Tag: election law

Jury Instruction Boilerplate Guidelines for Judges in Trump NY Criminal Case

Michael Matheron1 Comment

The following is so-called boilerplate guidelines for New York state judges for their jury instruction for the felony charged against Trump, FALSIFYING BUSINESS RECORDS IN THE FIRST DEGREE Penal Law § 175.10 (Committed on or after November 1, 1986). It is sourced through New York’s official Criminal Jury Instructions & Model Colloquies site which points out:

“The Criminal Jury Instructions are a set of model charges intended as a guideline for trial judges. The instructions are, of course, based on statutory provisions and prevailing case law.”

NOTE 1: It is not the complete instruction that Judge Marchan will present to the jury. But under NY Criminal Cases, it is a guideline for a case charged under Penal Law § 175.10, the felony charge facing Donald Trump. In fact, Judge Marchan is instructing the jury as I write this

NOTE 2: As the trial is in a state court, Judge Marchan may or may not advise the jury regarding the federal election law that is included in this case. Recall, however, that NY election law is implicated in this case. The presence of the federal election law in this state case is, by the way, unusual or perhaps unprecedented in a NY case of this type and its appropriateness is debated by legal scholars.

NOTE 3: The jury is not provided a copy of the jury instructions in New York. They may ask the judge specific questions as needed, however.

NOTE 4: Although this issue was actively discussed by analysts prior to the jury instructions, he jury can’t choose to convict Trump on the misdemeanor falsifying business records crime in New York, Penal Law 175.05(1) – SECOND DEGREE FALSIFYING BUSINESS RECORDS: DEFINITIONS AND ELEMENTS because Trump’s lawyers didn’t request that the jury instructions include “lesser included offenses,” which would have allowed the jury to weigh misdemeanors. New York law says that judges can submit lesser-included charges to the jury “if there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater.” The law further says that, in such situations, if either side asks for a lesser-included option, then the court must give it. Moreover, complicating things, in Trump’s case, the two-year statute of limitations had passed for the falsifying business records statute. Yet, some analysts opined and NY judicial precedent exists that – if the Trump lawyers had timely requested it (as set out above) – the two-year SOL would have been waived).

So, why would Trump’s legal team have decided against seeking this this waiver? If his lawyers believed Trump faced a near-certain felony conviction, the jury would have had an “escape route” from having only a felony to consider. And the misdemeanor would, as a first offense, likely resulted in no jail time. Politically, a misdemeanor conviction would strike many – Trumpists and some non-Trumpists – as a mild injury to Trump, if any at all. My guess is that Trump himself nixed the idea – being a consistent and (stupidly) confident risk taker, he would have bridled at accepting any conviction on any charge. If Trump’s convicted in the days ahead, his legal team’s decision here will be considered a game changer, and if we learn that Trump vetoed their plan, finally, where it counts, Trump would have been hoist on his own petard.

Here is the NY state jury instruction boilerplate, emphasis added:

“The (specify) count is Falsifying Business Records in the First Degree.

Under our law, a person is guilty of falsifying business records in the first degree when, with intent to defraud that includes an intent to commit another crime or to aid or conceal the commission thereof, that person:

Select appropriate alternative: [direction to judge]

makes or causes a false entry in the business records of an enterprise; or
alters, erases, obliterates, deletes, removes or destroys a true entry in the business records of an enterprise; or omits to make a true entry in the business records of an enterprise in violation of a duty to do so which he or she knows to be imposed upon him or her by law or by the nature of his or her position;
or prevents the making of a true entry or causes the omission thereof in the business records of an enterprise.

The following terms used in that definition have a special meaning:

ENTERPRISE means any entity of one or more persons, corporate or otherwise, public or private, engaged in business,

BUSINESS RECORD means any writing or article, including computer data or a computer program, kept or maintained by an enterprise for the purpose of evidencing or reflecting its condition or activity.

INTENT means conscious objective or purpose. Thus, a person acts with intent to defraud when his or her conscious objective or purpose is to do so.

In order for you to find the defendant guilty of this crime, the People are required to prove, from all of the evidence in the case, beyond a reasonable doubt, each of the following two elements:

  1. That on or about  (date) , in the county of  (county) , the defendant,  (defendant’s name),

Select appropriate alternative: [direction to judge]

made or caused a false entry in the business records of an enterprise; or
altered, erased, obliterated, deleted, removed or destroyed a true entry in the business records of an enterprise; or
omitted to make a true entry in the business records of an enterprise in violation of a duty to do so which the defendant knew to be imposed upon him/her by law or by the nature of his/her position; or prevented the making of a true entry or caused the omission thereof in the business records of an enterprise; and,
That the defendant did so with intent to defraud that included an intent to commit another crime or to aid or conceal the commission thereof.

