Another analysis of the New York state election fraud trial: It is boring and about business integrity

A NYT opinion (not paywalled) by a New York City attorney, former Manhattan assistant district attorney Rebecca Roiphe, discusses the election fraud/hush money trial from the point of view of a person who has actually enforced the laws Trump is being charged with violating:

Now that the lawyers are laying out their respective theories of the case in the criminal prosecution of Donald Trump in New York, it would be understandable if people’s heads are spinning. The defense lawyers claimed this is a case about hush money as a legitimate tool in democratic elections, while the prosecutors insisted it is about “a criminal scheme to corrupt the 2016 presidential election.”

Yet this case is not really about election interference, nor is it a politically motivated attempt to criminalize a benign personal deal. Boring as it may sound, it is a case about business integrity.

It’s not surprising that the lawyers on both sides are trying to make this about something sexier. This is a narrative device used to make the jurors and the public side with them, but it has also created confusion. On the one hand, some legal experts claim that the conduct charged in New York was the original election interference. On the other hand, some critics think the criminal case is a witch hunt, and others claim it is trivial at best and at worst the product of selective prosecution.

As someone who worked in the Manhattan district attorney’s office and enforced the laws that Mr. Trump is accused of violating, I stand firmly in neither camp. It is an important and straightforward case, albeit workmanlike and unglamorous. In time, after the smoke created by lawyers has cleared, it will be easy to see why the prosecution is both solid and legitimate.

It would hardly make for a dramatic opening statement or cable news sound bite, but the case is about preventing wealthy people from using their businesses to commit crimes and hide from accountability. Manhattan prosecutors have long considered it their province to ensure the integrity of the financial markets. As Robert Morgenthau, a former Manhattan district attorney, liked to say, “You cannot prosecute crime in the streets without prosecuting crime in the suites.”

Lawmakers in New York, the financial capital of the world, consider access to markets and industry in New York a privilege for businesspeople. It is a felony to abuse that privilege by doctoring records to commit or conceal crimes, even if the businessman never accomplishes the goal and even if the false records never see the light of day. The idea is that an organization’s records should reflect an honest accounting. It is not a crime to make a mistake, but lying is a different story. It is easy to evade accountability by turning a business into a cover, providing a false trail for whichever regulator might care to look. The law (falsification of business records) deprives wealthy, powerful businessmen of the ability to do so with impunity, at least when they’re conducting business in the city.

Roiphe's opinion goes on to point out that prosecutors and New York courts have interpreted this law with its general purpose in mind. Because of that, the element of intent to defraud has a broad meaning. It is not limited to the intent of cheating someone out of money or property. And, as common with white collar crime cases, circumstantial evidence is often used to prove criminal intent. 

Prosecutors will ask jurors to use their common sense to infer what Trump’s intent might be for filing lots of false documents. Roiphe says that in similar trials, New York jurors often conclude that a defendant must have created a false paper trail for a reason. She asserts that jurors can conclude beyond a reasonable doubt that Trump’s lies were intended to seek to commit a crime(s) or to cover one(s) up because as she puts it, “documents don’t lie.” In this lawsuit, Trump is accused of filing 11 false invoices, 12 false ledger entries and 11 false checks and check stubs, allegedly with intent to violate federal election laws, state election laws and/or state tax laws (34 separate felonies).

From Roiphe’s experienced insider point of view description of the case, it seems that Trump probably will be found to have committed fraud by most neutral jurors. At present, Trump’s main defense is that he was merely trying to avoid embarrassing his family, not trying to violate any law. The wild card here is one or more MAGA jurors who will probably vote to acquit Trump regardless of the evidence or “common sense.”

Trump is not even trying to deny the 34 documents were false. He did that. Period. He is arguing that the false documents were filed to protect his family. Nearly all MAGA people would probably accept his lie as truth and vote to acquit him.

I am a happy liberal but am I one of the rare ones?

 Consider:

Multiple psychological studies have reported that conservatives, on average, have greater levels of subjective psychological well-being than liberals. The differences were small in size, but those studies consistently found conservatives to be more satisfied with their lives, happier, and in better self-reported health compared to liberals. One of the explanations for this finding was that conservatives tend to be more satisfied with the social system and this alleviates the negative psychological consequences of perceiving societal inequalities.

More detail:

https://www.psypost.org/are-conservatives-happier-than-liberals-new-comprehensive-research-offers-fresh-insights/

Liberals, especially liberal women, are significantly less likely to be happy with their lives and satisfied with their “mental health,” compared to their conservative peers aged from 18-55. This is the big takeaway from the 2022 American Family Survey, a striking new poll from YouGov and the Deseret News, which found that liberals are about 15 percentage points less likely to be “completely satisfied” with their lives.

Two family factors have a lot to do with this ideological gap: marital status and family satisfaction. Given that conservatives aged 18-55 are about 20 percentage points more likely to be married, as well as 18 percentage points more likely to be satisfied with their families, the lesson here is obvious. Marriage and family are strongly linked to happiness and to personal mental health in particular. 

More detail:

https://ifstudies.org/blog/why-are-liberals-less-happy-than-conservatives

Academic research consistently finds the same pattern. Conservatives do not just report higher levels of happiness, they also report higher levels of meaning in their lives. The effects of conservatism seem to be enhanced when conservatives are surrounded by others like themselves. However, in an analysis looking at ninety countries from 1981 through 2014, the social psychologists Olga Stavrova and Maike Luhmann found “the positive association between conservative ideology and happiness only rarely reversed. Liberals were happier than conservatives in only 5 out of 92 countries and never in the United States.”

Yet more detail:

https://americanaffairsjournal.org/2023/03/how-to-understand-the-well-being-gap-between-liberals-and-conservatives/

In the midst of an ongoing mental health crisis that is especially affecting children and youth, I found this headline interesting: “Conservative teenagers are generally happier than their liberal peers, study finds.” A group of Columbia University researchers studied the depressive attitudes of twelfth-graders from 2005 to 2018, comparing those aligned with conservatism and those with liberalism. They concluded that “conservatives reported lower average depressive effect, self-derogation, and loneliness scores and higher self-esteem scores than all other groups.”

In an extensive and deeply sourced article for American Affairs, Columbia University sociologist Musa al-Gharbi adds that “conservatives do not just report higher levels of happiness, they also report higher levels of meaning in their lives.” He writes that this pattern is “ubiquitous, not just in the contemporary United States but also historically (virtually as far back as the record goes) and in most other geographical contexts as well.”

https://www.denisonforum.org/daily-article/are-conservative-teenagers-happier-than-their-liberal-peers/

SNOWFLAKE'S PERSONAL OBSERVATIONS:

Regardless of the studies, both Liberals and Conservatives are so uptight about the other, I have a feeling neither side is any happier than the other side. Just a general observation.

