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Yet to come: Misprision of felony

Xelor

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Trump Organization is a closely held family business wherein the people running it are Trump and his kids. It thus strains credulity to think that either Don Jr. or Ivanka, if not both, didn't know of Michael Cohen's criminal behavior because they were certainly aware of the Trump Tower Moscow negotiations.

The instant government investigators tie the one to felonious criminal behavior s/he knew of and didn't report, the gov't can charge the person with misprision of a felony. It wouldn't surprise me at all if that charge gets levied against least one of Trump's kids or Jared Kushner.

If they are, they will be but recent folks charged with that crime:
Misprision is a crime that often enough can be shown when more familiar ones -- treason, obstruction of justice, or conspiracy to commit..., for example --cannot. To do so, prosecutors must show that "Party A" committed an actus reus and "Party B" knew about it and failed to inform LEOs about it.
So far, Mueller's and other DoJ indictments haven't named any Trumps as defendants. We'll have to see whether any eventually do and, if so, what specifically are the charges. I dare say brushing up on your comprehension of jurisprudential theory as goes misprision of felony may be a useful undertaking if one cares to be prepared to for what may come.
 

Common Sense 1

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Just hilarious..... arm chair lawyers telling us how they would get president Trump and his family.
Be afraid... be very afraid. :lamo
 

Amelia

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Xelor, are you an armchair lawyer?
 

Xelor

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Xelor, are you an armchair lawyer?

No. Why do you ask?

Perhaps you're referring to the other member's remark? I didn't respond to that post because it aims to discuss me, not the thread's topic. I'm not the subject of the discussion or the OP's theme.
 

sangha

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Trump Organization is a closely held family business wherein the people running it are Trump and his kids. It thus strains credulity to think that either Don Jr. or Ivanka, if not both, didn't know of Michael Cohen's criminal behavior because they were certainly aware of the Trump Tower Moscow negotiations.

The instant government investigators tie the one to felonious criminal behavior s/he knew of and didn't report, the gov't can charge the person with misprision of a felony. It wouldn't surprise me at all if that charge gets levied against least one of Trump's kids or Jared Kushner.

If they are, they will be but recent folks charged with that crime:
Misprision is a crime that often enough can be shown when more familiar ones -- treason, obstruction of justice, or conspiracy to commit..., for example --cannot. To do so, prosecutors must show that "Party A" committed an actus reus and "Party B" knew about it and failed to inform LEOs about it.
So far, Mueller's and other DoJ indictments haven't named any Trumps as defendants. We'll have to see whether any eventually do and, if so, what specifically are the charges. I dare say brushing up on your comprehension of jurisprudential theory as goes misprision of felony may be a useful undertaking if one cares to be prepared to for what may come.

https://www.debatepolitics.com/gene...ider-russian-collusion-12.html#post1067414782
 

Xelor

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Yesterday, it came out that in the "catch and kill" meetings pertaining to Ms. McDougal's story, "at least one other member of the [Trump] campaign," besides David Pecker and Michael Cohen, was in the room. I don't know whom that was, but at the time, the senior Trump campaign members were:
  • Ivanka Trump
  • Don, Jr.
  • Eric Trump
  • Roger Stone
  • Michael Cohen
  • Corey Lewandowski
  • Heather Hicks
  • Dan Scavino (current WH Social Media Director)
Whichever one of them was in that room should be concerned about at least a misprision of felony charge because the fact is that "catch and kill" in-kind contribution (or $150K contribution if one doesn't deem it as in-kind) was indeed an illegal campaign contribution.


Note:
Some folks will recall that David Pecker and Dylan Howard got themselves immunity agreements back in spring/summer 2018. Seems they had the presence of mind to know damn well that what'd transpired was criminal and "got ahead of it"so as not to be caught up in it? I suspect there are a few other folks who were similarly prescient...Allen Weisselberg for one.


EarlyBirdHD_thumb1.jpg


Getting ahead of the game in criminal matters means going to prosecutors and investigators when they don't know "Jack" and one knows "Jack, Junior, Fred and all their felonious friends. Anyone with half the sense God gave a goose knows when the "cat's out of the bag" and that federal prosecutors are going to find it sooner or later. Better to be the "cat" that "came in from the cold," lest one find oneself in the "cooler."
 

