New York prosecutors are leaning on Cohen's credibility more than expected; Trump uses surrogates to get around the gag order; Messrs. Cuellar, Menendez, Bannon and Giuliani are all in serious trouble
Does congress have to send you witness fees when they subpoena you? What if congress issues me a subpoena and I don’t want to spend the money to travel to DC? Is that willful?
Regarding findings of defamation, does liability (and potential violation of an injunction) attach to statements of the form "I was found liable for defamation but that court verdict was wrong because the claims were truthful"? I presume it does and I find that troubling.
It seems to me that the ability to say a court got it wrong and you disagree is a fundamental freedom in a free society and the admission that the court found the other way should effectively insulate the speaker from liability on the same grounds that statements of opinion based on disclosed facts do. After all, now the listener is fully aware that the court held the factual claim to be false and is free to assign that whatever weight they feel is appropriate.
Ultimately, the people are supposed to oversee the justice system and for that to happen it needs to be possible for people to complain about unjust and wrong verdicts. Especially if NYT v Sullivan goes away you could imagine some rogue state court in TX essentially reaching some ridiculous finding of fact but any criticism of that result as incorrect would assert the underlying claim as having been true and thus create liability.
I guess you might have an argument if the defendant had consistently claimed throughout the court proceedings that he was telling the truth. But in this particular case, as Ken said in this episode, Giuliani stipulated to the court that his claims about the elections workers were lies. So: he admitted he was lying, was found guilty of defamation, and yet he continues to repeat the same lies. You can hardly claim the court got something wrong when you already copped to the finding.
I need to know more about the cross-country prisoner transport buses. This is fascinating. Do you get a book? How often are there bathroom breaks? Do prisoners get breaks to sleep in a bed, or do they just sleep sitting up for weeks at a time? I'm going to go look for articles about this.
It looks like the defense has said that it may not call any witnesses. In many courts, it is standard procedure for a court to ask a non-testifying defendant on the record outside the presence of the jury whether they are voluntarily waiving their right to testify. If this isn't done in this case, there is a 100% chance that Trump will claim he was not allowed to testify if he is convicted (and maybe even before the verdict). He'll blame his lawyers or the court (probably both) and say that he wanted to tell the "truth" to the jury. Judge Mershon should explicitly inform Trump on the record that he has an absolute right to testify and make Trump answer himself whether he wants to take the stand.
From the offhanded way you mentioned Menendez's campaign paying for his expensive jury consultant, I infer that it wasn't illegal for the campaign to pay for that. But I find this very surprising. Are jury consultants considered a legitimate campaign expense? Or is it just that if you donate to Bob Menendez specifically it's presumed to be obvious that your money might go to defending against bribery charges again?
Watching Johnson at the Courthouse it dawned on me. He's not going to be Speaker when the new Congress is sworn in...and how does one save face? Becoming Vice President and winning back the evangelical voters that the Orange Menace has lost in the last couple years.
It's the Pence playbook from 2016 and he clearly doesn't have to be sold on it. I'm calling it my dark horse pick!
Did Trump commit attempted bribery when he offered oil executives specific policy changes in exchange for $1 billion dollars in campaign contributions? Or has the Supreme Court gutted bribery so much that even this doesn't rise to that seemingly unreachable bar?
The headline was outrageous, the actual story less so. Trump was specifically giving a pitch for campaign contributions, and this was his message: "I have always sided with the oil industry, and the changes I have already proposed will save you billions. If you put $1 billion into my campaign, it will be a sound investment." A little crude for a campaign pitch, but illegal?
At the end of the show there was speculation as to why Rudy would keep running his mouth. Someone speculated that it was because he already filed for BK so what the heck. My understanding is that BK doesn't wipe out post petition debts so I think the likely reason is that Rudy is trying to run the "attack, attack, attack no matter" what playbook and is just bad at it.
I suppose I should have said that he is insolvent rather than that he is bankrupt. My point is not that he can get these claims discharged; it's that there are already way more claims against him than he can satisfy, and the creation of more isn't likely to impact his standard of living.
1. How can NY enhance Trump’s charge to a felony (conceal or further other crimes) and the “other crime” in question be campaign finance? That’s 1) federal not NY state charge and 2) never been even charged, much less proven? It seems a flaw to rely on the enhancing charge element when you don’t even have an indictment, much less conviction. Who’s to say that what he did is even a campaign finance violation?
2. With the Cuellar charges, if they take their “it was legit Consulting” to trial, would that be a kind of affirmative defense that would require them to testify and more or less prove they did so or would they be able to poke holes in the prosecution’s case and argue beyond a reasonable doubt was not met? Given we don’t know much at this time and understanding that, I’m curious how you’d defend Cuellar here if you like taking a stab at it (hopefully enough time has passed after OJs passing so “taking a stab at it” can be used again and not seem disrespectful).