I just know that I am fairly happy with my life. What about YOU?

The face of rising American radical right authoritarianism

A Slate article articulates it quite well:

A Supreme Court Justice Gave Us Alarming New Evidence 

That He’s Living in MAGA World

The Supreme Court heard arguments Thursday in Trump v. United States, a challenge to special counsel Jack Smith’s indictment of Donald Trump for election subversion related to Jan. 6. The former president argues that he has absolute “presidential immunity” for the “official acts” he undertook while attempting to overturn the election, rendering the prosecution against him largely unconstitutional. Despite the total lack of any known constitutional basis for this theory, the Supreme Court’s conservatives received it favorably, suggesting that they will further delay and undermine Trump’s eventual federal trial.

Dahlia Lithwick: Justice Alito trotted out this theme that was kind of bone-chilling: He said “we all want” a “stable democratic society,” and nothing could be worse for democracy than holding a president to account, because that will “lead us into a cycle that destabilizes the functioning of our country as a democracy.” As if democracy requires giving immunity to criminal presidents because otherwise they won’t leave office. This was when I went through the looking glass—it literally felt like “don’t make me hit you again” democracy.

Pam Karlan: That was the moment where I felt like saying, “That’s what just happened!” This is not something that might happen in the future. It’s what already happened! And if you let people get away with it, what you’ve said to Donald Trump is, “If you win the 2024 election, don’t bother leaving office in 2029—just stay there.” I mean, that’s really what the Supreme Court would be saying: There’s not going to be any crime if you try to stay there. It wasn’t just through the looking glass. I thought, Did you hear what just came out of your mouth?

Mark Joseph Stern: This was a great example of Alito being fully brain-poisoned by Fox News. This is been happening for years; he used to ask famously great questions, but these days it’s just culture war grievances and stuff that falls apart upon even a little bit of scrutiny. He’s losing his edge. And that was clear in this bizarro question saying that actually, a functioning constitutional democracy requires us to let presidents off the hook when they engage in a criminal conspiracy to steal elections.

But it was also clear during his next round of questions with Michael Dreeben, who represented Jack Smith. Alito had Dreeben walk through the layers that protect a president from a frivolous or vindictive prosecution. Then he dismissed each one out of hand. So Dreeben said: First, you need a prosecutor who’s willing to bring charges; then you need a grand jury to indict; then there’s a criminal proceeding in open court where a jury of his peers decides whether he’s been proved guilty. And Alito just laughs it off as though it’s a big joke. Because we all know Justice Department attorneys are hacks who’ll do whatever they want, right? And a grand jury will indict a ham sandwich—nobody believes a grand jury will do anything worthwhile. And then, oh, sure a jury of his peers, like that’s going to do anything.

This is the justice who is, by far, the most friendly to prosecutors and hostile to criminal defendants in case after case. Who could not for the life of him find a violation of the right to trial by jury or due process. But when the defendant is Trump, he suddenly thinks this entire system of criminal prosecution is such a bad joke that the Supreme Court has to step in and essentially quash this prosecution, because we can’t trust the system to work. The system that is incarcerating so many other people whose convictions Sam Alito just rubber-stamps.  

Karlan: There was shock to it, but notice what’s underneath all of that. Which is Alito saying we’re worried about vindictive prosecutions and we haven’t seen any of this up until now, that no president has prosecuted the president who came after. For all of what Alito was saying to be true, he has to believe that this prosecution itself is vindictive. Which means he has to have bought Trump’s narrative of the case. And when he does this with Dreeben, he’s attacking the deep state, which is career-line prosecutors. Remember, Dreeben’s entire career has been as a nonpartisan civil servant who’s gotten up there and argued cases on behalf of the Bush administration, on behalf of the Trump administration, on behalf of the Obama administration.  

I mean, what Alito did is essentially say: “I’m living in MAGA world.” Which views this case as a totally bogus prosecution ginned up by totally bogus people as part of a vindictive prosecution by Joe Biden. And Alito is also implicitly saying that if Donald Trump gets reelected, you just know he’s going to prosecute people vindictively too. He really has lost faith in the entire system. Or at least he’s prepared to lose faith in the system enough to decide this case in Trump’s favor.

Well ladies & germs, there you have it. Full-blown American style radical right authoritarianism in all of its glory coming at you from the highest court in the land, the USSC. Unless you are a MAGAite, the hypocrisy, irrationality and sheer malice in it cannot be ignored, justified or denied. It is all right out in the open. But, if you are a MAGAite it is automatically ignored, justified and denied by default.

It is starting to seem reasonable to think that Trump is going to avoid facing justice in all of the federal trials. The authoritarian radical right Republican USSC is actually thinking about protecting him. 

Q: Is this actually a clear example of radical right Republican authoritarianism coming from the USSC, or is it merely idle, inconsequential chit-chat, or something else?

Why the Biden Administration Won't Stop Israel

Protests and mass arrests all across the US have become the leading story in most media outlets. But often the coverage neglects to explain WHY the students are protesting. The following video explains, in part, why protests in the US have reached a boiling point in recent weeks. In a nutshell, the Biden Administration has failed to respond to public opinion or to budge an inch for 7 months. Meanwhile, the  media that delivers its message have failed to report the US' role in the ongoing genocide and forced-starvation in a fair and accurate way, and have cast doubt on the motives of protestors rather than focusing on the topics they raise. I think this video (clocking in at  17 min. ) provides a factual account of how we got where we are--i.e. why so many Americans blame the Biden Admin for the ongoing genocide. Of course, not everything can be covered in the 17 min window. Among other things, I would remind viewers of the US government's active role in the genocide by its  de-funding  of UNRWA which was, in effect, a death sentence to 10's of thousands of Gazans trapped with no food, medicine or fuel. There has been no evidence given by Israel for the charges it made. Meanwhile, an independent UN investigation  found no evidence for the allegations. The UN asked Israel to share any evidence it has. Again, none was given to substantiate Israel's allegations. While other countries have resumed funding, the US Congress passed a law freezing any funding for UNRWA for the next year with no evidence of wrong-doing on its part. While we talk about protests, which are also important, Gazans continue to die in the grip of an induced famine, and will continue dying even if by some miracle massive aid reaches them tomorrow. Here is an AP article detailing the latest on the UNRWA investigations. Other than that, I think the video, made by Al Jazeera,  accurately details a lot of important historic and contemporary facts that have shaped the current disaster, and in particular, the Biden Administration's decisive role in it. If you take issue with any of the claims put forward in the video, it would be useful to provide evidence of the falsity of those claims.

Can the US Constitution save us from Trump?

