Jed Handelsman Shugerman in NYT oped:

About a year ago, when Alvin Bragg, the Manhattan district attorney, indicted former President Donald Trump, I was critical of the case and called it an embarrassment. I thought an array of legal problems would and should lead to long delays in federal courts.

After listening to Monday’s opening statement by prosecutors, I still think the Manhattan D.A. has made a historic mistake. Their vague allegation about “a criminal scheme to corrupt the 2016 presidential election” has me more concerned than ever about their unprecedented use of state law and their persistent avoidance of specifying an election crime or a valid theory of fraud….

In stretching jurisdiction and trying a federal crime in state court, the Manhattan D.A. is now pushing untested legal interpretations and applications. I see three red flags raising concerns about selective prosecution upon appeal.

First, I could find no previous case of any state prosecutor relying on the Federal Election Campaign Act either as a direct crime or a predicate crime. Whether state prosecutors have avoided doing so as a matter of law, norms or lack of expertise, this novel attempt is a sign of overreach.

Second, Mr. Trump’s lawyers argued that the New York statute requires that the predicate (underlying) crime must also be a New York crime, not a crime in another jurisdiction. The Manhattan D.A. responded with judicial precedents only about other criminal statutes, not the statute in this case. In the end, they could not cite a single judicial interpretation of this particular statute supporting their use of the statute (a plea deal and a single jury instruction do not count).

Third, no New York precedent has allowed an interpretation of defrauding the general public. Legal experts have noted that such a broad “election interference” theory is unprecedented, and a conviction based on it may not survive a state appeal.

AP:

Lead prosecutor Matthew Colangelo wasted little time during opening statements tying the case to Trump’s campaigning during his first run for the presidency. He said the payments made to Stormy Daniels amounted to “a criminal scheme to corrupt the 2016 presidential election.”

Whether the jury accepts that connection will be pivotal for Trump’s fate. The presumptive GOP nominee faces charges related to falsifying business records that would typically be misdemeanors unless the alleged act could be tied to another crime. Prosecutors were able to charge them as felonies because they allege that the false records were part of an effort to cover up state and federal election law violations — though that’s still not the type of direct election interference that Trump is charged with elsewhere….

ome legal experts monitoring the cases against Trump said they were skeptical of connecting the payments to a form of “election interference.” Doing so also runs the risk of diminishing the gravity of the other charges in the public mind.

Richard Painter, a University of Minnesota Law School professor and former associate White House counsel during the George W. Bush administration, said he believed the facts of the case met the evidence needed to determine whether a felony had been committed that violated campaign law, but added, “The election interference part, I have a little bit of trouble on this.”

Richard Hasen, a UCLA law school professor, said the New York case does not compare to the other election-related charges Trump faces.

“We can draw a fairly bright line between attempting to change vote totals to flip a presidential election and failing to disclose embarrassing information on a government form,” he wrote in a recent Los Angeles Times column.

In an email, Hasen said New York prosecutors were calling the case election interference “because that boosts what may be the only case heard before the election.”

Some said prosecutors’ decision to characterize the New York case as election interference seemed to be a strategy designed to raise its visibility.

“When (Manhattan District Attorney) Alvin Bragg calls it an election interference case, that’s more of a public relations strategy,” said Paul Butler, a professor at Georgetown Law and former federal prosecutor. “I think there was concern that people were looking at the other prosecutions and they weren’t discussing the Manhattan case.”…

Josh Gerstein for Politico:

That means prosecutors usually need evidence that the defendant was an expert in the law, was told what he or she was doing was illegal, or told someone else to ignore the law. Some lawyers believe that may explain why federal prosecutors never charged Trump with the campaign finance crime that Cohen admitted to working with Trump to commit.

“I assume that’s why SDNY didn’t indict Trump,” Eliason said, referring to the U.S. attorney’s office in the Southern District of New York. “I think the willfulness would have been a big hurdle to charging Trump himself.”

Smith said the issue in this case, as in Edwards’, isn’t just whether the defendant had a general understanding of campaign finance law, but could really have known for sure that what he was doing was illegal. “The strongest argument for Trump is that in fact there is quite a bit of controversy over whether this is illegal. Look at the FEC’s own rulings,” Smith said.

It’s unclear how Bragg’s prosecutors would meet that burden or if the judge will require them to. Pretrial motions didn’t really tee up the issue. It is likely to arise as the lawyers debate jury instructions or in a motion the defense typically makes asking the judge to toss the case after the prosecution’s witnesses have testified.

Eisen said he thinks Justice Juan Merchan will apply a lower standard in the state prosecution. “It’s so much easier than in federal court,” Eisen said.

However, there’s a risk to allowing prosecutors to get a conviction without having to prove that Trump knew he was breaking the law: That issue could be strong fodder for an appeal and might lead to any guilty verdicts against Trump being overturned.

“I think the likelihood of a conviction is quite high, quite strong,” said Eliason. “On appeal, that’s where some of these issues come up.”

