Month: June 2024

The Supreme Court’s decision last week in Garland v. Cargill checked a lot of boxes in the ongoing ideological and political warfare over the Court:

• • It involved the always controversial subject of gun control, although it was not a Second Amendment case as such. (No one argued that banning bump stocks would be unconstitutional.)
  • It featured a 6-3 split with all Republican-appointed “conservative” justices in the majority and all Democratic “liberal” appointees in dissent.
  • It dealt with an issue that Congress tried but failed to resolve by clarifying legislation.
  • It specifically addressed an executive agency’s attempted resolution of the issue in the absence of congressional action.
  • The majority relied on a strict reading of the relevant statutory text, while the dissenters relied primarily on the purposes of the statute and consequences of the decision.
  • While faithful to the statutory language, the outcome was unappealing (to say the least) as a matter of policy and common sense.
  • The decision was praised by conservative media but condemned by media on the left.

By way of background, federal law generally bans private ownership of machine guns, defined as weapons that fire multiple rounds automatically and without reloading “by a single function of the trigger.” When added to a semiautomatic rifle, a bump stock enables it to fire rounds at rates approaching those of machine guns with minimal effort by the shooter. However, the trigger must be activated for each round to fire. Before 2017, the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) did not consider a weapon equipped with a bump stock to be a machine gun.

In 2017, a shooter in Las Vegas used bump stock-equipped weapons to kill 58 people and wound another 500 or more. This horrific tragedy understandably prompted widespread outrage and calls for bump stocks to be banned. Many bills to do so were introduced in Congress but they stalled. At the urging of then President Trump, ATF subsequently reversed its prior position and determined that weapons with bump stocks were indeed machine guns. The Court overturned that ATF determination in Cargill.

Media reaction adhered to the usual ideological divide. For example, the Wall Street Journal extolled the Cargill decision as a “straightforward case of statutory interpretation” that corrected an ATF overreach that had “let Congress off the hook.” A Washington Post pundit countered: “Conservatives on the Supreme Court have decided that more Americans must die in mass shootings because they have a quibble over the word ‘function.’”  

The Cargill decision fits neither Manichean media characterization. The majority’s reading of the specific statutory language seems correct, although hardly straightforward. It takes much excruciatingly technical analysis to get there. On the other hand, the dissent seems correct in saying that a semiautomatic weapon with a bump stock is functionally equivalent to a machine gun and thus deserves the same ban.

In any event, it’s sheer demagoguery to accuse the Court of having blood on its hands for applying the law as written, no matter how technical it may be. The real culprit here is, of course, Congress for once again abdicating its responsibilities to the executive branch and the courts.

A brief concurrence by (the much maligned of late) Justice Alito captures the essence of the case:

“There can be little doubt that the Congress that enacted [the machine gun ban] would not have seen any material difference between a machinegun and a semiautomatic rifle equipped with a bump stock. But the statutory text is clear, and we must follow it.”

He concludes by in effect urging Congress to finish the task it abandoned in the wake of the 2017 Las Vegas tragedy.

The guilty verdict against Donald Trump in his New York “hush money” trial certainly conveys a sense of schadenfreude. Trump’s lifetime of playing fast and loose with the law may finally be catching up with him. No doubt some also view this conviction as a proxy for the more compelling federal criminal cases against him that are unlikely to go anywhere before the election and will surely die if he wins. And it’s gratifying to see Trump’s usual scorched earth strategy—contest everything; attack everyone; deny all, including the undeniable—crash and burn. Many experts think this strategy cost him any chance for at least a hung jury.

The case looks quite different, however, from a dispassionate legal perspective. The result may not be the utter travesty those on the right claim it is. Trump is no innocent victim; and the jury can’t be faulted for the guilty verdict it delivered under the facts, legal arguments, and judicial instructions presented to it. However, this was clearly a politically motivated, selective prosecution based on dubious charges. In essence, the prosecution sought to make a crime out of something that was not illegal. The case lived up (down?) to its widespread reputation as the weakest of the criminal cases against Trump.

Background

The key facts underlying the case are well known and almost surely accurate: Trump had a tryst with Stormy Daniels, instructed Michael Cohen to buy her silence in order to suppress politically damaging information about it, and business records were falsified to cover up the true nature of Cohen’s payments to Daniels as well as Trump’s subsequent reimbursement to Cohen for those payments. The evidence of Trump’s personal involvement in falsifying the records is less clear-cut but sufficient for the jury to find him complicit.

The genesis of the decision to bring this prosecution leaves no serious doubt that it was politically motivated. According to the New York Times, the Manhattan District Attorney’s office under former DA Cyrus Vance spent years “hunting” for a criminal case to bring against Trump, but even it passed on this one. Then Alvin Bragg, who campaigned for office as a Trump nemesis, was elected DA. A generally friendly profile of Bragg in the Times described him as “a man of unmistakable ambition who has hitched his aspirations to the pursuit of Donald J. Trump.” Bragg also initially resisted this case, which had become known as “the zombie case.” He revived it only after a prosecutor in his office resigned and went public with a letter severely criticizing Bragg for not being sufficiently aggressive in pursuing Trump.

The specific charges, described in more detail below, attest to the contrived and selective nature of the prosecution. New York prosecutors hardly ever use falsification of records as the sole grounds for a criminal case, as they did here. The election law provision prosecutors invoked to bolster their case is quite obscure and hardly ever used in any way at all. The Washington Post could find only three prosecutions under this provision over its entire history.

It would be more than naive to think that a case based on such unusual charges and with such a major investment of investigative and prosecutorial resources would have been pursued against anyone other than Trump.