A law professor at Boston College, Aziz Rana, and author of “The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them” wrote an opinion essay for the NYT (not paywalled):

On Thursday, the Supreme Court gathered to consider whether Donald Trump, as president, enjoyed immunity from prosecution for attempting to overturn the 2020 election. Even if the justices eventually rule against him, liberals should not celebrate the Constitution as our best bulwark against Mr. Trump. In fact, the document — for reasons that go beyond Mr. Trump, that long preceded him and could well extend past him — has made our democracy almost unworkable.

For years, whenever Mr. Trump threatened democratic principles, liberals turned to the Constitution for help, searching the text for tools that would either end his political career or at least contain his corruption. He was sued under the Constitution’s emoluments clauses. He was impeached twice. There was a congressional vote urging Vice President Mike Pence to invoke the 25th Amendment to proclaim Mr. Trump unfit for office. More recently, lawyers argued that the states could use the 14th Amendment to remove Mr. Trump from the ballot because of his role in the Jan. 6 attack.

Each of these efforts has been motivated by a worthy desire to hold Mr. Trump accountable for his actions. Each of them has failed. As we head into the heat of an election season, we need to confront a simple truth: The Constitution isn’t going to save us from Donald Trump. If anything, turning the page on the man — and on the politics he has fostered — will require fundamentally changing it.

It is not just that Mr. Trump would never have been president without the Electoral College. Think about why those previous efforts to use the Constitution to hold Mr. Trump accountable failed. Impeachment processes collapsed in the Senate because it lopsidedly grants power to rural, conservative states. The Supreme Court was able not only to keep Mr. Trump on the ballot in Colorado, but also to narrow the circumstances in which disqualification could ever be used, because Republicans have been able to appoint a majority of the justices on the court, despite losing the popular vote in seven of the past eight presidential elections.

For years, liberals were squeamish about acknowledging these facts, perhaps out of habit. While most countries view their documents as rules for governing — rules that may become outdated and can be reworked if necessary — our own politicians routinely tell a story of American exceptionalism rooted in our Constitution. It is a sacred document that, as Barack Obama once put it, “launched America’s improbable experiment in democracy,” grounded on shared principles of equality, self-government and personal liberty.  

The shock to the constitutional system that Mr. Trump represents didn’t start, and won’t end, with him. The best — and perhaps only — way to contain the politics around him is to reform government, so that it is far more representative of Americans. The goal is to keep authoritarians from ever again gaining power without winning a majority and stacking powerful institutions with judges and officials wildly out of step with the public. But this requires extensive changes to our legal and political systems, including to the Constitution itself.

It now falls to Americans to avoid learning the wrong lessons from this moment. Mr. Trump may lose at the ballot box or be convicted in one of the four criminal cases he faces, including the one that started this month in Manhattan. If he is held accountable, it will not be because the Constitution saved us, given all its pathologies.

Q: Does Rana make a convincing argument to you that the Constitution cannot save us from Trump? 

Reconsidering the moral and legal culpability of bad political acts by well-meaning but deceived people

Mostly unknowingly, tens of millions of average American voters are seriously considering whether to get rid of democracy and the rule of law and replace that with comforting false promises from authoritarian demagogues and kleptocrats. The false promises include protecting democracy, civil liberties and the rule of law. The core deceit is that those people sincerely believe they are acting in good faith to protect democracy, civil liberties and the rule of law, but in fact are doing the opposite.

By now, evidence from social science is overwhelming that when it comes to politics and religion, most humans are usually more irrational than rational about many or probably most issues. These comments by expert scientists summarize the situation reasonably well:

“Republicans understand moral psychology. Democrats don’t. Republicans have long understood that the elephant [the biased, moralistic unconscious mind] is in charge of political behavior, not the rider [the often-deceived conscious mind], and they know how elephants work. Their slogans, political commercials and speeches go straight for the gut . . . . Republicans don’t just aim to cause fear, as some Democrats charge. They trigger the full range of intuitions described by Moral Foundations Theory. .... Western philosophy has been worshiping reason and distrusting the passions for thousands of years. .... I’ll refer to this worshipful attitude throughout this book as the rationalist delusion. I call it a delusion because when a group of people make something sacred, the members of the cult lose the ability to think clearly about it. Morality binds and blinds. The true believers produce pious fantasies that don’t match reality .... We do moral reasoning not to reconstruct why we ourselves came to a judgment; we reason to find the best possible reasons why somebody else ought to join us in our judgment. .... The rider is skilled at fabricating post hoc explanations for whatever the elephant has just done, and it is good at finding reasons to justify whatever the elephant wants to do next. .... We make our first judgments rapidly, and we are dreadful at seeking out evidence that might disconfirm those initial judgments.”

“.... the typical citizen drops down to a lower level of mental performance as soon as he enters the political field. He argues and analyzes in a way which he would readily recognize as infantile within the sphere of his real interests. .... cherished ideas and judgments we bring to politics are stereotypes and simplifications with little room for adjustment as the facts change. .... the real environment is altogether too big, too complex, and too fleeting for direct acquaintance. We are not equipped to deal with so much subtlety, so much variety, so many permutations and combinations. Although we have to act in that environment, we have to reconstruct it on a simpler model before we can manage it.”

Or, are most people cognitively incapable 

of dealing with inconvenient truth?

If one accepts the argument that most people who support Trump and his Republican Party are decent and well-meaning but fundamentally deceived, then one question that pops up is what are those people? There is a lot of empirical evidence that supports my assertion of profound deceit and false beliefs by most average Trump voters. My estimate based on poll data, at least about 70% hold one or more significant false beliefs, e.g., stolen election, the Great Replacement Theory, Democrats are responsible for the immigration mess, despite Trump and congressional republicans successfully blocking efforts to fix it, or one of a slew of debunked crackpot conspiracy theories that Trump says are true.

Some Trump see themselves as decent middle class folk who just don't like the direction of the country. Does that absolve them of culpability if they hold significant false beliefs about it and act accordingly? Poll data indicates that most of those people are seriously deceived about something or another. Is it possible to be decent and support an authoritarian monster who clearly intends to take the country where they claim to not want it to go? 

Or are they some combination of fascists, bigots, deceived fools, intolerant Christian nationalists, conspiracy theory crackpots, etc.? From a cognitive biology and social behavior point of view, one can see that their own minds can convince those supporters that they are patriots defending democracy, truth and the rule of law, all of which is solidly false. 

Exactly what are well-meaning people who literally support corruption and immorality or evil (in view of solid evidence) but act in sincere, good faith belief that they are supporting good against corruption and evil (contrary to solid evidence)? Are adults not responsible for their actions? Or, is democracy, reliance on truth and the rule of law morally no better than authoritarianism (dictatorship, theocracy, plutocracy), lies and the rule of the kleptocratic dictator, plutocrat and/or Christian Taliban elite? 

