“the core violation here is, basically, that the Trump Organization logged hush money repayments improperly. The more small-scale charges like this after a long investigation seem, the more they suggest prosecutors landed on them because they tried to make a bigger case that didn’t pan out.
Does it resemble previous prosecutions? In some ways yes, in some ways no. Business records charges are common in the Manhattan district attorney’s office. The New York Times called this charge “the bread and butter” of the office’s white-collar practice, pointing out that during Bragg’s tenure of a little over a year, 29 individuals and companies were charged with such offenses before Trump. “The charge of creating false financial records is constantly brought,” Agnifilo and Eisen write.
Still, there is some dispute about how the charge is being applied in this case. Fordham law professor Jed Shugerman points out that these false records were just internal company documents, and that Bragg has not yet specifically alleged they were used to deceive anyone. Shugerman asked whether there’s ever been a conviction in such a case. Various former prosecutors in the Manhattan DA’s office have argued that they can and did file such charges based on internal documents, but it’s unclear whether the legality of that theory has been directly tested in court.”
“A new report from the American Bar Association (ABA) presents more evidence that the ubiquitous use of plea bargains distorts the justice system and puts defendants at a disadvantage. Roughly 98.3 percent of federal criminal convictions result from guilty pleas, as do roughly 95 percent of state convictions. “Some jurisdictions have not had a criminal trial in many years,” the report notes. Nor is a guilty plea an absolute assurance of guilt: 18 percent percent of documented exonerations had previously pleaded guilty, as did nearly 11 percent of defendants exonerated by DNA evidence since 1989.”
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“The “trial penalty” defendants incur when they refuse to plead guilty is reflected in the sentencing data reported by the ABA. In federal felony cases, average sentences handed down at trial are seven years longer than convictions resulting from a plea bargain. “Although a modest reduction in sentence is justified in some cases resolved through guilty pleas because a defendant accepts responsibility, sentences should not be punitively inflated simply because a defendant exercised a fundamental right,” the report argues.
Plea bargaining in many cases allows prosecutors to circumvent the defendant’s right to an attorney—particularly in misdemeanor cases and in rural areas. And even with counsel, a hastily accepted plea deal forecloses the opportunity to expose potential governmental abuse. “Challenges to police misconduct are typically resolved through pretrial litigation, but the death of the trial has also increasingly meant the death of pretrial litigation, including those hearings that would bring to light police misconduct,” the report states. “Trial and pretrial litigation are essential for holding police and other state actors accountable, and plea bargaining has eroded these systems of accountability.” Moreover, many “defendants are often denied discovery, including exculpatory evidence, before they make the decision to plead guilty.””
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“Plea bargains have a single great advantage: They increase the efficiency of the justice system. “Efficiency has a role to play in criminal law policymaking, but it should not be the primary goal of that policy,” the report counters. “Rather, the goal should be a criminal justice system where defendants are guaranteed due process, victims receive justice, and the rule of law can flourish.””
“Signed into law by Republican Gov. Ron DeSantis in April 2022, the law prohibits private employers and university professors from endorsing certain concepts related to race and other categories of identity. The statute drew lawsuits almost immediately. A number of employers and a diversity consultant challenged a provision that says private employers may not require employees to attend a training or activity that promotes any of eight listed concepts.
Chief U.S. District Judge Mark E. Walker, writing for the U.S. District Court of the Northern District of Florida, Tallahassee Division, then issued an injunction against enforcing that provision. “Normally, the First Amendment bars the state from burdening speech, while private actors may burden speech freely,” Walker wrote. “But in Florida, the First Amendment apparently bars private actors from burdening speech, while the state may burden speech freely.”
In November, Walker issued another injunction, this one blocking a similar section of the law that applies to university professors. He accused the state of essentially arguing that “professors enjoy ‘academic freedom’ so long as they express only those viewpoints of which the State approves,” a position Walker described as “positively dystopian.”
“The First Amendment does not permit the State of Florida to muzzle its university professors, impose its own orthodoxy of viewpoints, and cast us all into the dark,” he concluded.
It is this November injunction the 11th Circuit just left in place.
“Conservatives who cheer on the Florida law should consider what liberal states—or, for that matter, a Democratic-controlled Congress—could do if allowed to engage in similar regulation,” Ilya Somin, a law professor at George Mason University, warns at The Volokh Conspiracy. “The same powers that Florida uses to target ‘woke’ employer speech can just as easily be used against conservative employers.””
“Manhattan prosecutors allege that Trump concealed hush money payments by falsely labeling related transactions as legal expenses and by arranging for a tabloid publisher to bottle up the story of a woman who said she had a sexual relationship with Trump.
