I know legal commentators are saying "Judge Merchan denied Trump's motions and has scheduled a trial for March 25, and this is now real and happening."
Hang on. There is a real chance that Trump's lawyers win a stay in federal court. (This gets technical about abstention). 1/
Hang on. There is a real chance that Trump's lawyers win a stay in federal court. (This gets technical about abstention). 1/
2/ I'm not revealing anything the lawyers don't already know.
They've sought these kinds of stays and injunctions in fed court before against NY prosecutors.
See Trump v. Vance on Manhattan DA subpoena for tax records. Trump lost every stage but won a 1-year delay, 2019-2020.
They've sought these kinds of stays and injunctions in fed court before against NY prosecutors.
See Trump v. Vance on Manhattan DA subpoena for tax records. Trump lost every stage but won a 1-year delay, 2019-2020.
3/ Trump's lawyers can seek an injunction in fed district court (and a stay) on grounds of
1) no state jurisdiction
2) federal preemption
3) selective prosecution, partisan bias, violation of 14th A.
I predicted this delay problem last year in @nytimes:
nytimes.com/2023/04/05/opi…
1) no state jurisdiction
2) federal preemption
3) selective prosecution, partisan bias, violation of 14th A.
I predicted this delay problem last year in @nytimes:
nytimes.com/2023/04/05/opi…
@nytimes 4/ Here's what I wrote last April:
"Pre-emption, abstention and federal jurisdiction are complicated. [In 2019], Trump’s lawyers filed for an injunction in fed court, took the appeals up to SCOTUS, & delayed the subpoena for about a year. This case is headed up the same road."
"Pre-emption, abstention and federal jurisdiction are complicated. [In 2019], Trump’s lawyers filed for an injunction in fed court, took the appeals up to SCOTUS, & delayed the subpoena for about a year. This case is headed up the same road."
@nytimes 5/ "Younger Abstention" is a federalism doctrine (more like a federal norm) against fed courts intervening in state processes.
Younger itself was a general rule against fed courts enjoining state criminal trials --
But there are exceptions, and they are in play here:
Younger itself was a general rule against fed courts enjoining state criminal trials --
But there are exceptions, and they are in play here:
@nytimes 6/ Exceptions to Younger abstention:
a) bad-faith prosecution/harassment
b) state court bias
c) clear unconstitutionality of state statute
d) state lacks jurisdiction.
Trump's lawyers can argue a), b), and d), with enough plausibility to take it up to SCOTUS
a) bad-faith prosecution/harassment
b) state court bias
c) clear unconstitutionality of state statute
d) state lacks jurisdiction.
Trump's lawyers can argue a), b), and d), with enough plausibility to take it up to SCOTUS
7/ Trump's lawyers can point to a series of problems indicating selective prosecution & harassment.
On top of the problems I pointed out last year (e.g., lack of precedent for fraud claim w/r/t internal business records like pay stubs... see below), more problems have emerged.
On top of the problems I pointed out last year (e.g., lack of precedent for fraud claim w/r/t internal business records like pay stubs... see below), more problems have emerged.
8/ I also spotted a preemption problem. See below.
It turns out the problem was bigger than I had thought:
I searched 100s of reported state cases referring to the fed statute here.
None of them involved a state prosecutor trying a case directly or indirectly based on FECA.
It turns out the problem was bigger than I had thought:
I searched 100s of reported state cases referring to the fed statute here.
None of them involved a state prosecutor trying a case directly or indirectly based on FECA.
9/ As far as I can tell from reported cases, there is no record of a prosecutor in *any state* trying to do what @ManhattanDA is doing here:
Bringing a criminal prosecution based on violating, attempting to violate, or concealing a violation of the Federal Election Campaign Act.
Bringing a criminal prosecution based on violating, attempting to violate, or concealing a violation of the Federal Election Campaign Act.
@ManhattanDA 10/ I think the reason is that the federal preemption clause in FECA is so explicit. Now add the problem that NY state statutes confirm federal preemption.
So that's already a big problem for Trump's lawyers to have a plausible claim for a stay against @AlvinBraggNYC's case.
So that's already a big problem for Trump's lawyers to have a plausible claim for a stay against @AlvinBraggNYC's case.
@ManhattanDA @AlvinBraggNYC 11/ But it turns out that Trump's lawyers spotted another problem in the motions for today:
Can NY prosecutors upgrade a business filing misdemeanor to a felony based on concealing a crime from another jurisdiction?
