A Mumbling Indictment

Still missing: the goods

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Sarah and David are back for a Wednesday (!) episode to give the people what they want: a review of Trump’s indictment. The verdict? Not great. Also:

  • A Twitter user convicted over trolling Hillary Clinton supporters
  • SCOTUS back-scratching?
  • The Justices are taking their time
  • Justice Ketanji Brown Jackson’s praiseworthy approach to equity

Show Notes:

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Comments (74)
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  1. Avatar photo
    Rbell96630

    I wasn't going to write because I thought someone else would have already done so, but....
    Daniel Patrick Frey, an assistant district attorney in LA, Calif, was nicknamed Patterico by his parents when young, and he blogs under the moniker. He has for years had a blog at https://patterico.com/ which I have read and enjoyed greatly. He has also recently started a substack at https://patterico.substack.com/ , which contains both paid and unpaid posts. He gives the pronunciation of his nickname on the homepage of his blog as follows: Pronounced "Patter-EE-koh" Best wishes.

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  2. Ronald Payne

    I am a new member but have listened to the podcast for a while now. From what I know of the Douglass Mackey case, I have to disagree with both David and Sarah. To me it is obvious that this guy was making a joke. Everyone knows that you can’t vote by text in the US and I bet anything that the 4,900 people that texted the phone number knew it too and were just texting to say things like, “Screw you,” or “The joke is on you now that you are being inundated with text messages.”

    Sarah implying that black voters are too ignorant to know that they can’t vote by text message is insulting.

    This is how the story is being portrayed on independent news like Breaking Points which I trust as much as I trust The Dispatch hence my concern. David has been a strong defender of the First Amendment devoting much of his legal career to that which I profoundly respect so this stance would seemingly fly in the face of all of that. Political jokes are the sine qua non of free speech as free speech is meant to most strongly protect political speech.

    Anyway, I’ll get off my soapbox now. To me a political joke on the Internet deserves more protection than Nazis physically matching through a Jewish town even, to use an example this pod likes.

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    1. Joe1776

      Yes it is obviously a joke. Sarah and David are literally chuckling as they read the meme at 36:30. David says this is little different then a meme by talking about a completely different situation. Not at all similar. I mean the idea that people would follow a meme they see on the internet versus, a guy showing up and announcing to everyone that they can vote a certain way with out any of the funny parts of meme.

      Also there is a bit of a misrepresentation of the case when Sarah says 4900 people tried to vote that way. There was no evidence that 4900 people tried to vote that way. They presented no evidence that even a single person tried to vote that way. Mainly people that were following him (conservatives who find that sort of thing funny) would have texted him and they were likely just curious what would happen. Many texted that number saying negative things about Hillary. Not one person said they tried to vote for Hillary that way.

      The message is clear: If you don't follow the party line you may find yourself in prison.

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  3. Jheinzmannesq

    NY criminal defense lawyer here.

    Respectfully, people are getting a little mixed up on the stacking issue. The first mix up seems finally corrected. The notion that Trump had to be the perpetrator of the crime intended to be covered up by the filing of a false business record is thankfully no longer discussed. But the idea that the covered up crime had to be a New York crime seems wrong. While it is true that New York has no jurisdiction over a federal crime, or an out of state crime, the intent element is an intent directly related to a New York act. So, by way of example, if one falsifies a New York record, let's say a receipt for a purchase in NYC, for the purpose of establishing an alibi for a murder they committed in New Jersey, they have surely committed the falsifying crime with the requisite intent to cover up another crime for which NY has no jurisdiction. I'm not sure there is a distinction with a federal crime but can't see a reason why not. New York law has differentiations between a crime and a crime "under this chapter" meaning a penal law crime in their sentencing statutes so one could persuasively argue that a crime has a broader definition than a penal law crime, or a NY non-penal law crime, and can encompass crimes outside the jurisdiction. Hypothetically, one could read the statute as broadly as making a false entry in New York to cover up an art theft in Europe as legally sufficient even though the European crime is outside the jurisdiction.