In doing so, the prosecutors say, Trump repeatedly violated a New York corporate record-keeping law and agreed to break campaign finance laws.”
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“The charge at the heart of the case — falsifying business records — can amount to only a misdemeanor, but it becomes a felony if the defendant falsified the records to obscure a separate crime.
The most obvious candidate for that aggravating element is the admission from Trump’s former lawyer, Michael Cohen, that he arranged a $130,000 payment to porn star Stormy Daniels in consultation with Trump and to aid Trump’s 2016 presidential campaign.
“The defendant Donald J. Trump repeatedly and fraudulently falsified New York business records to conceal criminal conduct that hid damaging information from the voting public during the 2016 presidential election,” the statement of facts says.
“The participants [in the scheme] violated election laws,” the statement continues, though it does not explicitly cite which ones. The statement also mentions Cohen’s guilty plea in 2018 to two federal campaign finance crimes. And in a press release, Bragg said Trump and others sought to conceal “attempts to violate state and federal election laws.”
The references to federal election violations are virtually certain to be the focus of pre-trial motions from Trump’s attorneys, who have contended publicly that this state-law offense cannot be piggybacked on a federal-law crime.
If defense attorneys prevail on such motions, it would not necessarily wipe out the criminal case against Trump. Instead, the case could remain as 34 misdemeanor charges. That would amount to a legal, public relations and political victory for Trump.
Such a result would further diminish the chances of Trump being jailed if found guilty. The maximum sentence on a second-degree falsifying business records charge is up to one year in prison on each count. A downgrading of the case to a misdemeanor might also aid Trump’s efforts to delay a trial.”
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“For Trump to be convicted of falsifying business records, the records at issue have to be, well, business records.
The New York law at issue requires that the falsification involve the records of “an enterprise,” and each count of the indictment claims that Trump falsified records “kept and maintained by the Trump Organization.”
The facts are more complicated. It’s true that the checks sent to Cohen, which labeled the payments as legal expenses, were issued by employees working for Trump’s business empire. But they were not charged to Trump’s businesses. Instead, the payments were made from one of Trump’s personal accounts or from a Trump family trust.
The key question, and one that is sure to feature in efforts by Trump’s lawyers to derail the case, is whether documents that happened to pass through the Trump Organization or handled by Trump Organization personnel are automatically classified as business records, even if the source of the funds was Trump’s personal accounts.”
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“Legal experts said they expect Trump’s lawyers to argue to the judge and, if necessary, a jury that wholly personal expenses that are simply handled by an accountant or other clerical personnel don’t become the “records of an enterprise” just by virtue of that process.”
“There is nothing inherently illegal about paying someone not to disclose a purported affair. But Trump is being accused of illegally plotting to falsify business records in an effort to hide the payment. Under New York law, that crime on its own is a misdemeanor, but it can be bumped up to a felony charge punishable by up to four years in prison if records were falsified with the specific intent to commit or cover up another crime. The indictment released Tuesday doesn’t specify what that second crime may be, but there are indications that Bragg may attempt to connect the payments to campaign finance violations or tax fraud.”
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“there’s generally broad agreement that Bragg appears to have ample evidence to secure conviction on the misdemeanor counts of falsifying business records. There’s serious disagreement, however, on the most important issue: Will Bragg be able to successfully tie those minor violations to a secondary crime?
Skeptics from both sides of the political spectrum say the felony portion of the case is built on shaky and untested legal reasoning that will require ironclad evidence to prove — evidence many believe Bragg likely doesn’t have. There are also major technical issues that could derail the indictment, most notably the untested question of whether a federal crime like a campaign finance violation can count as a secondary crime under New York’s state-level business records law. Some doubters add that the strength of Bragg’s case is irrelevant if the trial isn’t completed in time for the 2024 election, a prospect they say is extremely unlikely.
But others argue that the case isn’t nearly as weak as skeptics make it out to be. They say Bragg and his team, who have jurisdiction over the beating heart of the U.S. financial system, are incredibly adept at litigating complex financial issues such as this one. The lack of details about how Bragg plans to connect critical dots in the case, they add, is a sign that the district attorney is merely saving his most potent ammunition for later, not that he doesn’t have it.
Finally, some legal commentators say the indictment is so short on details and the circumstances so unprecedented that it’s impossible at this early stage to make any real judgments about how the case might play out.”
“The U.S. Sentencing Commission released proposed amendments to federal sentencing guidelines last week that would, among other things, limit judges’ ability to enhance defendants’ sentences based on conduct they were acquitted of by a jury.
