Re my reply 5, above, some clarification:
2nd paragraph: "This book explains why." According to its author, Mark Pomerantz.
3rd paragraph: "Allen Weisselberg . . . who pleaded guilty to tax fraud." 04/10/2024, sentence: 5 months at Rikers.
Under "comments by F. Holister"
Correction: "The New York statute does not state that . . ."
IMHO: The Manhattan DA objective in the present case before Judge Juan Merchan, is to take whatever is the result, to the Supreme Court of New York State. In order for the NY State Supreme Court Justices to decide the intent of the New York State legislature, re:
"The New York statute does not state" that there "must be a state law violation" as the covered-up crime, for elevating a New York State misdemeanor to felony.
The Manhattan DA seeks a decision, that a covered-up federal crime, qualifies for elevating a New York State misdemeanor to felony.
In other words, Mark Pomerantz thinks that he found a window of opportunity for making a mountain out of a mole hill, resulting in elevating "the seriousness of the charges" against Donald Trump.
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Re my reply 5, above, details about the Mark Pomerantz book:
Pomerantz vs. Pomerantz: An Annotation of His Leaked Resignation Letter in Manhattan DA Trump Investigation - 02/07/2023, Just Security article by Ryan Goodman - EXCERPTS:
[Ryan Goodman:] I have annotated the verbatim resignation letter (adding underlining for the passages I comment on). I draw primarily from [Mark Pomerantz's] own book, and also include some key news reports (especially reporting subsequent to the resignation letter) and other public statements from [Mark] Pomerantz and [Cyrus] Vance.
Aside: There may well be a strong case to indict Trump for financial crimes under New York State law (e.g., for false statements to banks and falsified business records), as detailed in a Brookings Institution report.
At an important meeting, held on Dec. 10, 2021, with the internal legal team, Pomerantz writes in his book: "Many of the lawyers were relentlessly negative." (p. 191) "There were references to our case as 'weak,' and one lawyer opined that it had 'many fatal flaws.' … Another person … expressed a view that the case might be 'way out there.' Another voice opined that, while the legal theory was legitimate, 'it's not the strongest case in the world.' Several … thought we were outside the 'heartland' of the statutory definition of 'scheme to defraud.'" (pp. 191-92) Indeed, Pomerantz writes that he abandoned this theory of the charges, as he did an earlier "novel theory" of his that the DA could potentially charge Trump for money laundering --- with Trump as the victim of extortion --- an idea that he recognized may have cost him credibility inside the office (p. 61).
In his book, Pomerantz appears to allude to the fact that lawyers left the investigation because they did not agree with the direction he was taking it. He writes, "It was common knowledge in the office that there had been 'defectors' from the Trump investigation." (p. 209) According to the New York Times, in late 2021, "three career prosecutors in the district attorney's office opted to leave the investigation, uncomfortable with the speed at which it was proceeding and with what they maintained were gaps in the evidence." One upshot: any appearance of agreement among the investigative team by the time of the Feb. 23, 2022 letter was in part because dissenters had left. (However, even by that date many appeared to still disagree with bringing an indictment on the basis of the existing evidence and legal theories.)
The following is not mentioned in the book: "In mid-January, a career prosecutor in the office circulated two memos to Mr. Bragg's aides detailing potential difficulties in making the case," according to the New York Times.
From the Brookings Institution report, pg. 7:
Defenses: Of course, any potential criminal case would not simply be a matter of affirmative charges and their legal and factual bases. Should Trump, the Trump Organization, or anyone associated with it be charged, we can expect a vigorous response. In Section IV, we set forth some principal defenses and discuss their potential impact.
First, New York felony criminal violations generally have a statute of limitations of only five years. Some of the conduct predates the five-year period. On the other hand, continuation of an ongoing criminal conspiracy and other tolling doctrines (such as the protracted absence of a defendant from the jurisdiction) can operate to extend statutes of limitations.
Second, with respect to a potential falsification of records charge, employees of the Trump Organization could cite New York Penal Code § 175.15, which provides that any clerk, bookkeeper, or other employee cannot be guilty of falsifying business records if they are merely acting on the orders of a supervisor and received no personal benefit from the act. However, employees acting under the orders of a supervisor must still provide an affirmative defense with evidence at trial to prove that they were merely acting under the orders of a superior.
Third, if Trump is charged in his personal capacity, prosecutors will have to prove that he had the specific intent to defraud. Trump may rebut such proof by claiming that he simply relied on his accountants, lawyers, and other professionals to do what was best for the company within the constraints of the law. To succeed, Trump will have to prove that he honestly and in good faith relied on the advice of counsel. Prosecutors can be expected to hotly contest this point, and it likely will emerge as one of the most critical battles of any trial.
Fourth, if the former president is charged personally, prosecutors also would have to show the materiality of false statements. In his defense, Trump may attempt to claim that, even if he knowingly provided false information to banks and lenders on financial statements, such statements are immaterial. For example, he could attempt to argue that false statements to a particular insurer were not of the kind that tended to influence the insurer’s coverage decisions.
Fifth, if he is charged personally, Trump may seek to deflect, pointing the finger at others, including arguing that the Trump Organization, rather than he in his personal capacity, should be held criminally responsible. New York law does provide that a corporation may be held criminally liable for the criminal behavior of senior executives acting within the scope of their employment or on the behalf of the corporation, although it does not prevent prosecutors from also criminally prosecuting a high managerial agent in his personal capacity.
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No need for Bragg to take the case the Supreme Court of New York State, for it is already pending in that court.
In New York State:
Supreme Court = highest trial court
Supreme Court, Appellate Division = intermediate appeals court
Court of Appeals = highest court of appeals in the state
CORRECTION to my reply 17, above:
IMHO: The Manhattan DA objective in the present case before Judge Juan Merchan, is to take whatever is the result, to the Supreme Court of New York State. In order for the NY State Supreme Court Justices to decide the intent of the New York State legislature, re:
Should be:
IMHO: The Manhattan DA objective in the present case before Judge Juan Merchan, is to take whatever is the result, to the Court of Appeals of New York State. In order for the NY State Court of Appeals Justices to decide the intent of the New York State legislature, re: