Hi, Fediverse Peeps,

I have my weekend blog post ready.

https://terikanefield.com/trumps-first-criminal-trial-theories-of-the-case/

Because my sanity requires a bit of a break from social media, my thoughts are all going into my weekend blog posts.

The comments are off, but please feel free to let me know here if I made an error. I don't hire a proofreader (duh, right?)

(If you get the error message wait a minute and try again. If you have an idea for how to fix it other than using a cache plug in, which didn't work, let me know.)

Trump's First Criminal Trial: Theories of the Case - Teri Kanefield

This post will build on last week’s post, where I laid out the facts as we know them and offered explainers on the law. If you missed it, start here. The Theory of the Case Good advocates organize their cases around a theme or focal point called the theory of the case. Because there are […]

Teri Kanefield

@Teri_Kanefield

The theory of the “cause” ? 3rd paragraph

@Teri_Kanefield Link opened correctly the first time. I clicked on the embedded link and not the picture. TY for all you do!!
@Teri_Kanefield That library looks beautiful... I can almost smell the books. Stock photo?

@martinvermeer

Yup, stock photo. I also love it. My editor at Abrams describes my books as thoughtful, so I thought this one works.

@Teri_Kanefield
"A good stories, like any good metaphor, "
should be "A good story, like any good metaphor"
(plurality issue).

@Teri_Kanefield

One of the best things about weekends is kicking back and consuming a Teri Kanefield essay. They may not always be what you want to hear, but they never fail to contain something that you should hear.

@Teri_Kanefield
Misdemanors
(“Can Trump be found guilty of misdemanors (falsifying business records) if the jury doesn’t believe”).

Great article!

@Teri_Kanefield: Thanks for this one. Yes indeed - we certainly will be having a lot more fun with criminal law for the rest of this year anyway. Hopefully a lot longer.

Seems like something is missing in "...Trump tried to postpone paying Stormy Daniels until after the election, when he could avoid paying her because once the election <**> he didn’t care what people knew."

Would that be "... because once the election **was over** he didn't care what people knew."

@Teri_Kanefield Thx, Teri, great read as always!

A (slightly off-topic) ? for you: did you follow jury selection this past week, and if so, what did you make of it?

(I ask because I was struck by how much Team Trump focused on jurors feelings re: T, and how little on how receptive they might be to T's theory of the case...)

@RufusJCooter I didn't follow closely enough to comment. Maybe they thought that the juror's feelings about Trump is what matters most. Given that people generally either love him or hate him, that could make sense right?

@Teri_Kanefield Certainly!

On the other hand, I think that it's also possible for one to hate Trump, /and/ think that it's unseemly for the state to prosecute pols once they're out of power, or think that NY state law is so byzantine & convoluted that everyone has technically broken it at least once, so this is "selective prosecution, or (etc.)

I don't think those things, mind! But if I were Team Trump, I'd have used voir dire to float some alt theories, not just ask people how they feel re:T

@RufusJCooter

Yup. Makes sense. Again, I didn't follow it closely. I do know that most litigators just go on instinct. Jury selection is not scientific, despite lots of attempts to make it scientific.

@RufusJCooter E.g., Sandoval hearing, of which I had never heard (so I had to write its Wikipedia article). 📯 Unique to New York state –don't ask me why.

@Teri_Kanefield

@Teri_Kanefield Great article! Thanks for laying all this out in such a clear way.

The links to last week’s post appear to be for the root of the blog, so whatever is the first entry pops up you when you click (It seems that “The Mis-Information Outrage Cycle: Part 1” is currently there). It would be better to use the permalink for the specific post (which is the case when you mention last week’s post later in the post).

@wennefer

I didn't realize I did that. Will fix.

@Teri_Kanefield terrific explanation. Thanks, Teri!
@Teri_Kanefield Loved this Fiction writing = litigation   
@JumpinRudy
There's a hoary old trope that there are only nine plots. And I wouldn't be surprised if Terri had had all of them in her arsenal.

@Teri_Kanefield
@Teri_Kanefield Son: "The next time he got into trouble with his father, he said he needed a defense lawyer.)" Priceless!

@Teri_Kanefield Surprised not to see any reference to a fundamental point elucidated by Glenn Kirschner: that Trump suggested to Michael Cohen delaying payment to Stephanie Clifford with a view to stiffing her after the election (when any publicity would be irrelevant).

I believe there's written evidence of this. If so it it scuttles his side's claim that his actions were directed at saving his wife from public embarrassment and were therefore to influence the election.

@Teri_Kanefield Thank you. I look forward to reading your blog.
@Teri_Kanefield I want to thank you, in advance of reading the blog. I don't read it until Sunday or Monday & now that comments are gone (good choice BTW), I need to give thanks here. Oh, dear, that sounded a bit catholic, but I assure you I am a reformed catholic. 😜
@Teri_Kanefield for the error message: what's the error? Usually servers have a log of what happens with more details on the errors, but you need access to the server to see them, if you manage to get a hold of that, it will be easier to understand what's going on and how to fix it
@Teri_Kanefield
Love your category “Fun with Criminal Law!” 😄 It is fun, because you make it so easily comprehensible. Thank you for the time and energy you spend on writing such insightful blog posts.

@Teri_Kanefield Just read your weekend post. I have to say, your connection between fiction and litigation writing is spot on. I wish I had made those connections to students when I was teaching middle school.