I have written this piece for the LA Times. It begins:

In watching some of the breathless coverage of Donald Trump’s “hush money” trial, I’m reminded of the 2004 quote from former U.S. Defense Secretary Donald Rumsfeld that, “You go to war with the Army you have, not the Army you might want.” People want the hush money case to be the big case that can take down Trump because it may be the onlyone that goes to trial before the election….

But the hush money case that opens Monday in New York? I have a hard time even mustering a “meh.” Trump may not be convicted of a felony in the case, and if he is, there’s a reasonable chance of an eventual reversal on appeal. Besides, the charges are so minor I don’t expect they will shake up the presidential race. They may actually make that situation worse…

Although the New York case gets packaged as election interference, failing to report a campaign payment is a small potatoes campaign-finance crime. Willfully not reporting expenses to cover up an affair isn’t “interfering” with an election along the lines of trying to get a secretary of state to falsify vote totals, or trying to get a state legislature to falsely declare there was fraud in the state and submit alternative slates of electors. We can draw a fairly bright line between attempting to change vote totals to flip a presidential election and failing to disclose embarrassing information on a government form. If every campaign finance disclosure violation is election interference, our system is rife with it.

I certainly understand the impulse of Trump opponents to label this case as one of election interference — that could resonate with voters and make them less likely to vote for Trump. But any voters who look beneath the surface are sure to be underwhelmed. Calling it election interference actually cheapens the term and undermines the deadly serious charges in the real election interference cases…

Trump also may have serious grounds for appeal in the New York case. It is far from clear that appellate courts would treat the hush money payments as legitimate campaign expenses that needed to be reported, as opposed to personal expenses. And it is uncertain that failing to report a campaign expenditure required by federal law can be a violation of New York state election law against promoting “the election of any person to a public office by unlawful means.” These issues may well have to be sorted out by higher courts.

NYT:

Two right-wing political operatives who used a robocall campaign to try to discourage Black New Yorkers from voting in the 2020 election will pay up to $1.25 million for their actions, the New York State attorney general’s office announced on Tuesday.

During the summer of 2020, around 5,500 New Yorkers received robocalls falsely claiming that if they voted by mail, their personal information would be sent to law enforcement agencies, debt collectors and the government. The calls were made at a time when many states were encouraging voters to cast their ballots by mail because of the coronavirus pandemic.

One New Yorker was so disturbed by one of the calls that he experienced “severe anxiety and distress and ultimately withdrew his voter registration,” according to the attorney general’s office.

The office said the calls came from a “sham” organization called Project 1599, which was created by the operatives, Jacob Wohl and Jack Burkman.

Read the consent decree.

Politico:

A disciplinary panel in Washington has found that Jeffrey Clark, a former high-ranking Justice Department official, violated ethics rules for lawyers in his attempt to aid Donald Trump’s bid to subvert the 2020 election.

The three-member disciplinary committee determined Thursday that Clark’s campaign to pressure Justice Department leaders to help upend the transfer of power to Joe Biden violated his duties as an attorney.

The preliminary ruling jumpstarts a process that could lead to the suspension or even permanent revocation of Clark’s license to practice law, even as he’s considered a candidate for a senior position in a second Trump administration.Disciplinary investigators who brought the charges against Clark say they intend to advocate for his disbarment.

The decision followed six days of testimony, including by Clark’s former Justice Department superiors: Acting Attorney General Jeff Rosen and his deputy Richard Donoghue, who described a failed effort by Clark to use the department to falsely claim the election results were in doubt. Former Deputy White House Counsel Pat Philbin also testified publicly for the first time about Clark’s gambit….

Clark has one more opportunity to convince the three-member panel to reverse its decision, which the panel’s chair Merril Hirsh repeatedly emphasized was a “preliminary” and “nonbinding” determination. Both he and disciplinary investigators will file briefs and seek to persuade the panel to rule in their favor in a subsequent decision that is likely several months away.

Gregory Nolan NYT oped:

When a Texas appeals court reversed itself last week and acquitted Crystal Mason, a mother of three, in a voting fraud case, it ended almost a decade in which Ms. Mason lived in fear of being torn away from her family and imprisoned.

In 2018, she was sentenced to a five-year prison term for illegally casting a provisional ballot in the 2016 election.

While the prosecution of Ms. Mason may have failed, it still could have broader consequences in chilling people’s willingness to exercise their right to vote. Few would want to vote if it means going through what Ms. Mason did. As such, the reversal in her case cannot undo much of the damage that irresponsible Texas prosecutors wrought.

As the federal circuit court of appeals that oversees Texas recognized decades ago, “short of physical violence,” nothing has “a more chilling effect” on voting than “baseless arrests and prosecutions.” Unfortunately, that may be the point of bringing cases like Ms. Mason’s, as they suggest apparent racial disparities at work in voting-fraud prosecutions…

David Ettinger explains the procedures, including how the case could end up at SCOTUS.