Because the government kills people all the time and destroys their lives and businesses. And because nobody is combing through the criminal law books trying to convict the average person for something.
I mean, the former governor of New York just said the New York prosecution against Trump wouldn’t have been brought against anyone else.
175.10 has been used before. There are many things which are firsts, and a lot of shaky legal theory. My I'd put 10 to 1 odds this gets overturned, and 5 to 1 odds it happens before it gets to the supreme court.
1. Usually they charge the predicate crime.
2. FECA has never been used as a predicate crime.
3. I don't believe a campaign finance reporting violation has been tried as election interference.
4. There are a lot of unsettled questions about these laws like can 175.10 point to a federal crime? Is hasn't been prosecuted that way before. Can it point to FECA despite FECA's broad preemption?
The examples in the article tie the business records crime to another crime that’s at least charged, things like insurance fraud, failing to pay taxes, fraudulently obtaining government benefits, etc. Remarkably, prosecutors couldn’t find evidence of “Kinpin” Trump doing any of those things.
The problem with the Trump prosecution is that it is predicated on an uncharged and rarely used election law crime, and that in turn is predicated on an uncharged federal campaign finance crime. It’s a double bank shot. It’s fair to say that prosecutors didn’t have occasion to charge someone else with a documents crime in connection with an election law crime. But there’s not a single example in your list where prosecutors upgraded the documents crime to a felony based on a chain of two other, uncharged, crimes that relate to far-flung areas of the law.
On top of that, the uncharged predicate crimes have been interpreted in a sweeping way. According to New York prosecutors, agreeing with others to suppress bad news during a campaign is criminal election interference, so long as it can be connected to any other “unlawful” act.
Then the third piece, the unlawful act underpinning the election interference charge, is a federal campaign finance violation that SDNY declined to prosecute, and which New York couldn’t have brought against Trump.
There’s the statute of limitations and jurisdictional issues: none of the claims could have been brought by themselves. There’s the due process issue: because they were not charged, Trump’s counsel had no way to challenge the novel interpretations of the election interference and election law charges.
Cuomo (the former NY AG) and Honig (a former federal prosecutor) are correct. A case based on such an elaborate legal theory with as much hair on it as this one had would not have been brought unless the defendant was Donald Trump.
This case was architected by Carey Dunne, my former boss at Davis Polk. If this case had instead been brought against a gang member, him and folks at Davis Polk would be lining up to do the appeal. But instead they have abandoned the principles of the legal profession and are looking the other way out of class loyalty. It’s shameful and a stain on the profession.
Ultimately the prosecution proved Trump’s indictment of the professional managerial class. They cannot be trusted to uphold the principles of their professions, and will abuse the authority those professions confer to advance their own ideological agendas.
> I mean, the former governor of New York just said the New York prosecution against Trump wouldn’t have been brought against anyone else.
Trump is flagrantly corrupt and coordinates crime through lackeys, many of which have been convicted of felonies. No, you don't catch old kingpins on the stuff you get everybody else with. There's definitely a two-tier justice system going on, but it bends in Trump's favor at every turn.
“Trump actually did all these bad things! But we can’t prove any of them, so we’ll prosecute him for influencing an election by covering up an affair after he already won the election. Don’t sweat the details, you gotta get creative with these kingpins.”
This is persuasive to nobody that doesn’t start from the assumption Trump is a criminal. The irony is that I used to share that assumption, because I’m a pretty trusting person. But after almost eight years of the smartest lawyers in the country going after him, I’m not so sure. My former boss at a white shoe law firm in New York helped engineer the New York case, and it’s the same kind of contrived legal theory the firm would use to help a corporate client make it seem like all their income was earned in Bermuda. Utterly unpersuasive.
Well, he hasn’t argued that he’s innocent; that the evidence is fabricated. The evidence is stuff he tweets. He argues that the system allows these mean people too much time to talk and scheme.
As a Canadian who keeps up on the news but has no skin in the game, from up here it does look petty when after seemingly hundreds of unsuccessful attempts to prosecute Trump, their “we got him now” case amounts to “he expensed an invoice from his lawyer to a business instead of paying it personally”.
That's because the things they can't get him on (yet) include inciting violence intending to prevent the lawful transition of power (aka a coup attempt) -- because the judge is deferring the case past the election -- and influencing states to cast votes in the electoral college against what their people voted for -- because the case is on hold pending investigation of the prosecutor. Both of those have already resulted in convictions of multiple Trump staffers; Trump himself has managed to delay justice in both of those more serious cases.
There is a reason they got Al Capone on tax evasion, and it wasn't because that was the worst thing he did. Crime bosses are notoriously slippery.
I mean, the former governor of New York just said the New York prosecution against Trump wouldn’t have been brought against anyone else.