Also, I like the simple comparisons you make in order to help everyone understand a legal concept. (I just feel sorry for your kids; no way they can win an argument with you 😉)

As for the trial…. My father in law was a lawyer. He once told me that once you get into a courtroom with a jury it becomes a horse race — you never know the outcome until the verdict. My hope is that Bragg has been holding on to pertinent evidence that will show TFG’s culpability beyond a reasonable doubt.

One thing, however. How can TFG say he didn’t know what he did was illegal? After all, he’s been telling everyone who will listen (for the last 8 years) that he’s a “stable genius” and knows EVERYTHING about EVERYTHING including his economists, generals, and lawyers. 🤷🏼‍♀️

Thanks for the info.

@Kim_Luxhoj

A person can be brilliant but be unfamiliar with the intricacies of complex laws.

The FECA is complex. The intricacies are common knowledge. The only reason people in 2015 might have known it was illegal to make such a payment was because John Edwards was charged with something similar.

But John Edwards was acquitted.

A person can be brilliant but not know the elements of obscure crimes.

Right?

@Teri_Kanefield Good read of the immediately available tea leaves.
@Teri_Kanefield
My friend and I have a question after reading your latest weekend blog:
If Trump did what he is alleged to have done and Bragg can prove that he did it, and what Trump did is in fact a crime under New York law, then why would Trump not knowing what he did was illegal matter?

@edythekirk

My plan right now is to answer some of these questions next week.

Actaully, I can answer that now. I answered that last week (I'm pretty sure)

It's because of the heightened mens rea for election finance crimes. Look at last week's post.

(I'll go look now to see if it's there. If not, I"ll come back and edit.)

@Teri_Kanefield I assume you know what causes the site to go down (i.e. fedi hug of death).

There are ways to fix it, but they will require something more involved than a caching plugin for WordPress.

Caching is a good strategy, but the plugin will not work well enough here, as it still goes through PHP and probably hits the database. This is too slow.

You either need microcaching on your webserver, a static site, or some CDN. All have pros and cons.

1/3

@Teri_Kanefield the cons are (roughly):

A static site would require either completely moving away from WordPress — or finding a way for it to generate static version of your site whenever you publish (I don't believe it's a solved problem).

Microcaching would require directly editing your webserver's configuration. Tricky.

CDNs become gatekeepers between you and your audience. Privacy is an issue. Plus, they also go down.

Happy to dive a bit deeper if you'd like.

2/3

@Teri_Kanefield for what it's worth, I am using a static site approach, and do not experience the fedi hug of death (but watching the logs when I post a link on here is mesmerizing).

In the past I've deployed microcaching successfully for a somewhat well known site that would get hammered with traffic and could not go static.

Personally, I stay away from CDNs, I find them too dangerous to use (in the sense of power they get over content they serve out, privacy, etc).

3/3

@Teri_Kanefield Thanks for your always insightful analysis. A minor proofreading note: In your description for January 12, 2018, you say a complaint was filed with the FCC. Did you mean the FEC?

@Teri_Kanefield

The plot to catch and kill is a conspiracy, and the act itself is a fraud upon the unknowing victim who is deceived.

@fizzily but catch and kill isn’t a crime and the predicate crime has to be a crime.

Not every conspiracy is a criminal conspiracy and not every fraud is a crime.

Your confusion, though, is understandable given that, so far, the prosecution has not put forward a clear legal theory.

@fizzily Also, in criminal law, there is a thing called the Rule of Leniency. You can look it up. Any ambiguity is construed in the favor of the defendant.

I assume that Bragg has actual evidence of a crime, and I assume it has to do with election interference, but so far he hasn't tipped his hand.

And no, asking if they are paying in cash is does not satisfy the heightened mens reas for FECA violations.

@Teri_Kanefield

Are you sure? Because fraud is a crime. I think it should go to a jury to decide.

@fizzily

A jury doesn't decide the law. A jury decides the facts.

I am sure that catch and kill is not a crime. Not every thing wrong or bad or immoral is a crime. I can cheat at a card came, and you can call it "fraud" but that doesn't make it a crime.

In a catch and kill, the publisher acquires the exclusive rights to publish and then doesn't publish.

THe prosecution has not yet revealed the predicate crime. We will know more this week.

@Teri_Kanefield

Thanks for all your thoughts and eval. I've not read the indictment. I'm surprised reading it left you unclear as to crimes. I was not happy about Pomerantz leaving. Former terrible DA Cyrus Vance doused the Enterprise Corruption/state RICO charges Pomerantz first saw for the case.

I disagree about catch & kill not being a chargeable offense in some situations. Similar to bait and switch, the deception is all.

Yes, facts to the jury. Election laws may have seemed easier.

@Teri_Kanefield

"...David Pecker, who described how he orchestrated "catch and kill" schemes to protect Trump during the 2016 election, similar to the purpose of his alleged business fraud to conceal the hush payments to adult film star Stormy Daniels."

https://www.rawstory.com/trump-tactical-disadvantage/

Trump about to be hit with 'significant tactical disadvantage' for defying judge: expert

Former President Donald Trump has boxed himself into a serious disadvantage in his Manhattan criminal trial with his constant violations of Judge Juan Merchan's orders, former federal prosecutor Ankush Khardori told CNN's Jake Tapper on Thursday.This comes after Trump spoke about the first witness a...

Raw Story - Celebrating 20 Years of Independent Journalism