“This is a common but completely false troupe around here. There is nothing in the statute requiring conviction of an underlying crime. There’s nothing in the statute that even requires the defendant to be the one committing the underlying crime, or even requires the EXISTENCE of an underlying crime. If I cook corporate books because you’re going to embezzle funds and I want to hide it, but then you chicken out and don’t do it, I’d still be guilty of the felony falsification of business records because it was my intent to cover up a crime.”
The existence of an underlying crime isn’t required?
An underlying criminal statute must exist even though that statute may not necessarily have to be violated. BUT...
Intent MUST be established beyond a reasonable doubt. It is true that a person can unintentionally break a law of which he or she is unaware. However, intent is not established AT ALL for a violation of an “underlying” crime that not only did not happen but the defendant is unaware is a crime.
There would have to be a smoking gun. The prosecutor would need evidence of at least one specific crime that the defendant was aware of and intended to commit (or help others commit or cover up). There was no smoking gun. Just smoke and mirrors.
This is why these charges should never have been brought.
The judge wrongly defined “unlawful means” as various underlying crimes. And he told the jury they can take their pick:
“In determining whether the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you may consider the following:
(1) violations of the Federal Election Campaign Act otherwise known as FECA;
(2) the falsification of other business records; or
(3) violation of tax laws.”
These are not “unlawful means”. These are underlying crimes. The judge has it backward.
https://dictionary.findlaw.com/definition/means.html
Means—
1 a : something enabling one to achieve a desired end [a of self-defense]
b : cause
2 : resources (as income and assets) at one’s disposal
The judge is essentially instructing the jury that while the People must prove beyond a reasonable doubt that Trump INTENDED to commit a crime, this intention can be so nebulous as to be just a general bad intent. It could be to do any one of several crimes which he does not have to have committed or even knew the applicable laws existed.
This is the biggest sham ever committed in the US legal system. It just doesn’t get any worse.
While I agree with you that the charges against Trump do not require the commission of an underlying crime, they do require at least an awareness of an underlying crime in order to establish intent. Without intent there is no case. And intent CANNOT simply be assumed. It MUST be proven.
As in my example, if you are trying to embezzle from the company, even if you don’t do it, is enough to get me for felony cooking the books. So I would say the difference between there being no underlying crime, and no underlying crime having been committed, is pretty much just semantics, but I guess your phraseology is slightly more accurate.