Here's the Trump argument at p. 14-15:
Can NY prosecutors upgrade a business filing misdemeanor to a felony based on concealing a crime from another jurisdiction?
Here's the Trump argument at p. 14-15:
@ManhattanDA @AlvinBraggNYC Trump argument p. 16:
"[b]y clear and unambiguous language, ‘any crime’ in CPL 160.59(3)(f) does not include crimes under the laws of another state.”
To our knowledge, no New York court has ever held otherwise with respect to § 175.10."
"[b]y clear and unambiguous language, ‘any crime’ in CPL 160.59(3)(f) does not include crimes under the laws of another state.”
To our knowledge, no New York court has ever held otherwise with respect to § 175.10."
@ManhattanDA @AlvinBraggNYC 13/ I don't know if Trump's lawyers are right about 175.10.
But if they're right that "no NY court has ever held" that a misdemeanor 175.05 can be upgraded to felony 175.10 based on a federal crime, that's a big deal.
And @manhattanDA didn't help in their reply...
But if they're right that "no NY court has ever held" that a misdemeanor 175.05 can be upgraded to felony 175.10 based on a federal crime, that's a big deal.
And @manhattanDA didn't help in their reply...
14/ @manhattanDA @AlvinBraggNYC whiffs on this new and important point.
They don't cite a single judicial holding to support their argument directly on 175.10.
The best they have is a plea deal and a jury instruction + acquittal.
p. 27-30
They don't cite a single judicial holding to support their argument directly on 175.10.
The best they have is a plea deal and a jury instruction + acquittal.
p. 27-30
15/ @manhattanDA can cite only two examples, but neither works.
One is a 2010 PLEA DEAL. (Goldstein). Sorry, a plea deal doesn't count as a legally contested question and a judicial ruling on the merits.
The other is a mere jury instruction & acquittal (Marshall 2009)
P. 29-30:
One is a 2010 PLEA DEAL. (Goldstein). Sorry, a plea deal doesn't count as a legally contested question and a judicial ruling on the merits.
The other is a mere jury instruction & acquittal (Marshall 2009)
P. 29-30:
@ManhattanDA 16/ In Marshall, did the defendants even raise this jurisdiction problem?
Did the trial judge even rule on it?
If he/she did, @manhattanDA didn't say so...
And this is the best example that @manhattanDA could bring?
This is genuinely a problem.
Did the trial judge even rule on it?
If he/she did, @manhattanDA didn't say so...
And this is the best example that @manhattanDA could bring?
This is genuinely a problem.
@ManhattanDA 17/ There are so many problems of apparently unprecedented prosecutions:
1. Relying on FECA in state court
2. Setting aside NY state's recognition of fed preemption
and now
3. the 175.10 felony upgrade jurisdiction problem
(among others)
that a federal court might issue a stay.
1. Relying on FECA in state court
2. Setting aside NY state's recognition of fed preemption
and now
3. the 175.10 felony upgrade jurisdiction problem
(among others)
that a federal court might issue a stay.
18/
Again, I'm not saying who is right on the merits of jurisdiction, preemption, and abstention here.
But there's enough smoke here for a plausible claim of selective prosecution, enough for fed courts to issue a stay to review the merits.
But I have an even bigger concern:
Again, I'm not saying who is right on the merits of jurisdiction, preemption, and abstention here.
But there's enough smoke here for a plausible claim of selective prosecution, enough for fed courts to issue a stay to review the merits.
But I have an even bigger concern:
19/ I worry about further delay of the crucial Jan 6 trial. I worry that 5 Justices will grant cert and take too much time writing a long opinion.
I worry that @ManhattanDA @AlvinBraggNYC has given SCOTUS fodder by engaging in such blatant prosecutorial overreach.
I worry that @ManhattanDA @AlvinBraggNYC has given SCOTUS fodder by engaging in such blatant prosecutorial overreach.
@ManhattanDA @AlvinBraggNYC 20/ Just to be clear, this is a different question from Trump’s meritless removal motion in federal court before Judge Hellerstein.
He ruled against the preemption argument in the weak context of removal to federal court.
This would be a selective prosecution argument.
He ruled against the preemption argument in the weak context of removal to federal court.
This would be a selective prosecution argument.
• • •
Missing some Tweet in this thread? You can try to
force a refresh