1) "Section 17-152 of the state’s election code makes it a misdemeanor for two or more people to “conspire to promote or prevent the election of any person to a public office by unlawful means.” Trump is not being charged under that statute, which apparently has been used only a few times in cases related to state or local elections, though it is a key factor in his case."
The jury is the finder of fact so it's not necessary he's charged or convicted of this or a federal law for the jury to find the fact has been established.
2) The burden of proof never shifts to the defendant. They don't have to prove "legitimate consulting" to assert it as a defense. They can claim it all they want, and the jury can give that whatever credibility they want.
As to number 2, the defense never has the burden of proof legally, but practically they do in affirmative defenses. I’m most familiar with self defense defenses, where if you claim SD then you have to almost always take the stand and demonstrate your self defense claim is legit. You have a burden to meet - legitimate self defense. Because a self defense claim you’re mostly admitting to the charge (whatever it is), say, murder. You admit to killing the person so the prosecution doesn’t have to prove any of those elements. And it’s up to the defense to demonstrate that it was in fact self defense. I’m seeing some parallels with Cuellar and Mendez charges in their defenses will require them to show it was in fact legit consulting. I don’t think I explained it well before. You’re right the burden never shifts to the defense in a legal way, but in practice certain defenses demand their side affirmatively demonstrate that they are correct in their interpretation
Listening to Whatsie this afternoon - oh, Harry Litman - when he described the way they dealt with his past Errors of His Ways, it sounded like a mini morality play. MICHAEL COHEN AS MARLEY'S GHOST, WITH SPECIAL APPEARANCE BY DJT IN "AS THE SCROOGE TURNS!"
Can the prosecutor use the fact that Melania never showed up to a single day of court (assuming the trend continues) in their closing statement to support the claim that Trump and Melania don’t care about each other.
I don't know the NY rules specifically, but in many (most? all?) jurisdictions, the answer to this would be no. You're supposed to limit your closing argument to the evidence, and the presence or absence of people in court is not evidence.
A curious thing reported in the last day or so is that T was seen marking up talking points by a reporter in the courtroom that looks to have been talking points for the cast of House Cats.
It sounds like it would be a whole other evidentiary hearing to get to the bottom of it.
At least one report by peeps in the room that the paradery was distracting the jury.
Lost in this is that Trump is the center of a cult of personality. Nobody is interested in what his lackeys say. If they say, "Here is what Trump told me to say…", they would get some attention and we would have an issue. If you want people to stop saying that Michael Cohen is a liar, you will have to lock up all the anchors on Fox News, OANN, Newsmax, etc.
Given all the coordinated discussion of "surrogates" by them and Trump, I was wondering if the "nyah nyah, I'm not gagged" could possibly backfire given the terms of T's gag... (can't get others to do attacks on the witnesses, staff, jury. Tommy the Tubes did a Mugwump dogwhistle that seemed aimed at the jury). Can't blame a girl for wishcasting, right?
What happened to originalism and textualism? Gone so soon? A press conference in NY is not a "speech or debate before either house". A phone call from Sen. Graham's office to the Georgia Secretary of State's office is also not a "speech or debate before either house". The words "legislative duties" are not in the constitution.
Don't think I said any of that. Just that one of the steps to qualify for the protection is fulfilled by being a senator. Not all of the steps of course.
Sorry. Not a criticism of what you wrote. More of a snarky commentary on Senators demanding the protection of the speech and debate clause, which says "before either house" not "legislative duties" while simultaneously wanting textualism and originalism from the court.
Less than you might think. Adam Clayton Powell slandered a woman on the floor of the House and got off because of the Speech and Debate clause. He repeated it on one of the Sunday morning news shows (Meet the Press, Fave the Nation, I don’t recall which) and was found guilty of slander.
The senators are not relying on any protection because the gag order does not apply to them. Trump could be in violation of the gag order if he directed them to make certain statements, but a senator’s own statement that he spoke to get around Trump being gagged is not a statement that Trump directed him to say anything.
Does congress have to send you witness fees when they subpoena you? What if congress issues me a subpoena and I don’t want to spend the money to travel to DC? Is that willful?
I suspect you could respond and plead hardship but realistically the attorneys fees involved will hugely outweigh the cost of a plane ticket.
If you actually can't afford a flight and hotel, I suspect congress will be able to get you there somehow.
Is he a better witness than he is a lawyer?
No transcript yet? The Google doc says there's a transcript in 6 Substack, but I don't see one at all.
