(C) Daily Kos This story was originally published by Daily Kos and is unaltered. . . . . . . . . . . How does it get bumped up to a felony? Andrew Weissmann explains [1] ['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.', 'Backgroundurl Avatar_Large', 'Nickname', 'Joined', 'Created_At', 'Story Count', 'N_Stories', 'Comment Count', 'N_Comments', 'Popular Tags'] Date: 2023-04-05 I believe that Manhattan District Attorney Alvin Bragg has a winning case. The MAGA Republicans which now includes almost all republicans in Congress and most elected republicans, generally, are going to oppose any effort to hold Donald Trump accountable regardless of Trump’s guilt and the validity of the charges. They have an invincible ignorance and, therefore, there is no point in trying to educate them. On the other hand, some prosecutors and others who are not fans of Donald Trump are skeptical of this case. Some of them may have less than pure motives. However, those prosecutors and others who do oppose or dislike Trump and yet have sincere questions that are not entirely without merit about the appropriateness of charging the former president generally are mostly concerned about how the books and records misdemeanor is being bumped up to a felony in this case. They are concerned about the appearance of charging Donald Trump with only a misdemeanor; therefore, they want reassurance that the crime that is used to bump up the books and records misdemeanor to a felony is clear and without serious legal and/or factual infirmities. Furthermore, if election law is in view as the crime that is being used to bump up the books and records misdemeanor, then what state statute is going to be relied upon? Andrew Weissmann says, “The first thing to know is that the statute in New York that says you can bump this up to a felony requires that you have an intent to commit some other crime, you don’t have to actually commit that crime. So, that’s why you wouldn’t necessarily need to charge it and that’s something that Alvin Bragg said. Also, if one of the crimes that you’re thinking of can be used to bump it up is a federal crime, then that’s not something that you could charge in state court anyway. Now this really goes to Chris’s question in the last segment where he sort of said, ‘Isn’t this really still a tenuous case? Isn’t there a problem because this is really a legal issue in this case than a factual issue and this is where I actually was impressed in terms of what was charged here because there’s so many different ways in which the DA has laid out how he can get to a felony. He suggested in his oral remarks that one way is the federal campaign laws, another way is the state campaign laws, a third way is he talked about AMI issuing false statements and that was in furtherance of those false statements, and a fourth way was tax charges, exactly what you had laid out, Rachel, in terms of the scheme to have Michael Cohen commit tax fraud which by the way is exactly the kind of thing that was alleged in the Trump Organization Weisselberg case that just resulted in convictions in November. So those give the DA a lot of room so he even if there is an attack on one or two of them, particularly the state crimes of tax fraud and the AMI false statements seem very solid, it seems very hard to imagine a motion to dismiss that’s going to knock out all of that and reduce all of the charges to misdemeanors. “ Here’s the state law that was cited by Manhattan District Attorney Alvin Bragg: 17-152 § 17-152. 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. . . Just Security notes : To establish a felony (i.e. falsifying business records in the first degree), prosecutors would need to prove, in addition to the elements of the misdemeanor, that Trump’s “intent to defraud include[d] an intent to commit another crime.” There are a number of candidate crimes—and we offer below an assessment of just some of the more likely options . . This is the NY state law that states how the books and records misdemeanor can be bumped up to a felony. § 175.10 Falsifying business records in the first degree. A person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof. Falsifying business records in the first degree is a class E felony. . I note that it simply says “commit another crime or conceal the commission thereof.” It doesn’t say that the other crime can’t be a federal crime that is not a state crime. The other crime does not have to be charged. If the other crime had to be charged or at least had to be one that could be charged in state courts, then it would seem to be either difficult or impossible to use a violation of the federal election campaign contribution cap as the other crime. We have the statute. However, the question is if the other crime could be the federal campaign contribution cap. The language in the statute doesn’t exclude using it and the fact that intent is sufficient, and, therefore, the second crime doesn’t have to be charged might suggest that a federal election violation that isn’t a state crime can be used as the other crime. . Would the jury find reasonable doubt in the lack of a precedent? What would be sufficient to count as precedent? For me, I would think that any successful prosecution of a books and records misdemeanor that was bumped up to a felony using a crime that could not be charged in state court would be a precedent. If there is no such precedent, then it doesn’t mean that the prosecution can’t win. It might make it a little harder, I would think, however, because the defense only needs to prove that reasonable doubt remains. Nevertheless, the federal campaign contribution cap applies everywhere in the country. It is a crime wherever it occurs. This fact cannot be disputed or gainsaid. The fact that it is a crime in New York even if it can’t be charged in state court is sufficient to fit the “other crime” language found in the statute. . Just Security shows how crime is defined as an offense and the third definition of offense is, “by any order, rule or regulation of any governmental instrumentality authorized by law to adopt the same.” They continue: Further, the “same” in this context could mean “any order, rule or regulation,” which could potentially include federal law. The text of the statute therefore could include federal crimes. Moreover, if the New York state legislature wished to limit the third option to New York state law, they certainly could have said so clearly. There also appear to have been cases in New York brought with a federal crime as a predicate offense Now, Norm Eisen states that there are even examples of campaign finance crimes. However, even if there are not, a federal crime that is not also a state crime is, by definition, not a crime that can be charged in a state court. In my view, that is more than sufficient precedent for a jury. Precedent doesn’t have to be an identical case. The reason for this is that the argument against (using federal election law) would be that it can’t be charged in a state court, but we have examples of cases where the predicate crime can’t be charged. So, the argument against doesn’t hold. And here is what Just Security states: The third option in the statute, “any order, rule or regulation of any governmental instrumentality authorized by law to adopt the same,” could include federal law. In contrast to the other two clauses, the third does not explicitly limit “governmental instrumentality” to be “of this state.” And of course Congress is “authorized by law” to adopt laws imposing sentences of incarceration. Further, the “same” in this context could mean “any order, rule or regulation,” which could potentially include federal law. The text of the statute therefore could include federal crimes. Moreover, if the New York state legislature wished to limit the third option to New York state law, they certainly could have said so clearly. There also appear to have been cases in New York brought with a federal crime as a predicate offense, as we noted in our first essay in this series. . Just Security continues: . We explained that those (arguments of statute of limitations and defense based upon advice of counsel) can be overcome. Three more arguments that Trump may advance are: federal law preempts and thus blocks the campaign and election related state offenses at the state level; the funds used were not campaign money, and that the payment would have been made “irrespective” of the election. The federal preemption issue is a tricky one that requires unpacking but that appears to us to be ultimately unavailing . As for the other two hurdles we discuss below that Trump might advance, neither of them is persuasive either . . . . It’s important that you stayed engaged. This is totally irrelevant to the indictment, but extremely important Rick Wilson said [END] --- [1] Url: https://www.dailykos.com/stories/2023/4/5/2162169/-How-does-it-get-bumped-up-to-a-felony-Andrew-Weissmann-explains Published and (C) by Daily Kos Content appears here under this condition or license: Site content may be used for any purpose without permission unless otherwise specified. via Magical.Fish Gopher News Feeds: gopher://magical.fish/1/feeds/news/dailykos/