Posted on 04/23/2024 9:36:42 AM PDT by SeekAndFind
If Bragg is using a state crime as his justification for bootstrapping his expired misdemeanors into felonies, I'd think that Trump has to be found guilty of those crimes first. Bragg can't just assert that Trump committed those crimes to revive his misdemeanors because Trump has the presumption of innocence until found guilty in a court of law. And Bragg doesn't have the jurisdiction to indict on those state charges; he only speaks for the people of Manhattan.
Is Bragg's assertion that Trump committed another crime enough to support the rest of his claims? Can Bragg operate from a presumption of guilt when defendants are given the presumption of innocence until found guilty in a court of law?
-PJ
Nothing in the statute requires a prior conviction, if the legislature wanted to write the statute that way, they certainly could have. For example, there are NY statutes involving DWIs that specifically reference if you have been convicted of two prior DWIs, the punishment is more severe. So the way it’s written the only requirement to be “in furtherance” of another crime, no conviction of another crime required.
So yes, like it or not, Bragg actually can just assert that Trump falsified records to conceal another crime. Of course he’ll have to prove that OTHER crime to a jury beyond a reasonable doubt too, however, since that’s an element of what he is charged with.
What if that other crime is beyond his jurisdiction? He's only the DA of Manhattan, yet he's asserting that Trump broke a New York State law. Isn't Bragg having to prove the OTHER crime just a de facto Bragg indicting on that other crime? Is this a back-door for any lower office to reach up and prosecute a crime that he's not eligible to prosecute normally?
Furthermore, if the crime is a New York state campaign finance violation, doesn't the New York State Public Campaign Finance Board have sole jurisdiction over campaign finance violations? Is Bragg even allowed to go there in the first place?
Even if Bragg alleges that the misdemeanor book-keeping entry should have been campaign finance related, doesn't that put it squarely in the domain of the NYS PCFB?
-PJ
Nothing in the statute says it has to be in his jurisdiction. The statute only says other crime.
Doesn't Trump have the right of grand jury indictment before a prosecutor can prove a crime against him?
-PJ
Isn't that a violation of the 5th amendment requirement of grand jury indictment for criminal charges?
Isn't the 5th amendment supposed to protect the defendant against surprise charges in court?
-PJ
De facto prosecution of crimes happens all the time. If I sue you for assault, or fraud, or a ton of other things, I have to essentially prove (though the burden is lower) that you committed the crime, and I’m not even the government.
Not even all crimes are charged by indictment. Misdemeanors are often just charged on a police officer’s ticket, for instance. So no, you don’t have that right.
If you sue me, isn't that a seventh amendment civil trial? How is that relevant to a sixth amendment criminal trial?
Not even all crimes are charged by indictment. Misdemeanors are often just charged on a police officer’s ticket, for instance. So no, you don’t have that right.
The book-keeping charge is the misdemeanor. What about the bootstrapping charge that revived the misdemeanor? That's what we're talking about. You said earlier that Bragg has to prove that statewide crime that was in furtherance of the records crime, didn't you?
So now Trump has to provide a defense against TWO crimes, the misdemeanors that Bragg charged, and the second statewide crime that Bragg said justified his misdemeanors and that you said Bragg had to prove in court. It's this second statewide crime that Bragg kept secret until after the trial began, and this deprived Trump of preparing an adequate defense to counter the proof that you said Bragg had to provide.
I said that this second statewide crime that Bragg has to prove becomes a de facto trial on the second crime, and that crime is beyond Bragg's Manhattan jurisdiction. If Bragg must prove the second statewide crime in order to justify the indicted misdemeanors, doesn't the defense have the right to provide a defense? Isn't that what would have been the case if the second statewide crime were charged by the Attorney General initially? Wouldn't that second statewide crime have gone to a grand jury and been included in the charging documents? Wouldn't the defense have been given the opportunity for discovery in order to prepare a defense against it?