Most Trump supporters, probably ~95%, consider themselves to hold the moral high ground. Most think that most or nearly all liberals and Democrats are immoral at best, evil at worst. Moral superiority is part of the thinking behind support for Trump and his morally rotted party, despite Trump's proven track record of immorality and evil. Some poll data indicates that Republicans believe Trump represents their moral values either "some" (41%) or "a great deal" (38%). One can only wonder what those moral values actually are. Respect for inconvenient truth? Nope. Respect for democracy or the environment? Nope. Respect for political opposition. Hell no.

Then what are their political moral values exactly? Respect for authoritarianism parading as democracy? Yup. Virtue signaling to the tribe or cult, e.g., bigotry directed at the LGBQT community? Yup. What else? 

Q: How do you personally define or characterize most Trump supporters, or is than an unfair and/or counterproductive question? 

An arrested President

 Just imagine this scenario:

A President breaks the law. To make it worse, it's a black officer that informs him he has broken the law. The President promises not to break the law again.

Next day he does it again. The same black officer arrests the President. Takes him to a police station. Officials there are unsure whether to formally charge the President, OR..................... wait for him to be impeached first. 

This must be an analogy, or a what if story, speculative at best, right?

Guess again:

151 years before Trump was indicted, Ulysses S. Grant was arrested for speeding on a horse-drawn carriage

https://www.businessinsider.com/can-a-president-be-indicted-ulysses-s-grant-was-once-arrested-for-speeding-2018-12

In 1872, President Ulysses S. Grant was arrested for speeding on his horse-drawn carriage in Washington, DC, which was highlighted by the Washington Post back in 2018 as Trump's legal woes were growing. This was not an impeachable offense, but Grant still faced consequences. 

The police officer who arrested him was a black man who fought in the Civil War named William H. West.

On the first occasion, the president was somewhat sassy with the officer as he stopped his carriage. The city was having problems with speeding at the time, and a mother and child had recently been injured as a result. 

Grant apologized and told the officer it would not happen again. 

But on the very next day Grant was speeding so fast through Georgetown in an area West was patrolling it took the officer an entire block to slow the president down. 

The president and other speeders were taken to the local police station. Officers at the station were reportedly unsure if they could charge a sitting president if he'd not been impeached.

In the end, Grant paid a $20 bond but didn't show up to court.

Rethinking the New York election fraud case, again

I do not understand the New York state lawsuit against Trump for election fraud in connection with the hush money payment to Stormy Daniels, or whatever the crime(s) is called. This is the clearest explanation I have seen so far. 

Writing for Lawfare, Quinta Jurecic laid out the legal reasoning behind prosecutor Alvin Bragg’s lawsuit based on opening arguments and other information made publicly available so far. This summarizes most of her analysis:

Charting the Legal Theory Behind People v. Trump

The mechanics of the case as District Attorney Alvin Bragg is prosecuting it

Bragg had charged Trump under New York Penal Law § 175.10, falsifying business records in the first degree. The falsification of business records alone is a misdemeanor under § 175.05—but Bragg had boosted the charge to a felony by alleging that Trump fudged the records with the “intent to commit another crime and aid and conceal the commission thereof.” But what other crime? The indictment didn’t say.

Perhaps the charges against Trump are difficult to follow in part because the underlying facts are so byzantine. The 34 counts against Trump—all under § 175.10—each correspond to a business record allegedly falsified in service of covering up Trump’s link to the hush money payment provided to Stormy Daniels, an adult film actor and director, in October 2016. That month—at Trump’s instruction, Bragg argues—Trump’s fixer Michael Cohen paid Daniels $130,000 to remain silent about a past sexual encounter with Trump. The Trump Organization then paid Cohen back in increments from February through December 2017, with Cohen submitting invoices fraudulently labeled as charges for legal services under a retainer. The “business records” at issue in the indictment comprise Cohen’s invoices, the checks cut to repay him, and the internal records kept by the Trump Organization of these transactions—all of which were mislabeled, Bragg argues, to conceal the nature of the repayments.

So those are the business records. What about the “object crime”—that is, the crime that Trump allegedly intended to commit or conceal in such a way as to transform the underlying misdemeanor offense into a felony?

If you’re looking for the clearest statement of Bragg’s legal theory, you can find it in a November 2023 court filing opposing Trump’s motion to dismiss the case, along with Merchan’s ruling on that motion. Notably, in that ruling, Merchan clarified that § 175.10 “does not require that the ‘other crime’ actually be committed”—“all that is required is that defendant … acted with a conscious aim and objective to commit another crime.”

 

Tax Fraud (looks like the weakest charge to me)

The potential tax fraud arises from the particular method by which the Trump Organization reimbursed Cohen for his payments to Daniels. Bragg alleges that “defendant reimbursed Cohen twice the amount he was owed for the payoff so Cohen could characterize the payments as income on his tax returns and still be left whole after paying approximately 50% in income taxes.” Here, Bragg points to federal, state, and local prohibitions on providing knowingly incorrect tax information.

The twist here is that because Cohen reported his income as greater than it actually was, he paid more in taxes, rather than less—which is probably not what most people have in mind when they think of tax fraud. On this point, Bragg argues that “[u]nder New York law, criminal tax fraud in the fifth degree does not require financial injury to the state” and that “[f]ederal tax law also imposes criminal liability in instances that do not involve underpayment of taxes.” Merchan seems to have been convinced, rejecting Trump’s argument “that the alleged New York State tax violation is of no consequence because the State of New York did not suffer any financial harm.” He does not explain further, simply writing, “This argument does not require further analysis.”

Federal Election Law (intermediate strength charge?)

More central to Bragg’s legal theory are violations of federal election law under FECA (Federal Election Campaign Act). 

Bragg is arguing that Trump falsified the Trump Organization’s business records with the intent to criminally violate FECA. Ruling on Trump’s motion in limine, Merchan held that Bragg may not point to Cohen’s guilty plea or the Justice Department or FEC agreements with AMI as themselves evidence of Trump’s guilt, but that the district attorney may offer “testimony about the underlying facts … provided the proper foundation is laid.”

Trump has leveled multiple legal challenges against Bragg’s use of FECA as an object offense, arguing in his motion to dismiss that a violation of federal law can’t serve as the “other crime” under § 175.10. Merchan, however, held it could. Trump also argued that FECA preempts state law and thus rules out prosecution under § 175.10 with FECA as the object offense. Merchan rejected this argument as well, relying on a ruling last July to that effect by Judge Alvin Hellerstein of the U.S. District Court for the Southern District of New York in the context of rejecting Trump’s attempt to remove this case to federal court.

