CONCERNS: On MoJo, Rubin defines the crime!

TUESDAY, APRIL 30, 2024

But then, up jumps the Times: As far as we know, President Lincoln never voiced concern about the future of "our democracy." 

His moral insights and intellectual skills came from the realm of the gods. In one of his two most famous speeches, he used language which was more evocative to give voice to that same concern:

LINCOLN (11/19/63): The world will little note, nor long remember what we say here, but it can never forget what they did here...It is rather for us to be here dedicated to the great task remaining before us...that government of the people, by the people, for the people, shall not perish from the earth.

"Our democracy" is a somewhat fuzzy construct. By way of contrast, this president spoke of government of and by and for the people.

Of the people, by the people? They're around us every day.

Today, we're engaged in a great tribal war. Citizens of both Americas—Red and Blue—say that they're concerned about our democracy. 

So people said in that new CNN poll, the survey released just this week. In yesterday's report, we noted the numbers:

"Among Democratic-aligned voters," 67 percent of respondents called protecting democracy an extremely important issue in this year's White House campaign. "On the GOP-aligned side," the number was somewhat smaller, but still stood at 54 percent. 

As with Lincoln's other most famous address, so too here. In effect, the two sides are "praying to the same God"—but they don't agree on what our democracy needs protection from.

Their concerns are our concerns, though only in a sense. Before we return to the western world's first poem of war, we want to review a basic question which has arisen in recent weeks.

There were no elections in the late Bronze Age, Agamemnon, lord of men, never faced an electorate.

Today, elections are a very major component of what we regard as "our democracy"—and in the current election campaign, one of the major party candidates is locked up in a New York City courtroom, charged with 34 felony counts.

This has never happened before. The question which has arisen is this:

With what crime—with what manner of felony—does Defendant Trump stand charged?

With what manner of felony does Donald J. Trump stand charged? In a situation which speaks to our basic capabilities, it's remarkably hard to find out.

Yesterday morning, on Morning Joe, legal analyst Lisa Rubin offered an explanation of this knotty matter. To watch videotape of the exchange, you can start by clicking here. 

With what crime does Trump stand charged? Where the rubber met the road, this is what Rubin said:

RUBIN (4/29/24): The crime that the former president has been charged with is falsification of business records as a felony. And in order to establish that he's committed a felony as opposed to a misdemeanor, you have to show that he falsified business records with the intent to conceal another crime. And that's where David Pecker comes in.

David Pecker is critical to the establishment of the conspiracy to promote Trump's election through unlawful means where at least one act was taken in the direction of those unlawful means. 

David Pecker was there for the formation of the conspiracy. David Pecker helped execute the conspiracy. David Pecker's payment to Karen McDougal, which he understood would pose campaign finance law problems, was that unlawful means.

So through David Pecker, prosecutors have gotten a lot of what they needed to establish that this was felonious and not just your, you know, everyday garden variety misdemeanor.

As far as we know, everyone agrees with Rubin's basic construct. To show that Trump engaged in felonious conduct, you have to show that he "falsified business records with the intent to conceal another crime."

The prosecutors will have to prove that Trump did falsify business records. According to Rubin, the additional crime he was allegedly trying to conceal was Pecker's payment to McDougal.

(For reasons we haven't seen explained, McDougal wanted to "tell her story," such as it was, in the midst of our 2016 White House campaign. Also, she wanted a big sack of cash for telling her story, and Pecker showed her the money.)

As of yesterday morning, the additional crime Trump was trying to conceal was Pecker's payment to McDougal. That's what we the people were told on yesterday's Morning Joe.

Rubin's analysis aired at 6:15 a.m. It was rebroadcast during the 8 o'clock hour. Meanwhile, a guest essay appeared at the New York Times which seemed to say something substantially different. 

The guest essay appeared beneath this headline, with this pair of author identity lines:

I Was an Attorney at the D.A.’s Office. This Is What the Trump Case Is Really About.

By Rebecca Roiphe
Ms. Roiphe is a former assistant district attorney in the Manhattan District Attorney’s Office.

[...]

Rebecca Roiphe, a former assistant district attorney in the Manhattan District Attorney’s Office, is a law professor at New York Law School.

We're not sure we've ever read a less coherent essay. Along the way, the essay seems to offer a different set of views concerning the additional crime the defendant is charged with trying to conceal.

