Democrats, Not Trump, Are The Real Crooked Record-Keepers

BY: JOSEPH LOBUE | MAY 29, 2024

Read more at https://thefederalist.com/2024/05/29/democrats-not-trump-are-the-real-crooked-record-keepers/

JOSEPH LOBUE

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President Trump is on trial in New York for allegedly falsifying business records because the bookkeepers in his organization recorded certain legal expenses — specifically, a legal settlement — as “legal expenses.” According to Democrat prosecutors, the bookkeepers should have recorded these payments as campaign contributions and expenditures because, they say, the payments were “intended” to “influence” the 2016 election “unlawfully” by concealing a purported sexual encounter with a pornographer.

Convoluted and bizarre enough for you yet? It should be. Because there is absolutely nothing “unlawful” about concealing a purported sexual encounter with a pornographer.

There is, nevertheless, a good deal of crooked record-keeping going on these days. But Democrats are the ones doing it.  

False Characterization of Record-Keeping Requirements

Federal campaign finance law actually prohibits candidates from characterizing the payments at issue in the Trump case as campaign contributions and expenditures.

Brad Smith, a leading expert on campaign finance law and former member of the Federal Election Commission, was set to testify to that very thing in open court in the Trump case. Except Juan Merchan, the partisan Democrat Biden-donor judge presiding over the case, barred him from doing so. 

To accept the prosecution’s case, one must conclude that New York law requires candidates to make business records that violate federal law. The supremacy clause of the Constitution does not allow that. So, it is Democrat prosecutors, not the Trump organization, that conspired to falsely characterize the record-keeping issues in the case.

Judge Merchan’s Manipulation of the Trial Record

Judge Merchan’s rationale for excluding Smith’s testimony is that judges traditionally instruct the jury on the law. The problem is that Merchan already allowed prosecution witnesses, and prosecutors themselves, to opine on their understanding of campaign finance laws. Once he allowed that, Merchan was constitutionally required to allow Trump to mount a defense on the same point.

Merchan also overlooked the fact that how people align their behavior with the law is based as much on the policies of the administrators who enforce the law as on the words of the statute itself. Smith, a former member of the regulatory body that enforces federal campaign law, was prepared to testify that the agency’s policy precludes candidates from treating payments like these as campaign contributions and expenditures.

This leads to the obvious conclusion that the Trump organization booked the payments in the manner that they did, not to “unlawfully” influence the 2016 election, but because they were (or at least thought they were) required to do so in that manner by federal law, completely negating the factual element of unlawful intent.

In fact, had Trump “intended” to “influence” the 2016 election by covering up the Stormy Daniels’ NDA payments, the easiest way to do so would have been to characterize the late October 2016 payments as campaign contributions and expenditures. This is because, under federal campaign finance law, contributions and expenditures made in late October of an election year do not need to be reported until after the election.

Unfortunately (and unjustly), the jurors in the New York case will not hear any of this exculpatory information because the partisan Democrat judge has excluded it from the record. Like I said, it’s the Democrats who have the record-keeping problem. 

Talk About Falsifying Business Records to Influence an Election

Joe Biden is old. As Bill Maher puts it, Joe Biden is “cadaver-like” old. Polls show that nearly two-thirds of Americans believe Biden does not possess the mental fitness to serve another term as president. Do you think that might incentivize the White House to alter records to mitigate the political effects of Biden’s mental deterioration?

The White House is doing just that. It recently released the official transcript of Biden’s May 19 speech to the NAACP in Detroit. It was official. Except it wasn’t a transcript. It was a political circular designed to clean up the incoherent mess left by a mentally diminished man selfishly trying to hold onto the most difficult, demanding, and consequential job in the world.

The so-called “transcript” substantively corrected numerous significant instances of mental lapses or gibberish uttered by Biden, including the claim that he was vice president during the Covid “pandemic,” and that President Obama told him to go to Detroit and “fix it.”

Records? We Don’t Have to Show You Any Stinking Records!

There’s no need to falsify records if you improperly refuse to let the public see them at all. That’s what the White House did last week by claiming “executive privilege” over the audio recordings of Biden’s interviews with the special counsel investigating Biden’s mishandling of classified documents.

That’s the case where Biden took highly classified documents from the government while he was a senator and vice president, “willfully” retained them openly in dilapidated boxes in his garage, and then “willfully” disclosed the classified information to his ghostwriter as part of a lucrative $8 million book deal. Biden’s Justice Department declined to prosecute Biden, concluding that he would present himself to a jury like he did in his interviews — “as a sympathetic elderly man with a poor memory” — making it difficult to prove a felony “that requires a mental state of willfulness.”

In an effort to control the damage from the special counsel’s report, the White House and its allies released redacted transcripts of Biden’s interviews with investigators, apparently hoping that presenting the cold, written version of Biden’s testimony might minimize public fears about his declining mental state. It did not. Yet, it did open the door for Congress to subpoena the audio tapes of the interviews.

Last week, the White House barred the Justice Department from releasing those audio tapes to Congress on the grounds of “executive privilege.” However, the White House has already voluntarily released the transcripts of the interviews, so any privilege that may have existed has been waived. It is a basic principle of law that a party waives confidentiality privileges once the party voluntarily discloses any significant portion of the information. In fact, in these circumstances, the White House’s claim of executive privilege is not merely wrong, it is ludicrous.    

The White House’s assertion of “executive privilege” is not really a legal one — it knows it has no chance of prevailing in court. Rather, the assertion of privilege is purely political. The White House believes it can conceal the audio tapes until after the election while the issue is litigated.

The audio tapes must be really, really bad for Biden. How do we know this?  Because not releasing the tapes is really bad for Biden. The special counsel essentially reported that Biden appeared mentally diminished in his interviews. By refusing to release the audio tapes, Biden just confirms that perception.

There were no good options for the White House on the audio tape issue. Because the White House chose a bad option (withholding the tapes), one can only assume that the other option (releasing the tapes) was substantially worse. 

Why Withhold Records if You Can Just Hide or Destroy Them Instead?

That, apparently, was the credo of one of Dr. Anthony Fauci’s top advisers — and possibly Fauci as well — during the Covid panic in relation to their dealings with EcoHealth Alliance and the now-admitted use of federal funding to perform gain-of-function research at the infamous Wuhan Institute of Virology.

This month, the House Select Subcommittee on the Coronavirus Pandemic released shocking emails sent from the private Gmail account of David Morens, an adviser to Fauci, detailing an apparent effort by administrators to evade public open records laws — commonly referred to as “FOIA” — by improperly performing government work through private Gmail accounts or by deleting records altogether.

In one such email, Morens tells Peter Daszak, president of EchoHealth Alliance, that “there is no worry about FOIAs. I can either send stuff to Tony on his private gmail, or hand it to him at work or at his home. He is too smart to let colleagues send him stuff that could cause trouble.”

In another email, Morens confesses, “I learned from our foia lady here how to make emails disappear after I am foia’d, but before the search starts, so i think we’re all safe. Plus, i deleted most of those earlier emails after sending them to gmail.”  

Wow, that’s bad. But you have to understand, to Democrats, booking legal expenses as “legal expenses” is the real threat to democracy.

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Joseph LoBue is a retired Naval officer and attorney.