Trump Indictment [pdf] | Hacker News Reader

Trump Indictment [pdf]

manhattanda.org

Interesting that they chose to go for 34 separate counts of the same thing, falsifying business records in the first degree. It seems to me that the punishment for a crime should be proportional to the amount of damage done, and how many checks one wrote seems to me like it could be less important than, say, the total dollar amount, or the duration of time that the falsification(s) took place, or the number of things that were concealed. I am curious if anyone knows the different approaches that prosecutors have taken in various states over the years, what the statutory and case law says, etc. I imagine a lot of the judgment calls in these situations are left to the judge and/or jury.

Isn't it pretty normal to count several counts separately? If a murderer kills multiple people, he'll be tried for multiple murders. If you're caught speeding multiple times you'll be fined multiple times.

Trump made the deliberate decision to falsify business records again and again. Why should only one attempt be punished?

Yes, it is normal. I was talking about the method of counting. I suppose one has to pick something, and the number of checks written is as good as any other metric. I do think that it is a little disanalogous to speeding because it is the same thing being concealed each time. Also, to be clear, I was not making a definitive normative judgment. I was more pointing out the interesting nature of how what seems to me to be an ongoing act of deception gets charged, and how it conflicted somewhat with my intuitions.

I see how it can conflict, and I don't know how this kind of stuff would usually be charged. I'd be interested to hear more about why the speeding example is different for you, if you want to take the time to explain :) otherwise feel free to ignore!

> I do think that it is a little disanalogous to speeding because it is the same thing being concealed each time.

Speeding is also kind of the same thing every time, right? Like, say you speed every morning on your way to work for a month straight. Is that different from e.g. paying somebody for months at a time, and if so, how?

So when you are speeding, you are endangering people and property on the road. The amount of danger is proportional to the time you spend speeding among other things.

With the falsification of business records, the situation does not seem as clear-cut. It is wrong because it is preventing the public or other relevant parties from having access to accurate information. I don't know if one can really make a formula to calculate how much damage is done by a given falsification, but I personally do not think I would include the number of checks or (probably) the number of invoices written in that formula. The method of payment seems mostly incidental and not essential to the wrongness of the crime. (I include the number of payments as part of the method of payment.)

If this does not clear up my position, feel free to let me know. There is more I could write to flesh it out, but I don't know if that's necessary or if it'd be overkill =)

Look at it this way: the more effort you spend trying to cover up your crime, the more likely it is you're going to get away with it. Therefore, when crimes are discovered where people went to great lengths to cover them up, they must be charged more aggressively to act as a deterrent for people who aspire to spend a lot of effort falsifying business records.

I think one of the key differences is that the argument here is that each falsification is separate from the other ones.

Which differs from say the situation where somebody gets charged with Murder, Assault with a deadly weapon, Possession of a gravity knife, and Battery. That scenario it's really one act (killing somebody with a gravity knife) that becomes 4 counts. And it feels to me a bit like misjustice to charge somebody with 4 counts as opposed to the worst one.

However, if you write 10 fake checks and cash them it seems to be perfectly reasonable to charge you with 10 counts of fake check writing.

The problem is double jeopardy. There are circumstances where you might not be guilty of the worst one, but could be guilty of the lesser charge. For example, you might not be guilty of the murder, but could be guilty of all of the other charges.

If you're found not guilty, they can't re-try you on the other charges. So they charge all of the possible charges at once -- including charges that would be logically incompatible -- and let the jury decide which ones apply.

The judge has some leeway in deciding whether your punishment should be four separate charges added up, or less than that, depending on state law. They can also have you serve you sentences "concurrently", which has a kind of elegance: if you're serving four sentences for the same action, you serve all four at once, which amounts to spending as much time in jail as the maximum.

The article linked by OP is an indictment not a verdict.

The punishment for the crimes he's accused of has so far been none. If he's found guilty then a verdict will be issued with a punishment and sure that should depend on what he was convicted of.

But to claim that Trump's punishment for falsifying business records is not proportional to the amount of damage done is premature.

In general, courts would rather you do 34 claims rather than 34 lawsuits.

Apparently you can "overdo" it though: https://mastodon.social/@Popehat/110137289816793790

> Eagerly awaiting confirmation of how many counts Trump is facing so that on the podcast I can tell the story of the time Judge William Matthew Byrne, Jr. yelled at me for like 10 minutes because I brought an indictment with 21 counts.

> The punishment for the crimes he's accused of has so far been none.

For him. Other people have been sent to jail for Trump's crime, while Trump was shielded due to his position. A shield that he won in part by illegally paying off a porn star to hide that fact from the public.

Could he have avoided that just by paying this all with his own money?

The amount in question seems comparatively trivial. Why would be risk so many people, and himself, over an amount that a billionaire should have been able to find dropped between the couch cushions?

Is it just miserliness? Or is there some legal principle that made it necessary to funnel the money through his campaign?