New York Election Law (the strongest charge?)

The final potential object offense, and the one that seems to bear the most weight in Bragg’s presentation of the case so far: New York Election Law § 17-152, a misdemeanor offense that prohibits “conspir[ing] to promote or prevent the election of any person to a public office by unlawful means.” Trump has sought to challenge Bragg’s use of this statute as well, arguing that it applies only to state and local elections, rather than presidential elections—which Merchan rejected. The former president likewise argued in federal court that FECA preempts § 17-152 in federal elections, but Judge Hellerstein held this to be “without merit.”

During opening statements on April 22, prosecutor Matthew Colangelo emphasized the role of § 17-152 in the district attorney’s case, declaring, “This was a planned, coordinated long-running conspiracy to influence the 2016 election, to help Donald Trump get elected.” Senior Trial Counsel Joshua Steinglass further underlined the importance of the statute the following day, describing § 17-152 as “the primary crime that we have alleged” as an object offense. “The entire case is predicated on the idea that there was a conspiracy to influence the election in 2016,” Steinglass said.

But § 17-152 requires that a conspiracy be carried out by “unlawful means”—so what “unlawful means” is Bragg alleging? Here, the legal theory loops back around to point to the other three potential object offenses: FECA violations, tax fraud, and AMI’s and Cohen’s misdemeanor falsifications of business records under § 175.05. (Note that while Merchan ruled out these third-party § 175.05 violations as object offenses for Trump’s violation of § 175.10, they’re still available to Bragg as a means by which to get to § 17-152.) Again, Bragg sets this out in his opposition to Trump’s motion to dismiss. Colangelo also gestured at this during his opening statement, describing the conspiracy as carried out “through illegal expenditures … using doctored corporate records and bank forms to conceal those payments along the way.”

Understanding this emphasizes the importance of the underlying FECA violations to Bragg’s case. The wrongdoing under federal campaign finance law supports two out of three remaining object offenses. Seen in a certain light, that makes it all the stranger that the U.S. Attorney’s Office for the Southern District of New York itself never brought federal charges against Trump under FECA—a decision for which there has never been a public explanation.
 

Summing It All Up

Let’s return to our chart for a moment. Once we incorporate the “unlawful means” needed to reach the § 17-152 object offense, it looks like this:

Clear as mud?

In all seriousness, what this deep dive has hopefully shown is that Bragg’s legal theory is genuinely tangled—though the district attorney’s office is doing its best to clarify matters. The next few weeks will show whether he’s able to walk the jury through it.

Well, that clears things up quite a lot? Not sure. But at least I’m now confident that I do not understand how to weigh various bits of evidence as the jury will see it in view of the underlying legal arguments that Bragg is asserting. It all boils down to how well Bragg can explain himself to the jury and whether Trump can sow enough confusion with at least one juror to avoid legal liability. 

Yup, clear as mud.

What about the rule of law?

This again raises the matter of laws being inadequate to deal with sophisticated white collar criminals like Trump. I keep seeing what looks to me to be major holes in both federal and state laws that allow smart criminals like Trump to avoid legal liability for their activities. It is starting to look to me like more actions that were intended to be illegal fall under various exceptions, ambiguities and loopholes than are found to incur legal liability or guilt. It’s like the exceptions and loopholes have swallowed up most of the actions that were supposed to trigger convictions for civil liability or criminal guilt.

No wonder this is costing DJT millions to defend against. A non-rich person could never mount the defenses that rich people like Trump can.

Global warming updates; New economic loss estimate; US policy if DJT is re-elected

Science Daily reports: 

Even if CO2 emissions were to be drastically cut down starting today, the world economy is already committed to an income reduction of 19% until 2050 due to climate change, a new study finds. These damages are six times larger than the mitigation costs needed to limit global warming to two degrees. Based on empirical data from more than 1,600 regions worldwide over the past 40 years, scientists assessed future impacts of changing climatic conditions on economic growth and their persistence.

"Strong income reductions are projected for the majority of regions, including North America and Europe, with South Asia and Africa being most strongly affected. These are caused by the impact of climate change on various aspects that are relevant for economic growth such as agricultural yields, labour productivity or infrastructure," says PIK scientist and first author of the study Maximilian Kotz. Overall, global annual damages are estimated to be at 38 trillion dollars, with a likely range of 19-59 trillion dollars in 2050. These damages mainly result from rising temperatures but also from changes in rainfall and temperature variability. Accounting for other weather extremes such as storms or wildfires could further raise them.

"Our analysis shows that climate change will cause massive economic damages within the next 25 years in almost all countries around the world, also in highly-developed ones such as Germany, France and the United States," says PIK scientist Leonie Wenz who led the study.  

To date, global projections of economic damages caused by climate change typically focus on national impacts from average annual temperatures over long-time horizons. By including the latest empirical findings from climate impacts on economic growth in more than 1,600 subnational regions worldwide over the past 40 years and by focusing on the next 26 years, the researchers were able to project sub-national damages from temperature and rainfall changes in great detail across time and space all the while reducing the large uncertainties associated with long-term projections.

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The NYT reports (not paywalled) about what DJT plans to do if he gets re-elected:

Five Major Climate Policies Trump Would Probably Reverse if Elected

He has called for increased oil production and said that electric vehicles will result in an ‘assassination’ of jobs

Former President Donald J. Trump has vowed to “cancel” President Biden’s policies for cutting pollution from fossil-fuel-burning power plants, “terminate” efforts to encourage electric vehicles, and “develop the liquid gold that is right under our feet” by promoting oil and gas.

When he was president, Mr. Trump reversed more than 100 environmental protections put in place by the Obama administration. Mr. Biden has in turn reversed much of Mr. Trump’s agenda.

But climate advocates argue a second Trump term would be far more damaging than his first, because the window to keep rising global temperatures to relatively safe levels is rapidly closing.

“It would become an all-out assault on any possible progress on climate change,” said Pete Maysmith, the senior vice president of campaigns at the League of Conservation Voters, an environmental group.

Senior Republicans don’t necessarily disagree. Michael McKenna, who worked in the Trump White House and is supporting Mr. Trump’s bid for a second term, said the approach to climate change would likely be one of “indifference.”

“I doubt very seriously we’re going to spend any time working on it,” Mr. McKenna said. To the contrary, he said, the Biden administration’s climate regulations would be “in trouble.”  

Mr. Trump’s likely policies would add four billion tonnes of greenhouse gas emissions to the atmosphere, according to a study by Carbon Brief, a climate analysis site.

