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Comment by kemayo | Hacker News Reader

My recollection is that the prosecution was a combination of the mis-labeling of the payments, and the mis-labeling being in service of concealing a (federal) crime. Said different crime being the original hush money payment, which happened during the campaign. I.e. if he hadn't done something illegal while running for public office, there'd be nothing to charge him with.

Now, it'd be better if he simply got prosecuted for the initial crime. Absolutely agree there. But I'm not sure that "I can avoid prosecution for campaign misdeeds by committing them and then waiting to pay people back until after the campaign" would be a great precedent.

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Hush money payments are not illegal, even for candidates. Congress has an $18 million slush fund for settling claims of sexual harassment: https://docs.house.gov/meetings/JU/JU00/20240613/117426/HHRG.... Those all have NDAs.

The judge summarized the case for the jury as follows:

> The allegations reflect in substance, that Donald Trump falsified business records to conceal an agreement with others to unlawfully influence the 2016 presidential election. Specifically, it is alleged that Donald Trump made or caused false business records to hide the true nature of payments made to Michael Cohen, by characterizing them as payment for legal services rendered pursuant to a retainer agreement. The People allege that in fact, the payments were intended to reimburse Michael Cohen for money he paid to Stephanie Clifford, also known as Stormy Daniels, in the weeks before the presidential election to prevent her from publicly revealing details about a past sexual encounter with Donald Trump.

That summary implies that paying off Stormy Daniels "to prevent her from publicly revealing details" about the affair was the unlawful act. But under what law? And why wasn't he just charged with that law directly?

The judge actually summarized it in vastly more detail than you say there. Take a look at the jury instructions if you want to see exactly what the theory was: https://www.nycourts.gov/LegacyPDFS/press/PDFs/People%20v.%2... (starting around page 29, or again around page 44)

Basically, the crime alleged was violating a NY election law saying that you can't try to influence an election through "unlawful means". They provided a sampling of said unlawful means: violating federal campaign contribution limits, falsifying other business records, and violating state tax laws about how the reimbursement to Cohen was handled. The jurors didn't have to unanimously agree about which of those things they think he actually did.

The reasons to not charge him for those separately would seem to be respectively: 1. that's the feds job, 2. statute of limitations expired for the non-felony falsifications during his presidency when he couldn't be charged with anything, and 3. Cohen directly committed the tax crime so all Trump's guilty of is conspiracy to commit a really niche bit of tax misrepresentation that didn't actually cost anything.

The unambiguous bit is that he definitely falsified business records, and so the squabble is over whether he's guilty of a misdemeanor or a felony. It was apparently persuasive to the jury that he did the felony version.

> Basically, the crime alleged was violating a NY election law saying that you can't try to influence an election through "unlawful means".

That just gets you back to the temporal problem we started with. As you say, the only "unambiguous bit" from the jury's implicit fact-finding "is that he definitely falsified business records." But he did that after he won the election. How can you influence an election through unlawful conduct that happened after the election was resolved?

Insofar as the case was framed as election manipulation, you need some conduct prior to the election. Which is why, as you observe, the prosecutor had to add a third layer of uncharged alleged crimes:

> Basically, the crime alleged was violating a NY election law saying that you can't try to influence an election through "unlawful means". They provided a sampling of said unlawful means... The jurors didn't have to unanimously agree about which of those things they think he actually did.

Putting aside that each of the predicate crimes is deeply flawed (e.g. federal prosecutors investigated and declined to bring the campaign finance charge), you can't rest your triple-layer cake felony theory on a base of uncharged predicate crimes and tell the jury they don't have to agree as to the predicate crimes: https://www.justsecurity.org/96654/trump-unanimous-verdict. This is exactly the sort of thing judges are supposed to keep from being submitted to the jury.

It's personally embarrassing that lawyers at my former firm helped architect this travesty. If this harebrained legal theory had been used to convict a sex trafficker or murderer, lawyers at that firm would be falling over themselves to represent the defendant on appeal pro bono.

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