Regarding findings of defamation, does liability (and potential violation of an injunction) attach to statements of the form "I was found liable for defamation but that court verdict was wrong because the claims were truthful"? I presume it does and I find that troubling.
It seems to me that the ability to say a court got it wrong and you disagree is a fundamental freedom in a free society and the admission that the court found the other way should effectively insulate the speaker from liability on the same grounds that statements of opinion based on disclosed facts do. After all, now the listener is fully aware that the court held the factual claim to be false and is free to assign that whatever weight they feel is appropriate.
Ultimately, the people are supposed to oversee the justice system and for that to happen it needs to be possible for people to complain about unjust and wrong verdicts. Especially if NYT v Sullivan goes away you could imagine some rogue state court in TX essentially reaching some ridiculous finding of fact but any criticism of that result as incorrect would assert the underlying claim as having been true and thus create liability.
I guess you might have an argument if the defendant had consistently claimed throughout the court proceedings that he was telling the truth. But in this particular case, as Ken said in this episode, Giuliani stipulated to the court that his claims about the elections workers were lies. So: he admitted he was lying, was found guilty of defamation, and yet he continues to repeat the same lies. You can hardly claim the court got something wrong when you already copped to the finding.
I need to know more about the cross-country prisoner transport buses. This is fascinating. Do you get a book? How often are there bathroom breaks? Do prisoners get breaks to sleep in a bed, or do they just sleep sitting up for weeks at a time? I'm going to go look for articles about this.
Update: Of course the Marshall Project has reporting on this. https://www.themarshallproject.org/2019/08/15/the-federal-prisoner-transit-system-aka-diesel-therapy-is-hell
It looks like the defense has said that it may not call any witnesses. In many courts, it is standard procedure for a court to ask a non-testifying defendant on the record outside the presence of the jury whether they are voluntarily waiving their right to testify. If this isn't done in this case, there is a 100% chance that Trump will claim he was not allowed to testify if he is convicted (and maybe even before the verdict). He'll blame his lawyers or the court (probably both) and say that he wanted to tell the "truth" to the jury. Judge Mershon should explicitly inform Trump on the record that he has an absolute right to testify and make Trump answer himself whether he wants to take the stand.
From the offhanded way you mentioned Menendez's campaign paying for his expensive jury consultant, I infer that it wasn't illegal for the campaign to pay for that. But I find this very surprising. Are jury consultants considered a legitimate campaign expense? Or is it just that if you donate to Bob Menendez specifically it's presumed to be obvious that your money might go to defending against bribery charges again?
Did Michael Cohen waive the attorney-client privilege with Robert Costello?
Ken, is it a good idea to loudly and publicly dodge service while mocking the Justice Department in social media?
Watching Johnson at the Courthouse it dawned on me. He's not going to be Speaker when the new Congress is sworn in...and how does one save face? Becoming Vice President and winning back the evangelical voters that the Orange Menace has lost in the last couple years.
It's the Pence playbook from 2016 and he clearly doesn't have to be sold on it. I'm calling it my dark horse pick!
Did Trump commit attempted bribery when he offered oil executives specific policy changes in exchange for $1 billion dollars in campaign contributions? Or has the Supreme Court gutted bribery so much that even this doesn't rise to that seemingly unreachable bar?
The headline was outrageous, the actual story less so. Trump was specifically giving a pitch for campaign contributions, and this was his message: "I have always sided with the oil industry, and the changes I have already proposed will save you billions. If you put $1 billion into my campaign, it will be a sound investment." A little crude for a campaign pitch, but illegal?
At the end of the show there was speculation as to why Rudy would keep running his mouth. Someone speculated that it was because he already filed for BK so what the heck. My understanding is that BK doesn't wipe out post petition debts so I think the likely reason is that Rudy is trying to run the "attack, attack, attack no matter" what playbook and is just bad at it.
I suppose I should have said that he is insolvent rather than that he is bankrupt. My point is not that he can get these claims discharged; it's that there are already way more claims against him than he can satisfy, and the creation of more isn't likely to impact his standard of living.
Questions -
1. How can NY enhance Trump’s charge to a felony (conceal or further other crimes) and the “other crime” in question be campaign finance? That’s 1) federal not NY state charge and 2) never been even charged, much less proven? It seems a flaw to rely on the enhancing charge element when you don’t even have an indictment, much less conviction. Who’s to say that what he did is even a campaign finance violation?
2. With the Cuellar charges, if they take their “it was legit Consulting” to trial, would that be a kind of affirmative defense that would require them to testify and more or less prove they did so or would they be able to poke holes in the prosecution’s case and argue beyond a reasonable doubt was not met? Given we don’t know much at this time and understanding that, I’m curious how you’d defend Cuellar here if you like taking a stab at it (hopefully enough time has passed after OJs passing so “taking a stab at it” can be used again and not seem disrespectful).