Mr. McKenna needs to get his dark free speech points of falsehood straight. The radical right Republican climate agenda cannot be called one of “indifference” if the Biden administration’s climate regulations would be “in trouble.” One could call that an aggressive, pro-global warming climate agenda.

Pro-global warming Republicans plan to drop regulations on (i) coal and gas power plants, (ii) gut auto emissions standards, (iii) gut as much of Biden's Inflation Reduction Act as possible, killing as many solar, wind and electric car incentives as possible, (iv) incentivize unrestricted oil and gas drilling, and (v) walking away from international climate agreements to try to reduce global warming.

That is definitely not a climate agenda of indifference.

How a Columbia U student sees the Gaza war protests

Jonathan Ben-Menachem, a PhD student at Columbia U, wrote a long essay, arguing that the protests against the Gaza war are being badly distorted and described as acts of antisemitism, which he claims is untrue:

I Am a Jewish Student at Columbia. Don’t Believe What You’re Being 

Told About ‘Campus Antisemitism’

Smears from the press and pro-Israel influencers are a dangerous distraction from real threats to our safety

“Reprehensible and dangerous.” “Terrorist sympathizers.” “It’s not 1938 Berlin. It’s 2024, Columbia University, NYC.”

The White House, Congressional Republicans, and cable news talking heads would have you believe that the Columbia University campus has devolved into a hotbed of antisemitic violence – but the reality on the ground is very different. As a Jewish student at Columbia, it depresses me that I have to correct the record and explain what the real risk to our safety looks like. I still can't quite believe how the events on campus over the past few days have been so cynically and hysterically misrepresented by the media and by our elected representatives.

Last week, the Columbia University Apartheid Divest (CUAD) coalition, representing more than 100 student organizations, including Jewish groups, organized the Gaza Solidarity Encampment, a peaceful campus protest in solidarity with Palestine. CUAD was reactivated after the university suspended Students for Justice in Palestine and Jewish Voice for Peace in the fall. On Wednesday morning, hundreds of students camped out on Columbia’s South Lawn. They vowed to stay put until the university divests from companies that profit from their ties to Israel. Protesters prayed, chanted, ate pizza, and condemned the university’s complicity in Israel’s attacks on Gaza. Though counter-protesters waved Israeli flags near the encampment, the campus remained largely calm from my vantage point.

Columbia responded by imposing a miniature police state. Just over a day after the encampment was formed, university President Minouche Shafik asked and authorized the New York Police Department to clear the lawn and load 108 students – including a number of Jewish students – onto Department of Corrections buses to be held at NYPD headquarters at 1 Police Plaza. One Jewish student told me that she and her fellow protesters were restrained in zip-tie handcuffs for eight hours and held in cells where they shared a toilet without privacy. The NYPD chief of patrol John Chell later told the Columbia Spectator that “the students that were arrested were peaceful, offered no resistance whatsoever, and were saying what they wanted to say in a peaceful manner.”

Smears from the press and pro-Israel influencers, who have levied charges of antisemitism and violence against Jewish students, are a dangerous distraction from real threats to our safety. I saw politicians compare student organizers to neo-Nazis and call for a National Guard deployment, apparently ignorant of the lives lost at Kent State and in Charlottesville, and with very little pushback from national media. This is a repulsive form of self-aggrandizement that I can only assume is intended to preserve relationships with influential donors. Calls to more heavily police our campus actively endanger Jewish students, and threaten the regular operations of the university far more gravely than peaceful protests.

It’s true, the fact that CUAD organizers fundamentally reject bigotry and hate has not stopped unrelated actors from exploiting opportunities to shamefully harass Jewish students with grotesque or antisemitic statements. I condemn antisemitism – which should seem obvious since I have experienced it many times myself. (This likely won’t keep controversial Columbia Business School professor Shai Davidai from calling me a kapo.) But the often off-campus actions of a few unaffiliated individuals simply do not characterize this disciplined student campaign. The efforts to connect these offensive but relatively isolated incidents to the broader pro-Palestinian protest movement mirror a wider strategy to delegitimize all criticism of Israel.

As this national discourse over “campus antisemitism” reached a boiling point over the weekend, the Gaza Solidarity Encampment saw CUAD organizers lead joint Muslim and Jewish prayer sessions and honor each other’s dead. This is wholesome, human stuff – it doesn’t make for sensationalist headlines about Jew-hating Ivy Leaguers.

.... a Passover Seder service was held at the encampment. Would an antisemitic student movement welcome Jews in this way? I think not.
 

I am wary of a hysterical campus discourse – gleefully amplified by many of the same charlatans who have turned “DEI” into a slur – that draws attention away from the ongoing slaughter in the Gaza Strip and settler violence in the occupied West Bank. We should be focusing on the material reality of war: the munitions our government is sending to Israel, which kill Palestinians by the thousands, and the Americans participating in the violence. Forget the fringe folks and outside agitators: the CUAD organizers behind the campus protests have rightfully insisted on divestment as their most important demand of the Columbia administration, and on sustained attention to the situation in Palestine.

When I posted Thoughts about the pro-Palestine protest at Columbia University two days ago, I got some sharp criticism for not diving deep enough into the sources of information that alleged antisemitism b y the protesters. My big mistake was not wanting to give my email out to a source, Jewish Insider, that required it to read the article. I found out this morning that I was partly mistaken about the email. Anyway, I just blew it off and cited some allegedly antisemitic rhetoric that allegedly came from the protestors. It didn’t come from protesters. It came from outside infiltrators.

It was pointed out to me that the source of one bit of alleged antisemitism by protesters, Chants from protesters of "Go back to Poland", was basically made up. It was a lie. This is what Jewish Insider actually wrote:

After Saturday night’s widespread antisemitic harassment on campus, several Jewish Columbia students said they felt afraid for their safety for the first time.

“[Saturday night] was an absolute breaking point and the first time people were truly afraid,” Eliana Goldin, a third-year political science major, told Jewish Insider. “My friends and I saw [non-Columbia students] sneak onto campus through a gap in the fence and we were verbally harassed, and some of my friends were physically assaulted. Public safety and NYPD did not help us. We were essentially stalked and followed as we tried to leave the escalating situation.”

According to Goldin, the physical assaults included assailants slapping a Jewish student, another pouring water on several students and others attempting to grab Israeli flags and run away with them.

“They yelled at us to go back to Poland, that we have no culture and chanted, ‘Strike strike Tel Aviv,” Goldin recalled. “My rabbi’s decision to tell everyone to stay away from campus was the right decision,” she said of Buechler’s statement, “because last night proved that the NYPD isn’t capable of protecting us… the environment here is openly hostile and possibly dangerous.”

Well, there it is. Right out in the open. The antisemitism was not coming from Columbia student protesters. It was coming from thugs, maybe antisemitic (maybe not), who snuck onto campus and harassed Jewish students.

