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Main argument being made against Bragg's case, preemption, is wrong-Norm Eisen & Neal Katyal [1]
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Date: 2023-04-01
Neal Katyal is a careful legal scholar. When he does a deep dive into an issue and feels confident about an issue, he is likely correct.
Those who oppose Bragg charging Trump in this case mainly rely upon the preemption law issue. To boost the misdemeanor books and records case into a felony, you must show that it is done to conceal or commit a crime. The problem is that violating federal campaign finance laws in a federal campaign is not a state crime. Anything of value made in connection with an election is a campaign contribution. Does state law apply to a federal candidate in a federal election or does federal law apply to a state court?
Norm Eisen, “We have a good sense of what the Trump defenses are because he has been ventilating them. One is that this case is somehow novel, that you never get a books and records case bootstrapped up into a felony because of campaign finance violations. Ryan Goodman, myself, and some of our colleagues looked, there are many of those cases it turns out in New York. There is the Richard Brega case, the Clarence Norman case, the John Doty (sp?) case, Richard Luthmann case, George Mazearas (sp?) case, these are all books and records cases where there were expenditures to benefit a campaign that were arguably outside the parameters, either the amounts or the disclosure rules, and that bumped up the false books and records into a felony, so they may try to say well, it’s novel, we’ve never seen a books and records case done for this, but it’s just not true.”
Norm Eisen again, “Can you base a charge against a federal candidate on a state campaign finance violations to bump up the misdemeanor books and records to a felony? You know I took a deep look (it’s funny Neal Katyal said the same thing when correcting former Senator Claire McCaskill on the issue — he said (very close paraphrase) that he took a deeper look at this and that claim is a mistake) at the low of preemption, here the usual rule that when the feds have said, ‘hey we’re going to do campaign finance for presidential elections, is this full of, normally you would say the state can’t rely on that. It turns out that campaign finance preemption law is FULL OF HOLES and CIRCUIT AFTER CIRCUIT HAS ALLOWED STATE AUTHORITIES TO MOVE TO BRING CASES BASED AGAINST FEDERAL ACTORS WHERE FEDERAL CAMPAIGN FINANCE LAWS IMPLICATED BECAUSE STATE CONCERNS PREDOMINATE . That (the defense team’s argument) may be the dumbest, I think Bragg has the better. “
They tried (on television) to use the Edwards case, but “Edwards made it to the jury- NO LEGAL INFIRMITY basis to dismiss, there was an EVIDENTIARY INFIRMITY, paid hush money to his mistress. (there was a) hung jury, Jack Smith didn’t retry because of EVIDENTIARY INFIRMITIES INCLUDING THE FACT THAT PAYMENTS CONTINUED TO FLOW AFTER THE CAMPAIGN” ` (paraphrase) UNLIKE THIS CASE (payments stopped and started in a way that it is natural to infer that it was tied to the presidential election, as the defendant, Cohen, and his attorney felt were undeniable or he would not have pled guilty to that which added a year to his sentence).
“Tollings apply which make it not a good statute of limitations case” (for the defendant).
Elliot Williams, “The law is abundantly clear on (statue of limitiations)… It’s a bit of a gimme… the simple fact is a defendant who has been away from a jurisdiction for an extended period of time, the statute of limitations for crimes committed on that soil will be tolled, paused.”
Additional information
“But there are exceptions to federal preemption contained in regulations from the Federal Election Commission, known as the F.E.C. And it is possible that the other law, 17-152, which makes it illegal to conspire to promote the election of any candidate “by unlawful means,” may be able to avoid triggering federal pre-emption. …
‘It appears that this provision, which prohibits unlawfully promoting an election, could fit into one of the F.E.C,. exceptions,” said Jerry H. Goldfeder, a special counsel at Stroock & Stroock & Lavan LLP and a recognized expert in New York state election law… “
State campaign finance law in New York
New York campaign finance requirements govern the following: how much money candidates may receive from individuals and organizations,
how much and how often they must report those contributions, and
how much individuals, organizations and political parties may contribute to campaigns. In addition to direct campaign contributions, campaign finance laws also apply to third-party organizations and nonprofit organizations that seek to influence elections through independent expenditures or issue advocacy.
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https://www.dailykos.com/stories/2023/4/1/2161456/-Main-argument-being-made-against-Bragg-s-case-preemption-is-wrong-Norm-Eisen-Neal-Katyal
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