IANAL but:
1) "Section 17-152 of the state’s election code makes it a misdemeanor for two or more people to “conspire to promote or prevent the election of any person to a public office by unlawful means.” Trump is not being charged under that statute, which apparently has been used only a few times in cases related to state or local elections, though it is a key factor in his case."
The jury is the finder of fact so it's not necessary he's charged or convicted of this or a federal law for the jury to find the fact has been established.
https://www.msn.com/en-us/news/other/this-obscure-n-y-election-law-is-at-the-heart-of-trump-s-hush-money-trial/ar-BB1lTaoD
2) The burden of proof never shifts to the defendant. They don't have to prove "legitimate consulting" to assert it as a defense. They can claim it all they want, and the jury can give that whatever credibility they want.
Interesting. I’ll look that up
As to number 2, the defense never has the burden of proof legally, but practically they do in affirmative defenses. I’m most familiar with self defense defenses, where if you claim SD then you have to almost always take the stand and demonstrate your self defense claim is legit. You have a burden to meet - legitimate self defense. Because a self defense claim you’re mostly admitting to the charge (whatever it is), say, murder. You admit to killing the person so the prosecution doesn’t have to prove any of those elements. And it’s up to the defense to demonstrate that it was in fact self defense. I’m seeing some parallels with Cuellar and Mendez charges in their defenses will require them to show it was in fact legit consulting. I don’t think I explained it well before. You’re right the burden never shifts to the defense in a legal way, but in practice certain defenses demand their side affirmatively demonstrate that they are correct in their interpretation
Listening to Whatsie this afternoon - oh, Harry Litman - when he described the way they dealt with his past Errors of His Ways, it sounded like a mini morality play. MICHAEL COHEN AS MARLEY'S GHOST, WITH SPECIAL APPEARANCE BY DJT IN "AS THE SCROOGE TURNS!"
Can the prosecutor use the fact that Melania never showed up to a single day of court (assuming the trend continues) in their closing statement to support the claim that Trump and Melania don’t care about each other.
I don't know the NY rules specifically, but in many (most? all?) jurisdictions, the answer to this would be no. You're supposed to limit your closing argument to the evidence, and the presence or absence of people in court is not evidence.
If one of the senators came out and said they were there to get around the gag order would that be a violation of the gag order? https://www.threads.net/@aaron.rupar/post/C69oX0Ug94q
That doesn't look to me like a statement that Trump directed him.
A curious thing reported in the last day or so is that T was seen marking up talking points by a reporter in the courtroom that looks to have been talking points for the cast of House Cats.
It sounds like it would be a whole other evidentiary hearing to get to the bottom of it.
At least one report by peeps in the room that the paradery was distracting the jury.
Lost in this is that Trump is the center of a cult of personality. Nobody is interested in what his lackeys say. If they say, "Here is what Trump told me to say…", they would get some attention and we would have an issue. If you want people to stop saying that Michael Cohen is a liar, you will have to lock up all the anchors on Fox News, OANN, Newsmax, etc.
Given all the coordinated discussion of "surrogates" by them and Trump, I was wondering if the "nyah nyah, I'm not gagged" could possibly backfire given the terms of T's gag... (can't get others to do attacks on the witnesses, staff, jury. Tommy the Tubes did a Mugwump dogwhistle that seemed aimed at the jury). Can't blame a girl for wishcasting, right?
Being senators, they have some protection via the speech and debate clause.
What happened to originalism and textualism? Gone so soon? A press conference in NY is not a "speech or debate before either house". A phone call from Sen. Graham's office to the Georgia Secretary of State's office is also not a "speech or debate before either house". The words "legislative duties" are not in the constitution.
Don't think I said any of that. Just that one of the steps to qualify for the protection is fulfilled by being a senator. Not all of the steps of course.
Sorry. Not a criticism of what you wrote. More of a snarky commentary on Senators demanding the protection of the speech and debate clause, which says "before either house" not "legislative duties" while simultaneously wanting textualism and originalism from the court.
Less than you might think. Adam Clayton Powell slandered a woman on the floor of the House and got off because of the Speech and Debate clause. He repeated it on one of the Sunday morning news shows (Meet the Press, Fave the Nation, I don’t recall which) and was found guilty of slander.
Bob
The senators are not relying on any protection because the gag order does not apply to them. Trump could be in violation of the gag order if he directed them to make certain statements, but a senator’s own statement that he spoke to get around Trump being gagged is not a statement that Trump directed him to say anything.
Appreciate that distinction. Thanks.
It does prevent him from instructing one of his flunkies to "Truth this out"....
Well, in that case his problem seems to have been that it was less than he thought.