That same Jewish Insider source in my post of two days ago was also cited for most of the rest of the allegedly antisemitic rhetoric. 

One reliable source that was cited, the BBC reported rhetoric "echoing that of terrorist organizations, especially in the wake of the recent massacre against the Jewish people, is despicable." Is that necessarily antisemitic? 

Some people see the phrase or chant, from the river to the sea, Palestine will be free, as profoundly antisemitic. Others see it as a call for Palestinian liberation and dignity, in view of the lack of freedoms Palestinians have in the territory between the Jordan River and the Mediterranean Sea. In short, the meaning ultimately depends on the speaker, listener, and context. 

Is it possible that the protesting students are not knowingly antisemitic and protesting what they see as genocide in Gaza and American complicity in it? Is the student who wrote this essay, Mr. Ben-Menachem, a cynical liar? He claims to be a Jew who was present and saw no antisemitism among the protestors. What reason would he have for lying? 

Q: Is Germaine a fool for even trying to figure out what is really going on here? 

Looking back: The origin of COVID; The failure of Ukraine-Russia peace talks

A long AP article reviews the uncertainty about where COVID originated. Not surprisingly, China privately obstructed and blocked investigations into the origin while publicly proclaiming transparency and cooperation. That is just how morally rotted dictatorships operate. The AP article includes these comments:

Toxic: How the search for the origins of COVID-19 turned politically poisonous

The hunt for the origins of COVID-19 has gone dark in China, the victim of political infighting after a series of stalled and thwarted attempts to find the source of the virus that killed millions and paralyzed the world for months.

The Chinese government froze meaningful domestic and international efforts to trace the virus from the first weeks of the outbreak, despite statements supporting open scientific inquiry, an Associated Press investigation found. That pattern continues to this day, with labs closed, collaborations shattered, foreign scientists forced out and Chinese researchers barred from leaving the country.

As early as Jan. 6, 2020, health officials in Beijing closed the lab of a Chinese scientist who sequenced the virus and barred researchers from working with him.

Scientists warn the willful blindness over coronavirus’ origins leaves the world vulnerable to another outbreak, potentially undermining pandemic treaty talks coordinated by the World Health Organization set to culminate in May.

At the heart of the question is whether the virus jumped from an animal or came from a laboratory accident. A U.S. intelligence analysis says there is insufficient evidence to prove either theory, but the debate has further tainted relations between the U.S. and China.

Unlike in the U.S., there is virtually no public debate in China about whether the virus came from nature or from a lab leak. In fact, there is little public discussion at all about the source of the disease, first detected in the central city of Wuhan.

Crucial initial efforts were hampered by bureaucrats in Wuhan trying to avoid blame who misled the central government; the central government, which muzzled Chinese scientists and subjected visiting WHO officials to stage-managed tours; and the U.N. health agency itself, which may have compromised early opportunities to gather critical information in hopes that by placating China, scientists could gain more access, according to internal materials obtained by AP.  

Secrecy clouds the beginning of the outbreak. Even the date when Chinese authorities first started searching for the origins is unclear. “There was a chance for China to cooperate with WHO and do some animal sampling studies that might have answered the question,” said Tulane University virologist Robert Garry. “The trail to find the source has now gone cold.”

It is not surprising that the Chinese government obstructed and lied. It is deeply disappointing that American scientists kept telling us that they knew the virus came from a natural source, while denying the possibility or plausibility of a lab-leaked virus that was possibly man-made, maybe funded by US tax dollars. 

We will never know the truth. We are thus free to believe what we want based on the incomplete evidence there is. I choose to believe (i) the origin was more likely a lab leak than natural source, maybe man made, (ii) the Chinese government is lying, (iii) the elite American scientists to told us a false story have no credibility, (iv) existing evidence fully supports calling what elite American scientists to told us a false story, and (v) we will never know the truth.

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An article published by Responsible Statecraft discusses a recent analysis of peace talks between Ukraine and Russia in 2022. The talks got fairly close to being finalized. According to the RS article, the talks failed to bear fruit largely because (i) changing battlefield conditions convinced Ukrainian President Volodymyr Zelensky that he could win the war militarily, (ii) Western allies’ hesitance to engage diplomatically with Russia and simultaneous ramping up of military support for Ukraine, and (iii) the discovery that Russian forces had committed atrocities in Bucha. RS writes:

The RAND corporation’s Samuel Charap and Johns Hopkins University professor Sergey Radchenko published a detailed timeline and analysis of the talks between Russian and Ukrainian negotiators just after the Russian invasion in February 2022 that could have brought the war to an end just weeks after it had begun. 

On some of these points, the authors contend that earlier accounts have been overstated. The idea that the U.S. and the UK “forced” Zelensky to back out of peace talks is “baseless,” say Charap and Radchenko, though they acknowledge that “the lack of Western enthusiasm does seem to have dampened his interest in diplomacy.”

On the suggestion that the discovery of war crimes convinced the Ukrainian president to abandon negotiations, the authors note discussions “continued and even intensified in the days and weeks after the discovery of Russia’s war crimes, suggesting that the atrocities at Bucha and Irpin were a secondary factor in Kyiv’s decision-making.”

But taken together, these factors, along with certain details of the agreement that were never finalized, were enough to imperil the negotiations.

Now several years later, it is reasonable to believe that the combination of Zelensky's mistaken belief in a winnable war and Biden's neutral to lukewarm attitude about a peace deal were tragic, catastrophic failures of US and Ukraine leadership. The costs for that gigantic mistake will be very high. The US just passed a bill funding another $60 billion in military aid to the Ukraine after a crippling delay. The Ukraine's position is likely to remain weak until the country can no longer sustain the human and other losses of Russia's ruthless war. At the point of collapse, Ukraine will be forced to surrender under hideous terms. There will be a second 21st century genocide.

The lesson should have been clear early on. Try for peace as hard as possible. Even if talks fail or an agreement is breached, no one can accuse political leadership of at least not trying hard for a peace agreement. 

The damage has been done. It cannot be undone. An end game along the lines of what is now playing out in Gaza seems likely for the Ukrainian people.

The world desperately needs better democracies and better democratic leaders.

Deeper thinking about pro-Palestine protests, rhetoric and actual war

Some have argued that most of the backlash against alleged antisemitism coming out of recent and ongoing pro-Palestine protests is a cynical attempt by some elites to deflect attention from the ongoing slaughter of civilians in Gaza. This 12:23 video is by Palestinian poet and journalist Mohammed El-Kurd. He argues that the allegations of antisemitism are designed to distract from what the Israeli government and military are doing in Gaza. He argues that (1) alleged antisemitism is mostly words, while the killing in Gaza is entirely bullets and bombs, and (2) giving equal weight to allegedly antisemitic words and actual bullets and bombs killing civilians is absurd. From that, he argues that complaining about antisemitism is a cynical propaganda ploy to at least distract attention from the bullets and bombs Gaza war to date, if not to downplay and/or justify it. 

