Judge Merchan has so restricted my testimony that defense has decided not to call me. Now, it’s elementary that the judge instructs the jury on the law, so I understand his reluctance. /1
But the Federal Election Campaign Act is very complex. Even Antonin Scalia—a pretty smart guy, even you hate him—once said “this [campaign finance] law is so intricate that I can’t figure it out. /2
Picture a jury in a product liability case trying to figure out if a complex machine was negligently designed, based only on a boilerplate recitation of the general definition of “negligence.” They’d be lost without knowing technology & industry norms. /3
/4 Someone has to bring that knowledge to the jury. That—not the law—was my intended testimony. For example, part of the state’s case is that they wrongly reported what they knew to be a campaign expenditure in order to hide the payment until after the election.
/5 Cohen even testified they just wanted to get past the election.
/6 so, we were going to go over the reporting schedules, showing that even if they thought it was a campaign expenditure to be reported, an expenditure made on October 27 (when $$ sent to Daniels atty) would not, under law, be reported until Dec. 8, a full 30 days after election
/7 but While judge wouldn’t let me testify on meaning of law, he allowed Michael Cohen to go on at length about whether and how his activity violated FECA. So effectively, the jury got its instructions on FECA from Michael Cohen!
/8 judge Merchand has asked the sides to submit further proposed instructions on FECA, and then I assume they’ll argue it out. I’m not optimistic.
/9 So you’ve got a judge who contributed to Trump’s opponent presiding over a trial by a prosecutor who was elected on a vow to get Trump, for something DOJ and FEC chose not to prosecute, on a far-fetched legal theory I which the prosecution has been allowed …
/10… To repeatedly misstate the law or elicit incorrect statements of law from witnesses (and unlike Cohen’s, my testimony would not have gone to the ultimate legal issue). The judge’s bias is very evident.
/11 Why do pluralities of Americans see Biden as a greater threat to democracy than Trump? It’s in part because of farces like this trial.
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Not all Democrats favor or do all of these things, but all are supported by many prominent Democrats and large parts of the party: 1) vote against certifying electoral college votes in the last 3 GOP wins, including in states GOP won by >20 points;
2) Aggressively seek to keep Cornell West, Jill Stein, and even Donald Trump off ballots;
3) call for the abolition of the Electoral College, because they see it as a near-term obstacle to power, and support extra-constitutional means to effectively abolish the College;
After carefully reviewing the recent batch of SCOTUS opinions, I have reached the following conclusions--most of which seem to go against the grain: 1. Presidents will not soon be ordering the assassination of their political opponents, at least not in large numbers;
1/4
2. You can be punished for breaking into the U.S. capitol; 3. Regulatory agencies will continue to employ thousands of expert (& non-expert) bureaucrats who will continue to exert remarkable control over our daily lives; 4. The President can be prosecuted for unofficial acts;
2/4
5. Giving defendants jury trials will not end all public safety regulations; 6. We will still have social media for the foreseeable future, with lots of opinions being expressed; 7. Just like the era from 1789 to 1984, agencies will manage to cope without Chevron deference;
3/4
In another thread, , I explain why payments to Stormy Daniels were not a violation of the Federal Election Campaign Act (FECA). In this thread, I'll explain why no FECA reporting obligations were violated, and why the prosecution's theory makes no sense. /1
M. Cohen testified that Trump wanted to keep Daniels allegations under wraps until after the election. Prosecutors claim they therefore illegally did not report the campaign expenditure, and by doing so intended to, and did, have "the purpose of influencing an election." /2
Presidential campaigns file monthly reports with the Federal Election Commission (FEC). These are filed on the 20th of each month, and cover expenditures and contributions for the prior month. So in 2016, the Sep. report was filed 9/20, and covered expenditures made in August. /3
Let's take a stab... Falsifying business records under NY law is a misdemeanor, unless done to hide a crime. Bragg says that crime was a violation of the Federal Election Campaign Act (FECA), or of a NY statute making it illegal to influence an election by "unlawful" means./1
But if the latter, what is the "unlawful means?" An alleged violation of FECA. So it comes down to FECA. There are two potential violations here. One is acceptance of an unlawful contribution by the campaign. The other is incorrect reporting of a contribution by the campaign. /2
Either way, we have to have a campaign contribution. That allegedly occurred when Cohen advanced money to pay the Stormy Daniels settlement. FECA defines a contribution as any payment made "for the purpose of influencing an election." The 2016 max legal contribution was $2700. /3
/1 I appreciate @DavidAFrench and @whignewtons giving me an extended shoutout discussing the Trump indictment last week @thedispatch@advopinions. I want to take the FEC issue up again w/ David, because I respect him and because we'll need his pro-1st A. voice in future fights.
/2 David questions the wisdom of the indictment, but believes that federal campaign finance law was violated by Trump Org's payments to Stormy Daniels. And he's got a precedent on his side--the Dist. Ct. judge let basically the same theory go to trial in the John Edwards case.
/3 The theory is simple: Fed law defines a campaign contribution as anything "for the purpose of influencing" an election for federal office. Hush money pd. Daniels was "for the purpose of influencing" 2016 prez race, and so was an illegal and unreported campaign contribution.
Early voting is already underway in many states. We're 6 weeks out from "election day." Early voting should be dramatically cut back; we should re-establish election day voting as the norm, and early and absentee voting as necessary but limited exceptions. Here's why: /1
What would you think if jurors started voting midway through the trial, before hearing all the evidence, and couldn't change their votes? In response, it's claimed that early voters are the hard core partisan who won't change their votes. /2
This leaves out that a) some might change on the basis of late information; and b) for elections such as township trustee, village council, etc. most candidates spend a few hundred dollars, and don't start campaigning until October. Let's give them time to knock on doors. /3