Analysis of the Case

In addition to its political origins, the case rested on convoluted, highly imaginative legal theories that distorted what were relatively minor misdemeanor falsifications of records into ill-defined felonies. Remarkably, the prosecution’s theory of the case and core narrative had little to do with the actual charges.

Based on the above facts, prosecutors had solid grounds to charge Trump with misdemeanor falsification of business records under Article 175 of the New York Penal Law, which criminalizes making or causing to be made false entries in the business records of an enterprise with intent to defraud.^[1]The “intent to defraud” element is somewhat elusive. There were no apparent victims of fraud—certainly not voters since all the entries were made after the 2016 election. In fact, because the … Continue reading However, the statute of limitations for such misdemeanor charges expired long before prosecutors finally decided to resurrect the hush money case.

In order to overcome the statute of limitations problem and make the case appear more serious, prosecutors decided to charge Trump under another provision of Article 175^[2]Section 175.10, Falsifying business records in the first degree. that elevates falsification of records to a felony (with a longer limitations period) when the “intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.”

Prosecutors did not actually charge Trump with any crime beyond falsifying records. They used the “another crime” theory only to enhance the records falsification counts. It took them a long time to decide, or at least disclose, what this other crime could be. They finally identified it as section 17-152 of the New York Election Law, which provides:

     “Conspiracy to promote or prevent election. Any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor.”

Prosecutors opened the trial by describing the case as “election fraud, pure and simple.” Their apparent theory was that Trump sought to interfere in the election and defraud voters by depriving them of knowledge about his affair with Daniels, which might materially affect their vote. One pundit observed at the end of the trial that the prosecutors “did a masterly job of telling a compelling story not of faulty bookkeeping but of criminal election interference.”

There are two basic problems with this. First, Trump was not prosecuted for criminal election interference; rather, he was charged only with bookkeeping violations. Second, the “hush money” payments to Daniels at the heart of the prosecution’s theory of election fraud or interference, while perhaps unsavory, were not illegal as such.

Section 17-152 prohibits conspiracies to influence an election by unlawful means. The alleged conspiracy here was to influence the 2016 presidential election (to promote Trump) by buying Stormy Daniels’ silence. But neither the objective (silencing Daniels) nor the means to achieve it (paying her off) was unlawful. Political candidates seek to limit negative information about themselves all the time, and paying to suppress information is commonplace in politics and other contexts.

In an effort to identify something illegal in this scheme that would convert it into a prohibited section 17-152 conspiracy, prosecutors came up with three alternative “unlawful means” of accomplishing it: (1) violations of the Federal Election Campaign Act (FECA), (2) falsification of other business records, and (3) violations of tax laws. Judge Merchan incorporated all three into his jury instructions.^[3]Pages 30-34.

This is a huge stretch. None of the three constitutes a “means” to achieve the alleged conspiracy’s objective of silencing Daniels under any reasonable interpretation of that term. All were at most peripheral to the scheme or consequences of it rather than ways to make it happen.

Injecting FECA into this case raises a number of legal issues.^[4]They include, among others, whether FECA can be used in state prosecutions, whether the Daniels payments constituted a campaign contribution under FECA, and whether Judge Merchan’s instructions and … Continue reading But putting those aside, any violations of FECA’s contribution limits or reporting requirements that may have occurred played no direct role–certainly not a determinative role–in buying Daniels’ silence. The same is true of any additional bookkeeping violations. They might be part of the effort to disguise the true nature of the Daniels payments, but they played no significant role in silencing her.

Possible tax violations are the most attenuated of all. Presumably,^[5]Judge Merchan’s jury instructions did not address what the alleged tax violations (or additional bookkeeping violations) were or how they could constitute an “unlawful means” under section … Continue reading the contention here is that the effort to disguise the purpose of Trump’s repayments to Cohen  resulted in improperly attributing income to Cohen and businesses expenses to Trump. But this has no bearing whatever on the Daniels payments.

In sum, FECA, bookkeeping, or tax violations cannot reasonably be substituted as an unlawful means of effecting an election-related conspiracy for purposes of section 17-152. Their relationship to the true means of carrying out the alleged conspiracy—the Daniels payments—ranges from tangential to nonexistent.    

Finally, it’s noteworthy that since Judge Merchan told the jury they need not agree on which of the three purported “unlawful means” satisfied section 17-152, what they decided on this issue is unknown. Therefore, if an appellate court rejects any one of the three as a viable unlawful means under section 17-152, that would seem to constitute automatic grounds for reversing Trump’s conviction.

Potential Impact of the Case

While the Trump verdict rests on a shaky legal foundation and appears vulnerable to reversal on appeal, its ultimate fate will not be determined for some time—almost certainly not until after the 2024 election. Its political effect on the 2024 election is also hard to foresee at this point. 

What can be predicted with great confidence is that this case, whatever its ultimate legal outcome and impact on the election, will further debase our already fractured politics. Given the political and legally problematic nature of the case, a large segment of the American public will never accept Trump’s conviction as legitimate.^[6]Even some of the few remaining Republicans who are not Trump acolytes strongly criticized the prosecution of this case. And if Trump loses in November, the legitimacy of the election will surely be widely challenged based on it.

The pushback figures to be even more severe than what followed the 2020 election. Unlike Trump’s phony stolen election claims then, there will be a plausible basis for such claims this time around. The outrage will surely intensify all the more in the (not unlikely) event that the conviction is overturned after the election.

It’s regrettable that the far more serious federal criminal case against Trump now pending in Washington did not precede this one to trial and verdict.^[7]There are several reasons for this, but  the Justice Department deserves primary blame due to its multi-year delay in initiating the case. A guilty verdict in that case would have been more credible than Trump’s New York conviction and surely would have carried greater weight with the general public, excluding MAGA die-hards.