For many legal analysts, President Donald Trump remains a kind of criminal Midas figure: everything he says or does immediately becomes a crime. Over the past few years, the media has published a long line of unsubstantiated criminal theories by experts claiming that a tweet, meeting, or statement established a definite criminal case. It’s a popular and profitable attitude among the media that has created an insatiable appetite for such reassuring views. Law has become a recreation and legal analysts have become part of the legal entertainment.
This pattern continues until the end of the Trump administration. Within minutes of the leakage of a call between Trump and Georgia election officials, the same experts declared another clear crime. Loudest was Andrew Weissmann, whose desire to find a crime against Trump seems to transition from obsession to deception. There may be evidence to support a criminal allegation related to this appeal, but the minutes do not come close to being a criminal case.
Andrew Weissmann (now an MSNBC analyst and law professor at NYU) appears to have been keen to prove his critics right about his deep bias against President Donald Trump and his ruthless attitude towards law enforcement standards since leaving as Senior Assistant to Special Adviser Robert Mueller . He recently called on prosecutors to set up large juries to pursue Trump and others in a relentless campaign based on unsubstantiated legal theories. His latest book has been condemned by other prosecutors as being unprofessional and inappropriately. Weissmann previously called on prosecutors to refuse to assist John Durham in his investigation and called on Stone on a grand jury after Roger Stone was pardoned. Now he insists that the call to Georgian Foreign Minister Brad Raffensperger is clearly a criminal offense. While admittedly I am approaching these questions from a criminal defense attorney’s perspective, the claim is legally absurd.
The Saturday call is now known, although few have read the full log. Yesterday Raffensperger admitted that two days before the critical Georgia elections he had decided to release the tape of a comparative discussion. For legal reasons, recording (let alone releasing) settlement conversations is considered extremely inappropriate. In some states it would be a crime to engage in such non-consensual recording. (Georgia is a one-party consent state).
When the tape was released, many of us immediately criticized the President’s statement: “I only want to get 11,780 votes, one more than us because we won the state.” However, experts immediately declared another unequivocal criminal offense, and some members even called for some kind of twilight impeachment in the Trump administration’s final weeks. Weissmann immediately stated that the tape showed “criminal intent” as well as “evidence of his motive and pattern of similar activities”.
The problem is that in his blind pursuit of Trump, Weissmann once again left the penal code and controlling jurisdiction behind. He wasn’t alone. According to federal law, no crime is proven in this record.
As with the disability allegations examined by Robert Mueller and the Ukrainian appeal that formed the basis for the impeachment, it is a matter of intent. While most experts are particularly vague about the specific criminal provision, one possibility would be electoral fraud under 52 US 20511, which covers anyone who “knowingly and intentionally intimidates, threatens, or attempts to intimidate, threaten, or coerce anyone “Person who exercises the right to vote. This was not a direct intimidation of a voter, but it could be said to undermine that right.
However, such an interpretation comes to a standstill on purpose. This was a comparative discussion of electoral challenges with a multitude of attorneys present, not some back room at the Bada Bing Club. The overall stated purpose of the challenges was to count what the alleged Trump campaign described as untold votes exceeding the 11,780 deficit. Trump repeatedly claimed he won the election and proposed various theories about how many more votes were destroyed or not counted. He continued to return to the fact that they only need to approve 11,780 of those hundreds of thousands of supposedly uncounted ballots.
Georgian lawyers have done a good job refuting Trump’s theories and showing that there aren’t hundreds of thousands of untold or miscounted ballot papers. In any criminal case, however, Trump would simply argue that he was rephrasing the point of the pending cases in a settlement negotiation: that the election was not fair and that he actually won. This view is shared by around 40 percent of the public. A prosecutor would have to show that Trump clearly knew his theories were wrong and that he didn’t believe there were enough ballots to hit that number. As a criminal defense attorney, I would view a case built along this line as not only open to challenge, but also ridiculous.
Even if prosecutors could find a basis on which to establish intent, they would push the fraud laws beyond an understandable limit without more direct evidence of intent. Ironically, this is precisely the problem that affected Weissmann’s career, and why many of us viewed his selection by Müller as a tremendous mistake. Weissmann was responsible for the over-extension of a disability provision in a jury instruction that led a unanimous Supreme Court to overturn the Arthur Andersen conviction in 2005. He made the same exaggerated claims against Mueller (apparently rejected by staff) and has continued to do so as an MSNBC analyst. He seems insensitive to conflicting jurisprudence. Even a unanimous decision by Justice Elena Kagan does not seem to restrict his reading of such provisions. In the Kelly v. United States case, the Supreme Court overturned the Bridgegate convictions for the controversial blocking of traffic lanes on George Washington Bridge to create traffic problems for the Mayor of Fort Lee, New Jersey, who refused to approve of this. Gov. Chris Christie. The Court found:
“This requirement, as the Court has made clear, has prevented these laws from criminalizing all dishonest acts by state and local officials. A few decades ago, appellate courts often interpreted federal fraud laws to “prohibit” Plans to cheat citizens of their intangible rights to an honest and impartial government. “McNally, 483 US, at 355. This court declined to participate. The fraud laws we passed at McNally were “limited to protecting property rights.” Id., At 360. They did not authorize the federal prosecutors to “put Disclosure standards and good governance for local and state officials. “Ibid. “
Weissmann’s fraud prosecution would be based on a statement that could easily be defended in a comparative discussion about the results of uncounted votes. No clear threat or benefit was discussed. They discussed what Trump was looking for in these challenges and his belief that fraudulent and potentially criminal behavior was affecting the results. One can reject these allegations (like me) without turning the matter into a false criminal trial.
However, readers are not satisfied with just condemning Trump. You want prosecution. To that end, another former prosecutor, Daniel Goldman, stepped forward to give his own assurances for a criminal case against Trump. (House Intelligence Committee chairman Adam Schiff previously hired Goldman, who previously described Trump as a “shameful” person who “doesn’t care about the country” and “looks bad” for committing a crime. “) Goldman focused on the line, “It will be expensive for you.” Goldman stated, “I have been charged with extortion on mob cases using similar language.” In reality, the line read “It will be very expensive in many ways,” which is very different from “it will be dear to you.” The blackmail theory is the same basic theory that was put forward in the impeachment trial. I testified at that hearing and found that this type of interpretation was previously rejected by the Supreme Court. The House refused finally from accepting an extortion article of impeachment.
I would be interested to know which cases Goldman calculated solely for this type of lead. The statement in a comparison that further litigation will be “costly” is hardly unprecedented. In addition, Trump can point out what he said after that line, “I think you have to say you will re-examine and you can re-examine, but re-re-examine with people who want to find answers, not with people who don’t. I don’t want to find any answers. But like Weissmann, Goldman wants the public to believe that this is not only a good case for law enforcement, but also no different from cases he is personally pursuing. If he were to bring a case on this type of evidence, it’s hard to believe that he would stand up to a fleeting pre-trial challenge.
Of course, none of this matters. It’s just law. This is legal entertainment. In the echo chambers of our current news platforms, such views are seldom challenged. Viewers hear what they hoped for from experts who want to deliver endless theories of crime. Of course, the same endless flexibility in the criminal code doesn’t extend to people like Hunter or Joe Biden. Trump just has that criminal Midas touch.