Looking for a debate...........

 ............ NOT just, good, lock him up, and throw away the keys.

Prison time for teen Capitol rioter who pepper-sprayed officers, brandished Confederate flag

What is there to debate, you ask?

WASHINGTON (CN) — A federal judge on Monday imposed a 30-month prison sentence on a man who brandished a Confederate flag outside the U.S. Capitol on Jan. 6, 2021, and pepper sprayed two Capitol police officers.

Isreal Easterday, who was 19 years old when he participated in the riot, faced a potential sentence of 12 years and seven months per to the Justice Department’s recommendation. 

Chief U.S. District Judge James Boasberg acknowledged the severity of Easterday’s actions and the serious injuries the two officers he sprayed suffered, but imposed a sentence five times lower than the government’s recommendation.

“The fact that you were very young and may not have fully understood what you were a part of” played a role in the Barack Obama appointee's decision, Boasberg said.

The now-23-year-old Easterday, who grew up in an Amish family in rural Kentucky and was homeschooled by his mother until he was 14, apologized for pepper-spraying the officers and said it was the “stupidest mistake” of his entire life. 

https://www.courthousenews.com/prison-time-for-teen-capitol-rioter-who-pepper-sprayed-officers-brandished-confederate-flag/

On other debate forums, LIBERALS wanted this young person sentenced longer and made comments like "good riddance to bad trash."

Being a liberal Snowflake myself, I am all about 2nd chances, especially for someone this young. Throw away the keys and you throw away his life and he will likely come out of jail a bitter person and more violent.

Check the incarceration rate for the U.S. AND then check the recidivism rate for the U.S. We are doing something wrong. 

BUT Snowflake, he pepper sprayed police officers and he is one of THOSE Trump supporters, he deserves no mercy.

SO, debate whether the judge made the right judgement or whether the judge was too lenient and this person who was 19 at the time of the offense deserves 12 years in prison. 

Rethinking the New York election fraud case

Based on opening arguments, a NYT opinion by a law professor got me to reassess the strength of the ongoing trial:

I Thought the Bragg Case Against Trump Was a Legal Embarrassment. 

Now I Think It’s a Historic Mistake.

After listening to Monday’s opening statement by prosecutors, I still think the Manhattan D.A. has made a historic mistake. Their vague allegation about “a criminal scheme to corrupt the 2016 presidential election” has me more concerned than ever about their unprecedented use of state law and their persistent avoidance of specifying an election crime or a valid theory of fraud.

A year ago, I wondered how entirely internal business records (the daily ledger, pay stubs and invoices) could be the basis of any fraud if they are not shared with anyone outside the business. I suggested that the real fraud was Mr. Trump’s filing an (allegedly) false report to the Federal Election Commission, and only federal prosecutors had jurisdiction over that filing.

A recent conversation with Jeffrey Cohen, a friend, Boston College law professor and former prosecutor, made me think that the case could turn out to be more legitimate than I had originally thought. The reason has to do with those allegedly falsified business records: Most of them were entered in early 2017, generally before Mr. Trump filed his Federal Election Commission report that summer. Mr. Trump may have foreseen an investigation into his campaign, leading to its financial records. Mr. Trump may have falsely recorded these internal records before the F.E.C. filing as consciously part of the same fraud: to create a consistent paper trail and to hide intent to violate federal election laws, or defraud the F.E.C.

In short: It’s not the crime; it’s the cover-up.

Looking at the case in this way might address concerns about state jurisdiction. In this scenario, Mr. Trump arguably intended to deceive state investigators, too. State investigators could find these inconsistencies and alert federal agencies. Prosecutors could argue that New York State agencies have an interest in detecting conspiracies to defraud federal entities; they might also have a plausible answer to significant questions about whether New York State has jurisdiction or whether this stretch of a state business filing law is pre-empted by federal law.

However, this explanation is a novel interpretation with many significant legal problems. And none of the Manhattan D.A.’s filings or today’s opening statement even hint at this approach.

Instead of a theory of defrauding state regulators, Mr. Bragg has adopted a weak theory of “election interference,” and Justice Juan Merchan described the case, in his summary of it during jury selection, as an allegation of falsifying business records “to conceal an agreement with others to unlawfully influence the 2016 election.”

As a reality check, it is legal for a candidate to pay for a nondisclosure agreement. Hush money is unseemly, but it is legal. The election law scholar Richard Hasen rightly observed, “Calling it election interference actually cheapens the term and undermines the deadly serious charges in the real election interference cases.”  

In Monday’s opening argument, the prosecutor Matthew Colangelo still evaded specifics about what was illegal about influencing an election, but then he claimed, “It was election fraud, pure and simple.” None of the relevant state or federal statutes refer to filing violations as fraud. Calling it “election fraud” is a legal and strategic mistake, exaggerating the case and setting up the jury with high expectations that the prosecutors cannot meet.

The most accurate description of this criminal case is a federal campaign finance filing violation. Without a federal violation (which the state election statute is tethered to), Mr. Bragg cannot upgrade the misdemeanor counts into felonies. Moreover, it is unclear how this case would even fulfill the misdemeanor requirement of “intent to defraud” without the federal crime.

Viewed through that analysis, the case now feels to be significantly less solid to me. What surprised me is that paying hush money like DJT did is legal. Lying to the FEC about it (the cover up) might be a federal law violation, but this analysis makes the state case look fairly weak. That casts the prosecution in a different light for me.

What baffles me is why DJT keeps lying about not making a hush money payment to Stormy Daniels when it was legal. That makes no sense. Maybe it can be explained by DJT's deranged ego and shameless contempt for inconvenient facts and truths.

As time passes and more little bits like this pop up, a troubling picture develops of deep flaws in the rule of law. Why on Earth would it be legal for a candidate to pay hush money to hide a sex scandal with intent to deceive the voters? That strikes directly into the heart of democracy and the public trust needed to make it function. People like Trump really are above the law because they can afford it.

And why isn't there a federal prosecution for DJT's lies to the FEC about the hush money payment? Is Merrick Garland really that incompetent, and/or is the federal law inadequate to the task of fending off demagogues making a run at kleptocratic dictatorship by not proscribing hush money payments to hookers before elections? What the hell else is the law Swiss cheese about? What else can demagogic kleptocrats running for office do that most normal people would think should be illegal, e.g., shoot someone in broad daylight for the sheer fun of it?