If the affirmative defense does not apply, conclude as follows:

If you find the People have proven beyond a reasonable doubt both of those elements, you must find the defendant guilty of this crime.

If you find the People have not proven beyond a reasonable doubt either one or both of those elements, you must find the defendant not guilty of this crime.

If the affirmative defense does apply, continue as follows:

If you find that the People have not proven beyond a reasonable doubt either one or both of those elements, you must find the defendant not guilty of Falsifying Business Records in the First Degree.

If you find that the People have proven beyond a reasonable doubt both of the elements, you must consider an affirmative defense the defendant has raised. Remember, if you have already found the defendant not guilty of Falsifying Business Records in the First Degree, you will not consider the affirmative defense.

Under our law, it is an affirmative defense to this charge of Falsifying Business Records in the First Degree that the defendant, at the time he/she engaged in the conduct constituting the offense, was a clerk, bookkeeper or other employee who, without personal benefit, merely executed the orders of his/her employer or of a superior officer or employee generally authorized to direct his/her activities.

Under our law, the defendant has the burden of proving an affirmative defense by a preponderance of the evidence.

In determining whether the defendant has proven the affirmative defense by a preponderance of the evidence, you may consider evidence introduced by the People or by the defendant.

A preponderance of the evidence means the greater part of the believable and reliable evidence, not in terms of the number of witnesses or the length of time taken to present the evidence, but in terms of its quality and the weight and convincing effect it has. For the affirmative defense to be proved by a preponderance of the evidence, the evidence that supports the affirmative defense must be of such convincing quality as to outweigh any evidence to the contrary.

If you find that the defendant has not proven the affirmative defense by a preponderance of the evidence, then, based upon your initial determination that the People had proven beyond a reasonable doubt both of the elements of Falsifying Business Records in the First Degree, you must find the defendant guilty of that crime.

If you find that the defendant has proven the affirmative defense by a preponderance of the evidence, then you must find the defendant not guilty of Falsifying Business Records in the First Degree.”

Arizona Attorney General Gets the Best Gift at Giuliani’s 80th Birthday!

Michael Matheron2 Comments

Lest we forget in the midst of Donald Trump’s New York trial for messing with the 2016 election, we’re still in the midst of doling out indictments for 2020 election mischief. Among the states still trying to clear up their 2020 election schemes, Arizona has finally succeeded in serving Rudy Giuliani with his indictment, the worst birthday surprise. In a real sense, Kristen Mayes, Arizona’s AG, bagged the best and biggest prize. . . Awkward. How did he come to this pass? Well, it was an iconic Rudy self-own, among many, perhaps his finest hour.

Until yesterday, during his Palm Beach shindig, Rudy was the only one of eleven indictments that had not been successfully served. In fact, he taunted Arizona officials trying to find and serve him since the indictment was handed down in late April. Yesterday was, in fact, the final day that Arizona could serve him, so the clock was on Giuliani’s side. But he outed himself as only Giuliani can, stupidly broadcasting on Twitter/X during his birthday bash. At 7:06 pm, with his galactically unearned overconfidence he posted this, with an “I win/You lose” accent.

Why is this man smiling?! And why is he with the Palm Beach H.S. cheerleading squad?! Oh, and how has his house not been seized?! Does he have pants on?!

Well, by shortly after eleven o’clock the bigmouth was served on his way to a car. He was full, one supposes, of his jubilant sense of (1) having made it to his 80th year at home rather than prison, and (2) having bamboozled the Arizona judicial system. In fact, he zoomed from penthouse to doghouse, clutching in his paws an indictment birthday gift grab bag full of lovely felonies:

1) FRAUDULENT SCHEMES AND ARTIFICES, in violation of A.R.S. §13-2310{A);
2) FRAUDULENT SCHEMES AND PRACTICES, in violation of A.R.S. §13-2311{A);
3) FORGERY, in violation of A.R.S. § 13-2002{A){1) & {A){3);
4) CHANGING VOTE OF ELECTOR BY CORRUPT MEANS OR INDUCEMENT, in violation of A.R.S. § 16-1006{A){3);
5) TAMPERING WITH A PUBLIC RECORD, in violation A.R.S. § 13-2407{A){3);
6) PRESENTMENT OF FALSE INSTRUMENT FOR FILING, in violation of A.R.S. § 39-161.