It may sound bizarre and antithetical to what everyone is taught about the U.S. justice system, but defendants can be punished for crimes even when a jury finds them not guilty of the charges. At the sentencing phase of a trial, federal judges can enhance defendants’ sentences for conduct they were acquitted of if the judge decides it’s more likely than not—a lower standard of evidence than “beyond a reasonable doubt”—that the defendant committed those offenses. What this does in practice is raise defendants’ scores under the federal sentencing guidelines, leading to significantly longer prison sentences.”
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“The Sentencing Commission’s proposal would amend the federal sentencing guidelines to limit judges from considering acquitted conduct at sentencing unless the conduct was either admitted by the defendant during a guilty plea or found beyond a reasonable doubt. The sentencing guidelines are not binding, but federal judges are required to at least consider them and explain their reasoning if they deviate from them.”
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“For the past several years, bipartisan bills have been introduced in Congress to ban the use of acquitted conduct at sentencing in federal trials, but none have passed.”
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“A petition is also currently pending before the Supreme Court in another case involving acquitted conduct”
“Among other provisions, FOSTA created the new federal crime of owning, managing, or operating an “interactive computer service” with “the intent to promote or facilitate the prostitution of another person.”
In court last week, U.S. attorneys still clung to the argument that FOSTA merely targets illegal conduct, not protected speech.
The government has “essentially made a single argument, which is that FOSTA is essentially just an aiding and abetting statute, despite the language that it uses—it doesn’t use the terms and abetting—and as a result of that, it’s constitutional,” explains Greene. And last week in court, “they got a lot of pushback against that from at least two of the judges,” he says.
“In my mind, it’s not an aiding-and-abetting law. We know how to write ’em when we want to,” Harry Edwards, one of the three judges on the panel, said during the hearing. “This doesn’t look like anything that I understand to be an aiding-and-abetting law.”
“That immediately tells me the government’s got great concern that the statute, as actually written, has problems—so let’s make it something that it’s not,” Edwards continued. He characterized U.S. attorneys’ reasoning as “let’s call it aiding and abetting, and maybe we can cause the court to believe that the reach of the statute is limited because we’ve called it something that it’s not.””
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“Greene and his team argue that FOSTA violates the First Amendment “because it’s overbroad [and] can apply to a substantial amount of protected speech,” he explains. “And that’s principally because the language that it uses includes not just things that are in themselves the commission of illegal acts of sex trafficking or prostitution.” Rather, “it uses language like ‘promote or facilitate the prostitution of another person’ without being clear on what that means.”
The language of FOSTA “can be reasonably read to include protected [speech]—and not just protected speech, but speech that’s really highly important, like providing harm reduction, health and safety information to sex workers, to advocating on particular sex workers’ behalf, to advocating for decriminalization, and things like that,” Greene says.
During last week’s hearing, Judge Patricia Millett pushed back on the government’s claims that FOSTA didn’t criminalize advocating for legal prostitution.
“If someone actively promotes on their website the legalization of prostitution … how is that not [promoting prostitution]?” she asked.”
“Control of the Wisconsin state Supreme Court is on the ballot this spring, and the contest could decide the fate of abortion rights, redistricting and more in the critical swing state.
Should a more liberal-leaning jurist win the job in the April election, it would flip the balance of the state’s highest court for at least two years.”
“Trent Taylor says his cell, in a Texas psychiatric unit operated by the state’s prison system, was covered in human excrement. Feces smeared the window and streaked the ceiling. Someone had painted a shit swastika on the wall, alongside a smiley face. According to Taylor’s allegations in a federal lawsuit, there was such a thick layer of dried human dung on the floor of the cell that it made a crunching sound as he walked naked across the cell.
Taylor alleged that he was kept in this cell for four days, where he neither ate nor drank due to fears that the excrement, which was even packed inside the cell’s water faucet, would contaminate anything he consumed. Then, on the fifth day, he was moved to a bare, frigid cell with no toilet, water fountain, or bed. A clogged drain filled the new cell with choking ammonia films. With nowhere to relieve himself, Taylor held his urine for 24 hours before he could do so no longer. And then he had to sleep alone on the floor while covered in his own waste.
The Supreme Court eventually ruled 7–1 that Taylor’s lawsuit against the corrections officers who forced him to live in these conditions could move forward, and that lawsuit settled last February. But the Supreme Court had to intervene after an even more conservative court, the United States Court of Appeals for the Fifth Circuit, attempted to shut down these claims against the prison guards.
