Thread by @DanielRAlonso

THREAD in response to @alegalnerd: Where to begin? Since McCarthy is a smart commentator whose work I sometimes agree with, I'll start with the positive. he's right that in the old days when he was a fed, SDNY never liked letting the DA's office take "high-profile" cases.

https://twitter.com/alegalnerd/status/1411781774036799488

2/ They usually won, but not always - see eg., the CBS Murders, Tyco, BCCI, & most of the bank cases that Morgenthau started and Vance increased. He's also right that fed law generally favors prosecutors more than NYS. In other words, federal prosecutions are *easier.*

3/ That's where we part ways. On some things, he's just factually wrong: (1) NY's broad double jeopardy is not "under New York’s constitution," as @AndrewCMcCarthy says, but it is a *statute*, NY CPL 40.20

4/ This isn't me being petty - statutes can be amended much more easily, and - whaddya know? - this one was a few years ago, thanks to DA Vance and Former AG Eric Schneiderman. You see, the Helmsley case left a bad precedent in tax cases - if feds went first, NYS was out of luck.

5/ So, in making this point, McCarthy didn't mention (2) that NYS double jeopardy law was amended a few years back to add 40.20(2)(i), which allows a state tax prosecution after a federal one. So scrap that entire observation in his article.

6/ The next thing he gets wrong (3) is more of an omission: he doesn't mention that SDNY reportedly conferred use immunity on Weisselberg, meaning it would be all but impossible to prosecute him in any case involving the records of the Trump Org. cnn.com/2018/08/24/pol…

7/ Does that mean SDNY couldn't prosecute Trump & family bc of Weisselberg's immunity? Of course not, but they can't prosecute W himself & they have nothing hanging over his head to persuade him to assist the SDNY - as opposed to reluctantly answering questions under compulsion.

8/ Now for issues I have w the article that are more matters of opinion. I have trouble believing that he really thinks this is about "failing to pay taxes on corporate perks." Why this is nonsense is well-explained in this @just_security piece. justsecurity.org/77331/the-weis…

9/ The author, @DanielShaviro, lays it out well. I'll add that when you say "corporate perks" it conjures up country club memberships or garage parking spots that are sweeteners for corporate execs. If it were that, I concede that it's a less attractive case ...

10/ ... but of course every such exec knows you must pay taxes on that. But how can McCarthy use the anodyne word "perks" when he knows it's not that, for two MAJOR reasons: (a) it's Mercedes-Benzes for years for his & his wife's personal use plus a Manhattan apt plus more, &

11/ (b) it allegedly wasn't conceived of as a perk but rather a way to pay part of W's $940K salary *off the books.* That's *very* different, & something that the phrase "fringe benefits" hides in a slick manner.

12/ Another thing on the seriousness, which has received little attention: W is charged w pretending he didn't live in NYC when he did. Are you kidding me?? Not sure where Andrew lives but I live in NYC & everyone knows that it's a heavy price we pay - nearly 4% - to live here.

13/ Guess who else obviously knew that? Weisselberg. And everyone else in NYC and the Trump Org.
thebalance.com/new-york-city-…

14/ He also considers fact that DOJ hasn't jumped on this "telling," implying that there must be no case. That simply ignores the recent & current realities of DOJ. Previously, it was run by Trump's people - we don't know details, but you can bet they weren't being encouraged.

15/ Current DOJ may well be interested, but is still getting up & running, as McCarthy well knows. We don't have a single Senate-confirmed US Attorney in the country, including SDNY. Also, at this point, w/o the DA's consent, it'd be very bad form to try to "take over" the case.

16/ So fact that feds aren't involved is evidence of *nothing* here. Three final observations: (1) the statement "Ordinarily, prosecutors shy away from charging a business" is baffling. That's not my experience-in fed court or NYS court. Indeed, federal policy makes this explicit

17/ That doesn't mean they jump to always file an indictment. But they do consider the *factors* to make a reasoned decision. Two of those are cooperation and self-reporting, which I'm betting Trump Org got low marks on.

18/ (2) while it may be true "documentary evidence doesn't lie" (at least if not doctored), it's also a fact that accounting fraud prosecutions of CEOs are virtually never made w documentary evidence alone. Doesn't mean W's testimony is *necessary*, but it might be.

19/ (3) Finally, it's hard to see the violent crime observation as anything other than a political shot at Democratic prosecutors in big cities. I share some of the critiques of "progressive prosecutors" going too far, but this one is an odd criticism of Vance particularly. Why?

20/ We just had a #ManhattanDA election & Vance caught a world of hell from 4 candidates for being *too* focused on gangs. Recently in the NYDN, Vance's gangs chief, Chris Ryan, summarized the vision he developed under Vance's leadership & encouragement. nydailynews.com/opinion/ny-ope…

21/ During Vance's first term, I watched him and Ryan work together to come up with anti-gang, gun, & violence strategies. It was a marvel to watch - the not-so-subtle implication that McCarthy makes here - that Vance should start looking at violent crime - is just wrong.

22/ (To say nothing of the simple logical fallacy - a favorite of several losing DA candidates - to the effect of "the case I'm criticizing is illegitimate bc there's some other case out there that's more outrageous.") Yes, violent crime is bad. That's not what we're discussing.

end/ Anyway, as I said, I appreciate @AndrewCMcCarthy's commentary and think it is worth reading. He's just way off the mark on this one.