Now for the denouement: Attorney General Mayes, with great aplomb posted this:

With more, much more, to come . . .

A Different Take on How Gingrich’s Secretary of State Job Offer to John Bolton May Violate Federal Election Law

Michael MatheronLeave a comment

December 8, 2011

The news yesterday from the Republican Jewish Coalition’s D.C. forum centered on the GOP’s presidential front runner, Newt Gingrich. Aside from all the candidates’ craven posturing and promising things they know they he could not or would not deliver, one of Gingo’s ex cathedra pronouncements garnered a positive response in that forum: he offered John Bolton, the infamous and nearly homicidal neoconservative, a cabinet position as Secretary of State. Soon after Gingo’s announcement, some accused him of a federal election law crime.

Well, it turns out there were two crimes perpetrated with Gingo’s job offer. First, the obvious one:  knowingly and deliberately considering John Bolton for any position whatever in a Gingrich administration.  If not a federal crime, it ought to be. 

Second, some argue that Gingo violated one of the federal anti-patronage laws that applies to candidates for federal office, 18 USC § 599 (set out below). The idea is that his offer to Bolton was an attempt to garner support from the RJC membership. That’s true, but that theory isn’t on the right path to § 599. 

It is quite arguable, however, that Gingo did violate § 599 in another, less obvious, way, like Election Law Blog’s Rick Hasen implies. Mr. Hasen drops the subject, however, without, as yet, a conclusion. It’s not easy to deal with GingoLingo and its consequences.  As always, it’s the indirect path that must be taken to get at the truth of anything Gingrich. And I believe I may have found that hidden path where Gingo and § 599 share a tent . . .

“If he will accept it, I will ask John Bolton to be secretary of state.” Newt “Gingo” Gingrich, December 7, 2011, at Republican Jewish Coalition (RJC) candidate forum directly promising an appointment to his as yet unearned Cabinet for the purpose of procuring support in his candidacy.

At first blush, it seems that one can hardly imagine an easier first year law school criminal law case study. Here, with Gingo at the RJC, is a fact situation that mirrors the very criminal conduct that the statute seeks to prevent. His statement above appears to meet all relevant criteria in the federal penal provision below:

U.S. Code, Title 18, Part I Ch. 29 

§ 599. Promise of appointment by candidate. Whoever, being a candidate, directly or indirectly promises or pledges the appointment, or the use of his influence or support for the appointment of any person to any public or private position or employment, for the purpose of procuring support in his candidacy shall be fined under this title or imprisoned not more than one year, or both; and if the violation was willful, shall be fined under this title or imprisoned not more than two years, or both.

 Let’s test it against Gingo’s comments to the RJC yesterday afternoon:

  •  Gingo “directly . . . promise[d] or pledge[d]”
  • “the appointment . . .to any public . . . position . . . or employment,”
  • “for the purpose of procuring support in his candidacy . . .”

Gingo might have more safely indicated he would “consider” John Bolton for Secretary of State, even “strongly” consider him. That doesn’t appear to violate the plain wording, nor even the spirit, of § 599 since “considering” Bolton for a position is not “promising” or “pledging.” Far from it. 

So, absent that, it seems Gingo has violated § 599, and consequently, if charged and convicted, Gingo would face being “fined under this title or imprisoned not more than two years, or both.” That would put a crimp in his presidential run, even more than his campaign staff resigning en masse (as in last June). That would even be worse than his worst flaw, himself.

Not So Fast There, Arraignment Breath. Yes, Gingo’s comments appear to be prohibited by the statute, nonetheless, as we all know, “appear” is a door that swings both ways. “Plain words” in statutory provisions have a habit of evolving into gibberish when one tries to actually apply them in  a seemingly a common sense way. I haven’t directly consulted the legislative history of § 599, but plain words have a way of becoming all “complexy.” The section though,

does not apply to Gingo’s comments before the RJC itself  in the way most people believe it applies. The idea in play is that Gingo’s offer to Bolton was designed to garner support among RJC members. Indeed, it was, but there’s more to it, and that is where the law becomes a bit less – and more – than the “plain words” seem to mean. Section 599 applies to Gingo in a comparatively indirect way, to another individual, John Bolton, rather than to the RJC membership. In this world “indirect” means “direct.”