A unanimous panel of three Fifth Circuit judges held that it was unclear whether the Constitution prevents prisoners from being forced to remain in “extremely dirty cells for only six days” — although, in what counts as an act of mercy in the Fifth Circuit, the panel did concede that “prisoners couldn’t be housed in cells teeming with human waste for months on end.”
This decision, in Taylor v. Stevens, is hardly aberrant behavior by the Fifth Circuit, which oversees federal litigation arising out of Texas, Louisiana, and Mississippi. The Fifth Circuit’s Taylor decision stands out for its casual cruelty, but its disregard for law, precedent, logic, and basic human decency is ordinary behavior in this court.
Dominated by partisans and ideologues — a dozen of the court’s 17 active judgeships are held by Republican appointees, half of whom are Trump judges — the Fifth Circuit is where law goes to die. And, because the Fifth Circuit oversees federal litigation arising out of Texas, whose federal trial courts have become a pipeline for far-right legal decisions, the Fifth Circuit’s judges frequently create havoc with national consequences.
The Fifth Circuit has, in recent months, declared an entire federal agency unconstitutional and stripped another of its authority to enforce federal laws protecting investors from fraud. It permitted Texas Republicans to effectively seize control of content moderation at social media sites like Twitter, Facebook, and YouTube. Less than a year ago, the Fifth Circuit forced the Navy to deploy sailors who defied an order to take the Covid vaccine, despite the Navy’s warning that a sick service member could sideline an entire vessel or force the military to conduct a dangerous mission to extract a Navy SEAL with Covid.
As Justice Brett Kavanaugh wrote when the Supreme Court restored the military’s command over its own personnel, the Fifth Circuit’s approach wrongly inserted the courts “into the Navy’s chain of command, overriding military commanders’ professional military judgments.”
And this is just a small sample of the decisions the Fifth Circuit has handed down in 2022.”
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“while the Fifth Circuit is so extreme that its decisions are often reversed even by the Supreme Court’s current, very conservative majority, its devil-may-care approach to the law can throw much of the government into chaos, and even destabilize our relations with foreign nations, before a higher authority steps in. Worse, the Fifth Circuit’s antics could very well be a harbinger for what the entire federal judiciary will become if Republicans get to replace more justices.”
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“the Supreme Court only hears a tiny percentage of the cases decided by federal appeals courts, and it almost never hears cases brought by extraordinarily vulnerable litigants like Trent Taylor. Indeed, it hears these cases so infrequently that, when the Court decided to intervene on Taylor’s behalf, Justice Samuel Alito wrote a brief opinion complaining that Taylor’s case “which turns entirely on an interpretation of the record in one particular case, is a quintessential example of the kind that we almost never review.”
The Fifth Circuit hears a steady diet of ordinary immigration cases, which will often decide whether an individual immigrant can remain with their family in the United States or whether they must be deported to a nation they may barely know, or where they may fear for their physical safety. These cases are now heard by judges like Andrew Oldham, Trump’s sixth appointment to the Fifth Circuit, who spent much of his time both on and off the bench seeking to make federal immigration policies harsher to immigrants.
Similarly, the court hears a steady diet of employment discrimination cases.”
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“there are reforms that Congress or the Supreme Court could implement, which would diminish both the Fifth Circuit’s power and the power of litigants to channel political lawsuits to highly ideological judges. Congress, for example, may strip the Fifth Circuit of its jurisdiction over certain cases, or require certain suits to be filed in a federal court that is not located in the Fifth Circuit. It could also add seats to the court, which would then be filled by President Biden.
A less radical reform, proposed by former Fifth Circuit Judge Gregg Costa, would prevent litigants like the Texas AG’s office from handpicking judges who are likely to rule in their favor — and whose decisions are equally likely to be affirmed by the Fifth Circuit. Costa proposed having all lawsuits seeking a nationwide injunction against a federal law or policy be heard by three-judge panels, rather than a single judge chosen by the plaintiff. These panels’ decisions would then appeal directly to the Supreme Court, bypassing the Fifth Circuit (although a single Fifth Circuit judge might sit on some of these panels).
Realistically, however, systemic reforms to the problem of judge-shopping — and to the problem of a lawless court of appeals — are unlikely to happen anytime soon. The House of Representatives will soon be controlled by Republicans, who are unlikely to support legislation that reduces the power of their partisan allies on the bench. And the Supreme Court has six justices appointed by Republican presidents.
And so the Fifth Circuit will continue to hand down its decrees, confident that no one with the power to stop them is likely to do so.”