On Wisconsin!

April 5, 2023

Judge Janet wins in Wisconsin!

          Judge Janet Protasiewicz is projected to win a seat on the Wisconsin Supreme Court by a substantial margin. As of Midnight Eastern, Judge Janet was leading by 10 percentage points, with 95% of the vote counted. Although the final result will be closer, the margin of victory is an encouraging signal in a state where judicial elections are routinely decided by hundreds of votes.

          It is difficult to overstate the significance of this victory—for the people of Wisconsin and the fairness of the 2024 presidential election. In 2020, the Wisconsin Supreme Court was the only state supreme court that seriously entertained a baseless challenge to the popular vote results. The Wisconsin Supreme Court denied review of Trump's specious claim of election irregularities by a one-vote margin—a margin that Judge Janet's victory will preserve.

          Judge Janet's victory is significant because it is another instance of voters electing candidates who support reproductive liberty. Moreover, Judge Janet's opponent opposed background checks on gun sales. Thus, in a hotly contested election that featured two "top-of-mind" issues in a swing state, the strong victory by Judge Janet bodes well for Democrats in 2024.

          It is also difficult to overstate the contribution of Democrats across the nation who helped fundraise and get out the vote in Wisconsin. I know that many of the readers of this newsletter contributed to the efforts. You should be rightly proud of your role in helping to secure the promise of democracy for all Americans. And we should recognize the outstanding effort by the Wisconsin Democratic Party (Wisdems.org) in achieving this result.

          Congratulations to all!

The Trump indictment.

          On a day of non-stop coverage of the indictment of Donald J. Trump, less is more.

          Here are the facts that matter:

• The people of the State of New York filed this Indictment against Donald Trump.

• The indictment alleges 34 felony counts of falsification of business records.

• The Manhattan District Attorney separately released this Statement of Facts. If you have time, read the 13-page document in full. It sets forth the essential facts and legal theories for everything that will transpire in the case of People of New York v. Donald Trump.

• Important allegations in the Statement of Facts include the following:

          From August 2015 to December 2017, the Defendant [Trump] orchestrated a scheme with others to influence the 2016 presidential election by identifying and purchasing negative information about him to suppress its publication and benefit the Defendant's electoral prospects. In order to execute the unlawful scheme, the participants violated election laws and made and caused false entries in the business records of various entities in New York.

          [Michael Cohen] who then worked for the Trump Organization as Special Counsel to [Trump] covertly paid $130,000 to an adult film actress shortly before the election to prevent her from publicizing a sexual encounter with the Defendant. [Michael Cohen] made the $130,000 payment through a shell corporation he set up and funded at a bank in Manhattan. This payment was illegal, and [Cohen] has since pleaded guilty to making an illegal campaign contribution . . . .

          In a conversation captured in an audio recording in approximately September 2016 concerning Woman 1's account, the [Trump] and [Cohen] discussed how to obtain the rights to Woman 1's account from AMI and how to reimburse AMI for its payment.

          [Trump] directed [Cohen] to delay making a payment to Woman 2 as long as possible. He instructed Lawyer A that if they could delay the payment until after the election, they could avoid paying altogether, because at that point it would not matter if the story became public.

• During a 58-minute appearance before Judge Juan Merchan, Donald Trump pleaded not guilty to all charges in the indictment.

• Judge Merchan declined to impose a gag order, although he cautioned the parties to exercise restraint in making out-of-court statements. Trump promptly disregarded the judge's cautionary warning by making incendiary statements during an evening speech at Mar-a-Lago.

• Judge Merchan set the next hearing in the case for December 2, 2023.

Discussion of the indictment.

          The indictment alleges financial crimes were committed to protect Trump's presidential prospects. The cover-up was part of a broad ranging “catch-and-kill” strategy that continued into Trump's first months as president.

          The indictment has provoked a torrent of criticism by legal commentators. Most of the criticism hinges on the fact that the underlying offenses of financial fraud are typically charged as misdemeanors. Here, they are charged as felonies. To leverage misdemeanors into felonies, New York must prove that Trump intended to commit other crimes.

          Alvin Bragg identified those other crimes during a news conference, which include

• tax fraud,

• facilitating false statements by the National Enquirer's parent company (AMI),

• violation of state election laws, and

• violation of federal election laws.

          Most commentators focus on the difficulty of proving the last two crimes—violations of federal and state election laws. For example, one of my favorite legal commentators, Ian Millhiser, has annoyed me greatly with this article in Vox, The dubious legal theory at the heart of the Trump indictment, explained.

          Millhiser's analysis is as good as it gets—but I disagree. At the core of Millhiser's criticism is this:

Bragg has evidence that Trump acted to cover up a federal crime, but it is not clear that Bragg is allowed to point to a federal crime in order to charge Trump under the New York state law.

          Millhiser suggests that Bragg must prove a federal crime to prevail. Not true, entirely. Bragg can rely on uncharged state crimes—including violations of New York election laws and income tax violations, as Bragg said in his news conference. Moreover, as Millhiser concedes above, "it is not clear" whether an uncharged federal crime will suffice. The relevant New York statute says that a person is guilty of a felony under state law

when he commits the crime of falsifying business records [and has] the intent to commit another crime . . . .

          The New York statute refers generally to "another crime," not a "state crime" or a federal crime. Just "another crime." Millhiser says that ambiguity might get Trump off the hook. I doubt it. The statute is plain on its face. Trump will undoubtedly make Millhiser's argument, but I believe Trump will lose the argument.

          Okay, that's as deep as I will examine the legal issues. The issues are more complicated than I have described above, and there are other worrisome defenses (including the timing of the payments—all of which occurred after Trump took office).

Despite my disagreement with Millhiser, his analysis is excellent and cannot be easily dismissed. If you are interested in a deep dive into the alleged weaknesses of Bragg's case, Millhiser's article is an excellent resource. See also Mark Joseph Stern in Slate, Donald Trump indictment is not the slam-dunk case Democrats wanted.

          Although two of my favorite legal commentators are raising red flags, I think Bragg can convince the judge that the false financial records were part of a broad-ranging "catch-and-kill" strategy designed to violate state and federal election and tax laws. That should be enough to get the case to the jury.

Trump cannot appeal any pre-trial rulings, which means that if the judge denies the expected motions to dismiss, the trial will take place in the spring of 2024. By then, Trump should be defending two federal indictments and one from Georgia.

Concluding Thoughts.

          I am cutting the newsletter short this evening due to a cold. My Managing Editor will record the audio version. There is much to be thankful for this evening, including the relative calm in Manhattan during the arraignment and the strong mandate received by Judge Janet in Wisconsin. As I frequently say (to the annoyance of one reader, I have been informed), “We have every reason to be hopeful but no reason to be complacent!”

          Talk to you tomorrow!