HUH? Historically, the law regarding the “promise of appointment by candidate,” § 599, arises out of laws enacted, beginning in the late 19th century, to insulate federal employees from being “politicized” in the service of, for example, a candidate for office in return for a promise of a job, promotion, etc. This was originally intended to address the “spoils system.” Election laws prohibiting these kinds of actions address what are known as “patronage crimes.” Violators are, in effect, using – more correctly, promising to use – federal money to gain support for election by offering federal jobs.

Among these election laws,  § 599 is a provision that applies exclusively to candidates for federal office. The Department of Justice (DOJ), in its document, Federal Prosecution of Election Offenses, states that § 599 “is one of the few federal criminal laws specifically addressing campaign-related activity by candidates. It is a class statute that applies only to misconduct by federal candidates.” It prohibits candidates from offering employment to anyone in return for their campaign support, it is not merely to prevent those kind of job offers to federal employees alone. So, if Gingo, for example, offered Bolton the job as SecState in private to secure his endorsement, that would in all likelihood be a violation of § 599. “Section 599 has potential application when one candidate attempts to secure an opponent’s withdrawal, or to elicit the opponent’s endorsement, by offering the opponent a public or private job. It also applies to offers of jobs by federal candidates to others to secure endorsements.” [Emphasis added] [DOJ document, page 119] This DOJ hypothetical far more closely matches the actual facts of Gingo’s RJC pronouncement. It’s irrelevant that he promised the RJC crowd itself that he would appoint Bolton as SecState.

Why? Let’s think about whose support Gingo was at least arguably seeking with his job offer. It may well have been John Bolton, a man thought important in GOP neoconservative circles who has not yet announced a presidential preference. And that’s where the Gingo/§ 599 connection exists.

Quite easily, Gingo can be seen to have been offering Bolton a job to get Bolton’s endorsement. He’s not truly after the small number of conservative Jewish votes available. Of course, the calculating mind of Newt Gingrich realizes that no one could possibly see an advantage to a Bolton endorsement in the general election. Within the GOP primaries, the game in play now, Bolton has some pizazz. Iowa and other crazily conservative states loom on the primary horizon. By and large, those folks like John Bolton. Gingo knows Bolton’s imprimatur would help him among those voters, if only a smidgen. A smidgen may be the difference in New Hampshire. If, however, Gingo’s the nominee for the general election, he also knows he’ll have to quickly ditch John Bolton as too much a reminder of Dubya to be fit for regular folks’ memories, and votes.

In any event, Gingo’s in a bit of a tough spot legally now should DOJ decide to push it. Surely, some nonprofit group will, I hope, put pressure on them to do so. The case is not all clear lines and sharp corners, but it’s quite arguable that Gingo violated § 599.

Gingo To The Defense! Gingo is never speechless (Why, God?), and he’s really really mendacious, deliberately. That sort of behavior is in his wheelhouse. So an indictment has hurdles to clear. Gingo’s intent, for example. In legal terms, did he actually make a job offer (“promise or pledge”)? And does the provision apply to an offer to John Bolton, a private citizen? I discussed it above, and I answer “yes” to each, but an assistant attorney general answers to many and much of his or her job is political decision making, as we’ll see below.

Other questions: Did Gingo truly intend to follow through on his promise to the RJC/Bolton? Was he willfully making a legitimate “offer” to Bolton, and for what in exchange? Does he really care about gaining Bolton’s nod? Or was his “pledge” simply old-fashioned electioneering (lying) in front of a crowd known to support Bolton’s position to unapologetically promote the concerns of Jewish Americans for Israel’s security interests? Oy, there’s a lot of there there. . .

Section 599, if not definitively, addresses these issues in two ways:

1.  In its language: “Whoever, being a candidate, directly or indirectly promises or pledges the appointment, or the use of his influence or support for the appointment of any person to any public or private position or employment, for the purpose of procuring support in his candidacy . . .”

 2.  Recall the DOJ excerpt above,

“[Section 599] also applies to offers of jobs by federal candidates to others to secure endorsements.”

Summing up, a § 599 investigation seems merited under DOJ’s own guidelines.

