Playing The Blue Guitar

yes, that is the law in NY; if you are committing one crime to further or cover up another crime it is more serious, and thus it is a felony, even if the two are misdemeanors.

— Andrew Weissmann 🌻 (@AWeissmann_) April 5, 2023

Conspiracy is actually a more troubling charge to me; yet no one ever blinks at it.

In a conspiracy, you don't need an "underlying crime." The conspiracy itself is the crime.  And what is a "conspiracy"?  It's an agreement by two or more person to do something that itself would be illegal.  But you don't have to do it, to have the crime.  You just have to talk about doing it.  This was the crime alleged against the men who allegedly planned to kidnap the governor of....Wisconsin?  Michigan?  I should remember, it was only a few years ago.  But you get the point.

They never carried it out because one of their members was an FBI informant keeping track of everything every individual said in furtherance of the conspiracy.  They were charged, but the kidnapping never happened.  Along the same lines, it was pointed out by one lawyer this morning (on MSNBC) that if Cohen had simply intended to use the records of the repayment from Trump to cheat on his taxes, that would be enough to bring charges for tax fraud.  Completion of the act, the lawyer argued, was not necessary to charge and prove the crime.

Now I never practiced criminal law, and I learned just enough about it to pass the bar exam, and promptly forgot most of that.  And I've certainly never practiced in New York state, and in fact quit practicing law almost 30 years ago now.  But I'm full blown skeptical of all the kibbitzer and "experts" on TeeVee and the intertoobs who suddenly know more about the DA's case in Manhattan than the DA does because they read a document.  If the case fails on its merits, it fails.  It if succeeds, it succeeds.  That's going to be up to the DA's office, Trump's lawyers, the judge, and the jury, in the end.  What actually gets to trial is not even known, yet.  But some of the rank ignorance about what "has to be charged" is coming from people who've never tried a criminal case in their lives.

So why did I mention conspiracy law?  Because conspiracy is an "inchoate" crime.  The conspiracy itself is the crime, not the act of, say, kidnapping.  It's inchoate because the discussion of the crime is the actus reus necessary to combine with the mens rea and create a chargeable offense.  The problem with conspiracy as a crime is that the mens rea becomes the actus reus. It's a short-circuit.  But the system accepts that, and still recognizes the crime of conspiracy.  Similarly, but perhaps on firmer ground, the law in New York recognizes that committing one misdemeanor in order to cover another misdemeanor makes a felony of the two crimes together.  It's not like being charged for shoplifting a candy bar AND a magazine AND a can of Coke.  Those could all be three counts of misdemeanors. In this case, the second misdemeanor is the cover-up; as in, the conspiracy to hide the truth that is referenced (as I understand) in the statement of facts (and no, "conspiracy" is not used there because it's a legal term, like 'felony.' But you don't have to charge a conspiracy to present the narrative of a conspiracy creating the charged misdemeanor of a cover-up to level both up to a felony).  And what we always say (and never mean) is that the cover-up is worse than the crime.  Well, until the crime lands a rich white ex-POTUS in the dock.

The funniest part of this, which NO ONE is talking about, is that Bragg said it yesterday:  these cases are the bread-and-butter of the Manhattan DA's office.  In other words, they do this all the time.  And no one notices, because no one cares.  But now that the whole world is watching?  OMIGOD!!!!! YOU CAN'T DO THAT!!!!!  IT AIN'T FAIR!!! IT AIN'T FIT!!! IT AIN'T RIGHT!!!!  IT AIN'T PROPER!!!!!  

Because it's being done to a rich and famous white man.  And this time the whole world is watching.  They're watching how the legal system turns people into sausage.  But even that doesn't bother them.  What bothers them is who is being made into sausage this time.

The hypocrisy is absolutely stunning.  Especially because everybody and his mother is playing the game.  God forbid we should see things as they are.