Paying hush money to porn stars is technically a campaign contribution. The amount isn’t really the problem, just as the affair isn’t either —- it’s the fact he hid it.

He could have paid all of this with his own money in one lump sum, but then he would have had to report it. Campaign finance law is written specifically for people like Trump. If you have a lot of money and you want to run the country, fine. But we the public need to know how you are financing your campaign. We want to know what was purchased and where the money came from. That’s the ideal. Otherwise, foreign governments and corporations can bankroll a presidential campaign, and then compromise the entire country when their candidate gets elected. None of us want that.

Trump obviously couldn’t report this campaign expenditure, because it would have defeated the purpose of a hush money payment. So instead he decided to commit crimes, and those crimes could very well have made a difference in 2016 considering how close it was.

Huh. Interesting.

I'm surprised it wouldn't have been easier to pay it himself, then say, "I'm paying off this porn star to save my marriage, and is completely independent of the campaign, which is why I didn't report it."

It would have been a lie, but at least it would have had a fig leaf. Right now they're having trouble pretending that this is purely a partisan abuse, since the crime is obvious.

Of course I'm sure he and his lawyer went over all that and had their reasons. Or maybe this is all just hindsight bias.

> > Could he have avoided that just by paying this all with his own money

He should have just owned it and bragged about it.

They failed the damage containment on the real bad stuff such as what he said in the Access Hollywood tape. And it ended up actually helping him!

The prosecutor is also searching publicity because Trump is done for and he won’t be the nominee so they felt hard pressed to do this before it becomes clear to everybody otherwise they would have gotten little publicity and satisfaction out of it.

1 of the 34 is the Stormy Daniels payoff, correct?

I don't know. I assume at least one is.

Cohen was reimbursed over a year with monthly payments so that accounts for 12 of them.

If I've read this right, there are three payoffs and the 34 acts are all the times records were falsified while making those payments.

Notably, the payments were split up to hide them from regulators. A single large payment is much easier to detect than a bunch of small payments disguised as lawyer fees. It's important to punish premeditated, deliberate attempts to circumvent the law harder by charging every single instance where they did so.

This is a very informative insight; thanks for this and your other comment.

Oof this isn't good. At best they've got him on a technicality. More realistically they're testing a novel legal theory against a former President for acts that aren't against the spirit of the underlying law.

I can't believe that of all the things Trump has done this is what he gets charged for.

But wouldn't it be funny if his indictment ends up a cliche, like Capone's was?

I doubt a single judge had any sympathy for Al Capone though. Even if they got him on a technicality, they were glad to get him. His appeals failed.

Trump will take this all the way to the Supreme Court if he has to. The conservative legal establishment (Federalist Society, etc) are going to be filing amicus briefs in his favour. Decent odds the conservative majority will find the arguments of their old friends convincing, and overturn Trump's convictions. That's if it ever even gets that far.

IANAL, but I don’t think it’s possible to appeal a state case to SCOTUS.

Not directly, but you can sue the state court in federal court. The federal court can't overturn the conviction directly but it can force guidance on the state court and compel them to re-hear the case.

> force guidance on the state court and compel them to re-hear the case.

How could they enforce this? If a state jails a criminal, and his friends on a federal court tell the state to rehear the case of their friend, what’s stopping the state from saying no?

The Supremacy Clause (Article VI, clause 2) lets the federal court dictate how the state court must read the law.

If the federal court says, for example, "The law under which he was convicted is unconstitutional", then the first thing that will happen is that the criminal's lawyers will ask the state court to dismiss the suit since there's no law to be violated. And the court would grant it unless the prosecutors have some major ace up their sleeve.

The state court could just ignore it, and kick off a massive constitutional crisis. Which could well be justified, if the only reason for it was a federal court packed with friends of the criminal.

Federal courts can order someone released from state custody using habeas corpus. If the state court refuses to hold a retrial after a federal court tells them to, the federal court will order the person released. If the state prison/jail refuses to obey a federal court order, in theory the US Marshals turn up and use physical force to make the state officials free the person. Of course, that never happens, because state officials aren’t so dumb as to refuse to obey a federal court order. Also, if they did, they could end up personally facing federal criminal charges.

You can directly appeal to SCOTUS from highest court in each state. And then you can collateral appeal the conviction through habeas corpus. In practice, SCOTUS almost always denies cert on direct appeals in state criminal cases, even though it ends up hearing a small handful of them on collateral appeal-the fact you almost never succeed in getting a hearing is why some people seem to wrongly believe you can’t ever. But this is far from a normal case.

Yes you can, although only if you raise federal constitutional arguments, or other arguments based on federal law - if your only argument is that the state court got state law wrong, SCOTUS must reject it. Direct appeal is from the highest court in the state directly to SCOTUS, bypassing the rest of the federal courts. There is also indirect/collateral appeal, in which you aren’t appealing the state case, you are launching a new federal case as a habeas corpus petition or 42 USC 1983 civil suit.

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