Gingrich

  • (1) “indirectly,” but deliberately, offered one of the higher ranking federal jobs to John Bolton at the RJC meeting, even though Bolton was absent from the meeting, and
  • (2) Bolton has not yet made an endorsement for President, and thereby he meets the DOJ’s own applicability standard (“to others to secure endorsements”), however hypothetical their example has been thus far.
  • (3) It is not at all inconceivable, although it would be a tough point to prove, that Gingo intended the offer to be understood by Bolton as a quid pro quo for an endorsement. When Bolton heard that, what did he think? When Gingo chose that particular person at that particular moment, what was his motive? These questions need to be asked. Knowing Gingo as we do, does he offer anything for nothing?

To The Battlements! Gingo is never defenseless. Among many defenses, he could maintain he didn’t intend to violate the law as I’ve discussed it above. He didn’t really mean to offer Bolton a job. His only intent was to garner RJC members’ support, and that is legal. In other words,

“Look, I was lying to them, I have no intention of nominating Bolton for Secretary of State. As you know, I’m an audacious liar. Olympian. The RJC certainly knew I was lying in nearly everything I said. Look, they were on more than adequate notice.” 

Case closed. In that instance, the “criminal mind” is missing, and, moreover, recall that the law does not apply to the RJC forum qua forum. Look at it this way, if he’d publicly offered the entire RJC membership jobs in his (nightmarishly possible) administration, well, in § 599 terms, that  would be different.

Also, he’d assert that “technically,” or “in a legal sense,” he did not offer Bolton a “job.” He might say, “Look, as President I can only submit Bolton’s name to the Senate. They decide whether he actually gets the SecState job. If you’d passed high school freshman Civics as I did in two tries,  you’d know that.”

This concept, though, would complicate matters greatly. My guess, on that technical point alone, DOJ would be unwilling to charge him. And, legally, it’s a good point, but not unassailable if DOJ chose to fight him. Other defenses remain as well: First Amendment objections, for example. Also, he could qualify his words by pointing to his phrase, “[i]f he will accept it” as a qualification of his job “offer.”  Etc., etc. The mind of Gingo.

All Politics Is Politics. Ultimately, however, in re Gingo is as much a political decision for the DOJ and the administration as it is a legal decision. Can you imagine the furor on the right wing resulting from an Obama Department of Justice investigation of a potential GOP political opponent this late in the election cycle?  It’s especially dicey given that as presidential candidate, Obama’s flirtation with Colin Powell after Powell endorsed him came into § 599 territory:“He will have a role as one of my advisers,” Barack Obama said on NBC’s ‘Today’ in an interview aired Monday, a day after Powell, a four-star general and President Bush’s former secretary of state, endorsed him. “Whether he wants to take a formal role, whether that’s a good fit for him, is something we’d have to discuss,” Obama said.

So, this whole affair will almost surely be forgotten by all within a week, or less. I hope it sticks around a bit longer, though, if only as ammunition for other GOP snipers to use against him. It’s oddly fun to watch the maestro of mendacity direct his internal symphony of balderdash. And tempting fate, don’t we really want Gingo as the GOP nominee rather than as Inmate #213-3288?

Finally! A Michele Bachmann We Can Believe In!

Michael MatheronLeave a comment

November 17, 2011

I’m on record – before tonight’s Bachmann news – as a Bachmann denier. I simply did not believe she existed. No one so utterly congressloony could co-exist with gravity, the human nervous system, or the laws of thermodynamics. Well, I was wrong, tonight she has come down to earth, and, bless her heart, she had a few of her choicier words for Perfesser Newt Gingrich. . .
About 15 minutes ago CNN’s Political Ticker reported: Bachmann: Gingrich was paid to ‘influence’ Republicans for Freddie Mac by CNN Political Reporter Shannon Travis Webster City, Iowa (CNN) – As Newt Gingrich denies he was paid to lobby Republicans for mortgage giant Freddie Mac, fellow Republican presidential candidate Michele Bachmann on Wednesday challenged Gingrich’s denial.

Bachmann threw in after a campaign event in Webster City, Iowa: “Whether former Speaker Gingrich made $300,000 or whether he made $2 million, the point is that he took money to also influence senior Republicans to be favorable toward Fannie and Freddie,” This, Mrs. B, is great stuff! Keep talking (a phrase I never thought I’d write within three paragraphs of the words “Mrs. B” or “Michele Bachmann”). “While he was taking that money, I was fighting against Fannie and Freddie,” Bachmann said.

Ma’am, despite your well-aimed jab at Gingo, to me, you’re still scarier than an octogenarian in leotards, but when it comes to blunting the efforts of the miserable Newt, well, with Gingo climbing the GOP polls, regardless of our political differences we must all come together, if only for this moment. Keep it up, Mrs. B!