So, you're telling me that Bragg can take a dead misdemeanor and revive it and bootstrap it into a felony by claiming that it was in furtherance of another crime, but that Bragg must also prove that other crime, but the defense is not allowed to prepare a defense against that other crime -- that it must do so in real time? And that second crime is beyond Bragg's jurisdiction to bring if it stood alone, but he can bring it to bootstrap an expired misdemeanor without a grand jury indictment that would have been required if it stood alone?
Doesn't that sound like an unconstitutional abuse of the law?
-PJ
We hadn’t been discussing the constitution before. Only the text of the statute and “de facto” criminal prosecutions. I don’t know where the sixth and seventh amendment came from here.
Trump doesn’t have to provide a defense against TWO crimes, though he may. He’s only charged with one crime. Whether Bragg has jurisdiction to prosecute the second crime himself is an argument that I don’t believe has ever been answered. All I’ve said is that the statute doesn’t require it.
Trump did ask what statute the underlying crime was in discovery. I know Bragg gave several options, so if he didn’t specifically identify which or the one he settled on wasn’t among them, I don’t believe that’s fair. If he did then it wasn’t really “kept secret.”
“So, you’re telling me that Bragg can take a dead misdemeanor and revive it and bootstrap it into a felony by claiming that it was in furtherance of another crime, but that Bragg must also prove that other crime, but the defense is not allowed to prepare a defense against that other crime — that it must do so in real time? And that second crime is beyond Bragg’s jurisdiction to bring if it stood alone, but he can bring it to bootstrap an expired misdemeanor without a grand jury indictment that would have been required if it stood alone?”
Other than the not allowed to prepare a defense against the other crime... yes, that’s exactly what I’m saying. That’s exactly what the statute allows.
Don't be obtuse. You know we were discussing grand jury indictment on the second charge. You know that the 5th amendment requires a grand jury indictment before a sixth amendment criminal trial. You presented a strawman about suing me not requiring a grand jury. I said suing me is a seventh amendment civil trial that doesn't require a grand jury, but we've been discussing a sixth amendment criminal trial.
that’s exactly what I’m saying. That’s exactly what the statute allows.
Doesn't the statute have to be constitutional? How can a statute "allow" for a charge to be brought that presumes guilt without a grand jury indictment?
Trump did ask what statute the underlying crime was in discovery. I know Bragg gave several options, so if he didn’t specifically identify which or the one he settled on wasn’t among them, I don’t believe that’s fair. If he did then it wasn’t really “kept secret.”
This is the only video I can find of what Bragg actually said: Bragg says "the law doesn't require it."
-PJ
Here’s the discovery response where the DA identifies four other statutes, the first of which is NY Election law:
https://twitter.com/frankrunyeon/status/1658577413750546434
Also, there’s no requirement in the statute that the falsification of business records is to conceal the defendant’s own crime. It can be someone else’s. Or it can be an attempt to commit another crime. It only has to be in “furtherance” of committing or concealing another crime. So I may have been a little over broad before when I said he had to prove the other crime. He has to prove the “furtherance” of another crime, whether or not the actions constitute an actual crime.
The example I remember from law school is if you break into a store by climbing in through a window, but the store was open and you could have walked in the front door, are you guilty of anything? No, other than being an idiot. But that climbing through a window could still be “in furtherance” of your failed attempt at crime.
The statute isn’t “allowing” for another charge to be brought. He’s not being charged with another crime.
Bragg is asserting that a crime took place, or that Trump was in furtherance of another crime. It's just an assertion, it's the presumption of guilt, and he's using that presumption to try another charge. That seems fundamentally flawed. You can't just declare somebody guilty of something (even of attempting something else) and then charge them with a crime in furtherance of that prior act. We have the presumption of innocence.
What this comes down to is Bragg declaring that if Trump is not guilty of this, he must be guilty of SOMETHING because he's Trump. So we'll charge him records fraud anyway, because he must be guilty of something.
What Bragg is doing is criminalizing opposition research and negative advertising.
-PJ
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