial is unpredictable. Lawyers can make horrendous mistakes, an elected judge can, and often will, do a lot to throw a case, usually for the government, and a jury is a wild card. However, it does appear that this case is doomed, both procedurally and factually, everything else being equal.
It is unfathomable that the New York County District Attorney is unable to appreciate the problems with his case. He almost certainly is working with staff attorneys to prepare it. Surely among all of the educated people who are working to bring a such a legally flawed case in such a highly charged political environment, some sense of the problems must be present.
Which begs the question: Why is he proceeding?
As a general rule, the prosecutor’s job is to vindicate society’s interest in order and that the law be obeyed. As a general rule, District Attorneys are elected upon campaign promises of pursuing various criminal law priorities. In the olden days, this usually meant getting tough on violent crime and drug offenses. These days, in a lot of the blue cities, it seems that prosecutors are elected to coddle violent criminals and to facilitate drug addiction and property crimes.
The point being that, given the purpose of criminal prosecutions, the claim against Trump is so trivial, so legally tenuous, and so stale, the fair inference is that this is not a claim being brought by a prosecutor in the discharge of the ordinary duties of his office. This claim is being brought for some other, and, therefore, abusive, purpose.
It seems to me that there are two possibilities. The first is that the Democrats for many years, have been providing assistance, financial and otherwise, to the Republican primary candidates who they consider “extreme.” The Democrat thesis is that if they can get the “extreme” Republican on the general ballot, the Democrat candidate will have a better chance of winning the election. In fact, this is why Hillary and her allies worked so hard to help Trump win the Republican primary in 2016. They knew that Hillary is widely unpopular and profoundly unlikable, and they believed that Hillary’s best chance at winning the presidency was to have Trump as her Republican opponent.
Trump is getting a boost in the polls from all of the commotion surrounding the case in New York. Not in polls of all Americans, but in polls of Republican voters. This has resulted in predictions that this prosecution assures Trump of the Republican nomination, as if it weren’t already his for the taking.
However, to bring a case like this with the intent, or hope, that it will help Trump in the primaries next year would be reckless, even for the Democrats. The situation is far too volatile to be the basis of any reasonable expectation that it will eventually end up helping the Democrat presidential candidate. Further, if the Democrats wished to boost Trump’s chances in the Republican primary in 2024, there are more reliable things they could do than cast their fate to the vicissitudes of the legal system. They could, for example, make sure that Trump gets on television a lot, and they could form a PAC to make campaign ads for him.
The second, and more likely, possibility is that the prosecutor’s office is infected with Trump Derangement Syndrome. This is a real disorder. Not in the psychology books, but in the world. There are people out there who absolutely cannot think clearly where Trump is concerned. These people would literally choose death from cancer over the cure, if it were Trump with the cure. It is more than conceivable that the prosecutors in New York County are so mentally disabled that this case is a compulsion in contrast to an exercise of sound legal judgment.
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This is just a sketch of the case at the precipice. If the case is filed, it will get more complicated.
Ultimately, however, the case will never matter. Trump almost certainly will not be convicted. Nor will the case interrupt the presidential election. Moreover, even in the remote possibility that Trump is convicted, he is an old man, with no criminal record, who is accused of a non-violent misdemeanor, with no victim. If he were anyone else, the judge would let him off with a small fine, if not an outright dismissal, so that if everyone is equal in the eyes of the law, that is the worst that Trump should be looking at — aside from hefty legal bills.
Boy, are The Dems going to be in trouble when we win. Nothing to see there. What a farce. That creepy D.A. thinks he is running for governor. The world does suck. It's a load of crap and I am praying for Mr. Trump. They never leave him alone. Meanwhile back at the Clinton Ranch... NOT to MENTION ,The Biden criminal family, Good Lord, He is single handedly taking down this country. I heard the word treason today. Excuse me? Whaaat? You have got to be kidding. Par for this course I guess.
A fine would seem the normal course of action.