Irony in the Court

I was reading this bit on the fact that the judge in the Trump 'hush money' case worked for the DNC before this trial, and donated money to Biden, and that his daughter is now raising money for Biden, and I suddenly realized a significant irony at work. 

This trial is based on a very novel legal theory, as Reason magazine points out. Even heavily excerpted, it takes a long explanation to convey what they think constitutes the felony here.

Contrary to Colangelo's spin, there is nothing "pure and simple" about Manhattan District Attorney Alvin Bragg's case against Trump. To begin with, Trump is not charged with "conspiracy" or "election fraud." He is charged with violating a New York law against "falsifying business records" with "intent to defraud."...  Ordinarily, falsifying business records is a misdemeanor. But it becomes a felony when the defendant's "intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof." Bragg says Trump had such an intent, which is why the 34 counts are charged as felonies.

Bragg had long been cagey about exactly what crime Trump allegedly tried to conceal. But during a sidebar discussion last week, Colangelo said "the primary crime that we have alleged is New York State Election Law Section 17-152." That provision says "any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor."

In other words, Bragg is relying on this misdemeanor to transform another misdemeanor (falsifying business records) into a felony. But the only "unlawful means" that he has identified is Cohen's payment to Daniels.... [and] Trump was never prosecuted for soliciting that contribution. There are good reasons for that. The question of whether this arrangement violated federal election law hinges on whether the hush money is properly viewed as a campaign expense or a personal expense.... proving that allegation beyond a reasonable doubt would have been hard, as illustrated by the unsuccessful 2012 prosecution of Democratic presidential candidate John Edwards.... Given the fuzziness of that distinction, it is plausible that Trump did not think the payment to Daniels was illegal.... 

The fact that Bragg is relying on an obscure offense that apparently has never been prosecuted speaks volumes about his eagerness to convert the Daniels hush payment into 34 felonies. That strategy will prove "twisty," Connor said, because "you're having an underlying crime within an underlying crime to get to that felony."

If Trump did not recognize the hush payment as "unlawful," it is hard to see how his "intent" in falsifying business records could have included an intent to conceal "another crime." And that's assuming a purported violation of federal campaign finance restrictions counts as "unlawful means" under Section 17-152.

So the issue is that there's a twisty path by which one alleged misdemeanor could have led to another alleged misdemeanor, assuming mens rea can be proven for both, which allows one to aggravate the other into a felony. The felony is that there's an conspiracy to "promote or prevent the election of any person." 

The gag order in this case, however, is plainly an undisclosed campaign contribution to Biden, by a judge who has also made disclosed campaign contributions to Biden and who is a long-time DNC affiliate. Gagging Trump during the campaign is an undisclosed in-kind contribution, and part of a rather open conspiracy to "promote" Biden's election and "prevent" Trump's. 

In other words, while it is difficult to say whether Trump is guilty of the offense he is charged with, or even if it's a plausible thing to charge someone with given the circumstances, it's abundantly clear that the judge in the case is guilty of the very thing he's being asked to judge. It is the case he is judging that is itself the vehicle for his own apparent offense against the very law he is adjudicating. 

How ironic.