    Further, preemption issues aside (and those may be significant), the New York election law violation contains even broader language. It punishes those who conspire to promote or prevent by unlawful means. Much has been made about how the unlawful means means a circular argument relating back to the false business records, and while that would be problematic, I think it misses the argument that "unlawful means" is not limited to criminally unlawful means. Many things are civilly unlawful but not criminally unlawful. Thus, the New York election statute is sufficiently broad enough to encompass a range of conduct short of criminal, but still unlawful.

    I am intrigued by the argument that the Trump trust, the entity that made the payments, might not be an "enterprise" that is covered by the statute. But there again, the definition of enterprise is very broad. Can a trust be an enterprise? If the trust is exclusively personal, i.e. it only acts in a way consistent with one's day to day personal receipts and expenses, might it not be an enterprise? If the trust engages in mixed personal and business activity, does that matter? This is where the lawyers might really earn their fees. That said, we can't get myopic and limit the false entries to the Trump trust. If Trump caused someone else to make a false entry in their business records of something clearly an enterprise, perhaps Cohen law firm financial records, that might be covered by the "makes or causes" language of the statute.

    I'll add that this particular DA's office does (over?) zealously prosecute election cases. I have first hand knowledge of a prosecution for the attempted (and unsuccessful) procurement of a few thousand dollars in matching funds that resulted in a felony conviction and brief jail sentence for a first time offender. While I believe that case was over-prosecuted, it is standard with this office when dealing with public corruption cases.

    So I come down on the side of the Trump case likely being legally sufficient to survive a motion to dismiss, and probably legally sufficient to get to a jury, while at the same time believing it is politically motivated, an excess of prosecutorial zeal, and an abuse of prosecutorial discretion.Show less

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  4. Gsalas72

    Hey quick question for the next episode (I have not a clue how to ask a question, so here's to that - hope you get this).
    How did the plaintiffs get standing on the Mifeprestone (spelling?) ruling by judge Kacsmaryk (spelling, again?)?
    Also, will there be changes to stop forum shopping?

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  5. Helbock

    Al Bragg is a 13% idiot who cannot write worth a da-nn, He is a Soros affirmative action nit wit who is tearing America apart. How long are we going to tolerate this BS.

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  6. Avatar photo
    Patterico

    Patter -EE-koh. DRJ (longtime commenter at my blog) had it right.

    I see the indictment pretty differently from y’all, which is unusual for me (and frankly makes me question whether I’m right!). Any way we slice the law, though, I think it will be interesting to see what Bragg really has.

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    1. Avatar photocircle-angle-nib
      Sarah Isgur vertical-nib Author

      Oh nooooo!!!! Good to know! I’m not sure were as far apart as you think we are. The big difference is that I think 90% of the statement of fact (AMI, doorman, etc) only goes to the federal election law question and I think the standard for that (solely, primarily, partial purpose) is higher than you do.

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      1. Avatar photo
        Patterico

        By the way, the reason I adopted the name Patterico when I started a blog (some 20 years ago) was because it was a name my late dad would sometimes call me in fun when I was a kid. My name is Patrick but he would sometimes call me "Patterico" to just kind of mangle up the name. It wasn't a regular nickname or anything, but it was a memory I happened to have when I started a blog on Blogspot (look it up) and was prompted to enter some name to call it. I thought about it for like five seconds, typed it in, and have used it online ever since.

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        1. Avatar photo
          Patterico

          (Not saying look up my blog. I am saying look up what Blogspot is because it's probably before your time.)

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      2. Avatar photo
        Patterico

        I certainly don't think the Bradley Smith argument is obviously wrong. It might win the day, if Trump is ever convicted and this goes up on appeal. I think people could have an interesting discussion about his argument and how far it really goes.

        Too bad they didn't have better facts on John Edwards; if they had, maybe it would have gone up on appeal and we would have gotten clarity on all this years ago.