Along the way, the essay calls into question the capabilities of an array of elites within our own Blue America. It calls into question the capabilities of the New York Times itself, but also of our assistant district attorneys and of our law professors.

In our view, the essay by Professor Roiphe is very hard to parse. That said, along the way it makes such statements as these:

Mr. Trump is accused of creating 11 false invoices, 12 false ledger entries and 11 false checks and check stubs, with the intent to violate federal election laws, state election laws or state tax laws. The number of lies it took to create this false record itself helps prove intent. His defense attorneys will claim that he was merely trying to bury a false story to protect his family from embarrassment. The timing of the payments—immediately after the potentially damaging “Access Hollywood” tape was released and right before the election—makes that claim implausible.

[...]

More important, jurors are particularly good at applying common sense. Mr. Trump didn’t go to all this trouble just to protect his family members, who might have known about accusations of his involvement with the porn star Stormy Daniels or similar ones. We may never learn which crime the jurors believe Trump was seeking to commit or cover up, but they can still conclude beyond a reasonable doubt that this was his intent.

[...]

For the prosecution, the elements of the crime in this case do not require a finding that Mr. Trump interfered with the 2016 election. Nor does it matter whether he had sex with Ms. Daniels. Instead, the real elements concern the way Mr. Trump used his business for a cover-up. By emphasizing the crime he was intending to conceal rather than the false business records, the prosecution also risks confusing the jury into thinking about whether the lies affected the election. It might lead them to wonder why Mr. Trump wasn’t charged with this alleged election crime by the federal government—a talking point that he has promoted publicly.

Start with that first excerpt. The defendant is charged with falsifying business records "with the intent to violate federal election laws, state election laws or state tax laws?"

Or state tax laws? That one small word seems to suggest that, even now, we don't know what additional crime Trump is charged with trying to conceal. And sure enough:

In that second excerpt, we're told that we may never know which crime the jury came to believe he was trying to cover up! In the third excerpt, Professor Roiphe seems to assert that Trump did in fact "use his business for a cover-up"—but she herself doesn't specify the additional crime she has in mind.

We may never know! Along the way, Roiphe says this about the New York State law under which Trump is being prosecuted:

Lawmakers in New York, the financial capital of the world, consider access to markets and industry in New York a privilege for businesspeople. It is a felony to abuse that privilege by doctoring records to commit or conceal crimes, even if the businessman never accomplishes the goal and even if the false records never see the light of day. The idea is that an organization’s records should reflect an honest accounting. It is not a crime to make a mistake, but lying is a different story...

Prosecutors and New York courts have interpreted this law generously, with its general purpose in mind. The element of intent to defraud carries a broad meaning, which is not limited to the intent of cheating someone out of money or property. Further, intent is often proved with circumstantial evidence, as is common in white-collar cases. After presenting evidence, prosecutors ask jurors to use their common sense to infer what the possible intent may be, and New York jurors frequently conclude that a defendant must have gone to the trouble of creating this false paper trail for a reason.

As she starts, Roiphe agrees with Rubin's basic construct. That said, is it possible that prosecutors and New York courts have interpreted the law in question too generously—have let "the element of intent to defraud" carry too broad a meaning? 

It seems amazing to hear that we may never know the basis on which the defendant ends up being found guilty by a Gotham jury. For the record, these strange pronouncements are part of what is routinely denounced when Red America's citizens listen to the legal analysts on the Fox News Channel.

Such complaints are standard of Fox. It's hard to say that these complaints are crazy.

Rubin says that Trump is charged with the attempt to conceal a crime by David Pecker. Other observers have said and suggested that Trump is charged with trying to conceal—well, elsewhere the explanations can get very confusing.

Along comes the former assistant D.A., published in Blue America's leading newspaper. She says we may never know what the defendant will be found to have tried to conceal! 

We're on Day 9 of the "hush money" trial, and this is a peculiar measure of our basic capability.

Coherent behavior by the justice system is one basic part of government of and for the people. It's a basic part of "our democracy"—and in this instance, it's a basic part of an ongoing White House election campaign.

We're in Day 9 of an unprecedented criminal trial. Can anyone define, with any certainty, the felonious conduct with which the defendant stands charged?

In Blue America, we talk "hush money" all day long. The hush money payment to the porn star has become our leading concern.

Within this somewhat puzzling mess, is there an echo of the concern at the heart of the western world's first war poem? Can we learn to see ourselves more clearly if we revisit that earlier Bronze Age war?

Tomorrow: Just one thing on their minds