Blogpost:
"A Potential Problem for the Trump Indictment":
Has a NY court ever allowed a conviction from this statute, NYPL 175 requiring "intent to defraud," based on an internal business record, i.e., on which others are not likely to rely? shugerblogcom.wordpress.com/2023/04/04/a-p…
2/ I haven't done a deep dive. But I have checked the posts and essays by vocal pro-indictment experts arguing that the case is clear.
National reporters have asked this question for over a week. So far, they haven't answered it. The indictment is here: manhattanda.org/wp-content/upl…
4/ The felony NYPL 175.10 requires the cover-up of an underlying crime.
The indictment doesn't specify an underlying crime.
The "statement of facts" doesn't specify an underlying crime.
That's astonishing.
5/ Now @manhattanDA@AlvinBraggNYC is explaining in a press conference that these were campaign violations.
Astonishing.
If that's the theory, these crimes are likely preempted by federal law, i.e., NY state does not have jurisdiction over these cases.
6/ Bragg is asked why he didn't specify any underlying crime. He says "The law didn't require us to."
Terrible answer. This is an embarrassment to the rule of law.
7/ Six and a half years later, and @manhattanDA says he didn't explain why the misdemeanor 175.10 got bumped up to a 175.05 to a felony...
"because the law didn't require us to."
This is indefensible.
8/ In press conference, Bragg finally says "NY state election law" & refers to fed election law.
This case is preempted by the fed statute FECA, and NY state law confirms, no state jurisdiction. Either way, it's headed to fed court for a year:
9/ Teper v. Miller (11th Cir 1996):
"Cases in which preemption was not found invariably involve state laws that are more tangential to the regulation of federal elections."
The filing violation is directly related to the federal campaign.
Remember: The preemption clause is broad.
10/ I don't know what the right answer is on preemption.
But I don't decide these cases. This is headed to fed court for an injunction like Trump v. Vance.
And the Roberts Court, even setting aside political bias, is pro-preemption.
Plus NY state law confirms that preemption.
11/ And even if the Roberts Court is less pro-preemption now than it was with Breyer and Kennedy, the federalism concerns are addressed by NY state campaign law confirming federal jurisdiction for federal campaign violations & filing matters:
12/ I keep hearing it’s standard operating procedure not to specify underlying crimes.
That’s no reason to obscure & hide the case here.
It’s a reason to take a hard look at a bad practice that is morally wrong and should be scrutinized as a 5th/14th due process/6th A. violation.
13/ This thread and the blog post edited and pulled together as a guest essay in @nytimes:
"The Trump Indictment Is a Legal Embarrassment" nytimes.com/2023/04/05/opi…
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@RickPildes 3/ Barrett picked up on the Special Counsel's argument of the absurdity that crim statutes need a clear statement, if only a tiny number of statutes include (she said only three or so). Surely Congress did not mean for presidents to be broadly immune so generally from crim law.
At @FedSoc National Student Convention, @NoahRFeldman is telling this audience that the formalist separation of powers & Scalia’s Morrison dissent are anti-originalist and dangerous…
And he’s crushing it. He is quoting Madison Federalist 47-51 and the audience is uncomfortable.
@FedSoc @Harvard_Law 3/ @NoahRFeldman says the Constitution’s original structure is functionalism and “checks and balance,” not formal “separation of powers.”
I haven’t put the point this strongly, but my research shows he’s more right than wrong.
And more historically correct than Scalia.
Thank you @NotreDameLRev (Vol. 100) for accepting "Venality and Functionality: A Strangely Practical History of Selling Offices, Administrative Independence, and Limited Presidential Power."
I'm deeply honored & excited to work with you!
#newlawrevarticles papers.ssrn.com/sol3/papers.cf…
3/ My @SSRN draft "Freehold Offices v. Despotic Displacement" has more detail on:
The Opinions Clause;
The Ratification Debates;
Common law default rules for "good cause" removal; Charts on the Founders' Bookshelf & 18th C. English dictionaries: papers.ssrn.com/sol3/papers.cf…
My good friend Jeff Cohen (@BCLAW prof. former prosecutor) persuaded me that I was wrong about a criticism of the @ManhattanDA case against Trump:
These purely internal records like paystubs could count for intent to defraud.
1/
2/ Last April, I wrote in @nytimes:
"What, in practice, is the meaning of 'intent to defraud'? If a business record is internal, it is not obvious how a false filing could play a role in defrauding if other entities likely would not rely upon it and be deceived by it."
See below:
@nytimes 3/ The statutes 175.05 & .10 require:
"falsifying business records...with intent to defraud."
A false tax return or FEC filing would defraud the govt, but I asked how a pay stub would defraud anyone if no one ever relies on it or even looks at it: nytimes.com/2023/04/05/opi…
I know legal commentators are saying "Judge Merchan denied Trump's motions and has scheduled a trial for March 25, and this is now real and happening."
Hang on. There is a real chance that Trump's lawyers win a stay in federal court. (This gets technical about abstention). 1/
2/ I'm not revealing anything the lawyers don't already know.
They've sought these kinds of stays and injunctions in fed court before against NY prosecutors.
See Trump v. Vance on Manhattan DA subpoena for tax records. Trump lost every stage but won a 1-year delay, 2019-2020.
3/ Trump's lawyers can seek an injunction in fed district court (and a stay) on grounds of 1) no state jurisdiction 2) federal preemption 3) selective prosecution, partisan bias, violation of 14th A.