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  7. Emily.C.Leslie

    I'd be interested to know whether Sarah and David think of this take (tweeted by Megan Stevenson, JD/PhD + faculty at UVA Law): "Racking up a series of obscure charges with decades of prison time just to 'get' someone the prosecutor wants to get is EXACTLY HOW THE CRIMINAL LEGAL SYSTEM WORKS. Except usually this is used against poor people, and POC." I share Sarah's view that no one should be above the law OR below the law, but I fear that functionally many people are below the law in our current system and it doesn't inspire nearly as much commentary or outrage as it should because they lack the visibility and resources to draw attention to it. I wish some of the vast sea of scrutiny that Trump's case is getting could spill over to be applied to some of the thousands of people who, unlike him, must rely on overburdened public defenders.

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    1. Avatar photocircle-angle-nib
      Sarah Isgur vertical-nib Author

      I’ve tried to address the difference. The vast majority of people you’re talking about are overcharged on the facts. But the problem with this case is that it was overcharged on the law. That’s true for very few cases and the ones that are tend to end up at the Supreme Court.

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      1. Emily.C.Leslie

        That seems like an important distinction. I guess I'm wondering how you (or anyone) knows how often being overcharged on the law happens, given that there are SO MANY cases, and what passes for adequate representation can be pretty jaw-droppingly bad (I'm blaming caseloads here, not trying to make a blanket statement that public defenders are incompetent). If you could take a look at a random sample of 10,000 cases, is it possible that more of them would be overcharged on the law than you thought? I'm glad cases in this category make it to the Supreme Court, but it seems to me that we don't have enough data to know if the ones that make it that far are most of the total or not. Like, if I told you that I catch most of the people who cheat in my class, should you believe me? I catch some, and I believe many students won't cheat, but I don't know for sure how many actually do.

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        1. Avatar photocircle-angle-nib
          Sarah Isgur vertical-nib Author

          Here’s my best explanation of the reason: there an endless number of wars fact patterns can vary. So you’re right that we have no real way to know how many cases are overcharged on the facts. But there’s only so many laws. So even if 95% of defendants have crappy representation, most criminal defendants are charged with the same handful of laws and all it takes is one lawyer to appeal the case to figure out what the law actually prohibits. And attorneys have lots of incentive to take those cases—even for free often—bc their fun and they make for high profile cases that bolster one’s reputation. So I’m not saying none get through the cracks, I’m sure they do if there’s esoteric laws that aren’t used often and tend to target petty criminals that tend to have overworked lawyers. But just look at how many cases the Supreme Court had taken on 922g or the first step act and it doesn’t matter that lots of people were charged with it, it just matters that one appeals.

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          1. Emily.C.Leslie

            Thanks for the insight!

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  8. Avatar photo
    David.Cann1

    Listening to the “strict scrutiny” podcast (recommended by David Lat) which is *very* positive on the indictment. Hard to believe it’s the same case being discussed.

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    1. Avatar photo
      David.Cann1

      Contra Sarah’s analysis of the case documents as sloppy, the Strict Scrutiny folks described them as very well documented and as convincing in terms of supporting the needs of the case.

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      1. Avatar photocircle-angle-nib
        Sarah Isgur vertical-nib Author

        And they’re entitled to their opinion, for sure. But I’d say that it’s notable that our legal analysis comes out differently from our political preference. And I’d caution anyone to beware legal analysis that always matches their political priors. Doesn’t mean we’re right and they’re wrong tho!

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        1. Avatar photo
          David.Cann1

          Thanks. And as for a name for Popcorn, my grandson (nearly 1-1/2 years old now) is named Callum, which I had never heard before, but I have to admit it’s growing on me!

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          1. Avatar photocircle-angle-nib
            Sarah Isgur vertical-nib Author

            Now that’s pretty funny bc that name is actually on our list. I like it from my Irish side but trying to convince Scott!

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    This comment has been deleted

  10. Jeff.Oster03

    When David said "complexity is a subsidy" at minute 56, many miles away, Jonah Goldberg sat up in his chair, and looked around in silence. "Someone has said it," he thought.

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    1. Avatar photo
      PaulH

      Complexity isn't really a "subsidy" -- that is a confusing way of looking at it. Complexity is a tax -- it imposes burdens on everyone. But it is effectively a regressive tax because those who are connected or come from the right background etc. are much better able to bear the burden than those who aren't.

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