Checkerboard Strangler

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Trump Organization is a closely held family business wherein the people running it are Trump and his kids. It thus strains credulity to think that either Don Jr. or Ivanka, if not both, didn't know of Michael Cohen's criminal behavior because they were certainly aware of the Trump Tower Moscow negotiations.

The instant government investigators tie the one to felonious criminal behavior s/he knew of and didn't report, the gov't can charge the person with misprision of a felony. It wouldn't surprise me at all if that charge gets levied against least one of Trump's kids or Jared Kushner.

If they are, they will be but recent folks charged with that crime:
Misprision is a crime that often enough can be shown when more familiar ones -- treason, obstruction of justice, or conspiracy to commit..., for example --cannot. To do so, prosecutors must show that "Party A" committed an actus reus and "Party B" knew about it and failed to inform LEOs about it.
So far, Mueller's and other DoJ indictments haven't named any Trumps as defendants. We'll have to see whether any eventually do and, if so, what specifically are the charges. I dare say brushing up on your comprehension of jurisprudential theory as goes misprision of felony may be a useful undertaking if one cares to be prepared to for what may come.

On the contrary, I disagree with Kos' assertion that it's unlikely to get testimony of two witnesses or a confession in open court on treason charges. That doesn't mean that Mueller or other will necessarily attempt to use that play but I fully expect that there are ways to motivate two witnesses to testify exactly that, if need be.
 

Xelor

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The new word for it is now "synergy" :lamo

Off-Topic:
I liked to have died laughing when I heard when, in connection with the Russia "stuff," I heard that word. It was such a "buzzword" of the early '90s....I could have gotten rich and retired if I'd collected a dollar for every time I heard a MBA (the ones I was recruiting and the ones already working for me) utter that word. It became so hackneyed I stopped using it for about a decade.

I can't tell you how often I wanted to tell those folks, "Dude, the only synergy you know "Jack Crap" about is between 'Miss Palmer' and your penis." LOL
 

maxparrish

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Trump Organization is a closely held family business wherein the people running it are Trump and his kids. It thus strains credulity to think that either Don Jr. or Ivanka, if not both, didn't know of Michael Cohen's criminal behavior because they were certainly aware of the Trump Tower Moscow negotiations.

The instant government investigators tie the one to felonious criminal behavior s/he knew of and didn't report, the gov't can charge the person with misprision of a felony. It wouldn't surprise me at all if that charge gets levied against least one of Trump's kids or Jared Kushner.

An inventive technique for indicting a ham sandwich. However, its also the sort of thing that would get a whole lot of intense scrutiny in the appeals process - if only because it would be a high profile case that could redefine the breadth of government criminality making, especially given its history of dubious applications (Volokh illustrates just how absurdly broad it can get).

And first things first. Why would one assume that Don Jr. or Ivanka would know of a specific Cohen felony recognize that it is a crime, and then conceal it? Most of us go through life suspicious of others behavior, but guys like Cohen don't point out how he is scamming a bank loan and cheating the IRS on his 2015 taxes (for example). Moreover, more recent cases have found that the 5th amendment does not permit the government to charge you a concealing (not reporting) a crime if they could reasonably incriminating themselves in the crime.

I'm sorry, this speculation is slightly more reasonable than the legal theory behind the pursuit of DeLay and Rick Perry, but not by much.
 
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Xelor

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An inventive technique for indicting a ham sandwich. However, its also the sort of thing that would get a whole lot of intense scrutiny in the appeals process - if only because it would be a high profile case that could redefine the breadth of government criminality making, especially given its history of dubious applications (Volokh illustrates just how absurdly broad it can get).

And first things first. Why would one assume that Don Jr. or Ivanka would know of a specific Cohen felony recognize that it is a crime, and then conceal it? Most of us go through life suspicious of others behavior, but guys like Cohen don't point out how he is scamming a bank loan and cheating the IRS on his 2015 taxes (for example). Moreover, more recent cases have found that the 5th amendment does not permit the government to charge you a concealing (not reporting) a crime if they could reasonably incriminating themselves in the crime.

I'm sorry, this speculation is slightly more reasonable than the legal theory behind the pursuit of DeLay and Rick Perry, but not by much.
  • Red (and the sentence in which it's found):
    • Ignorantia juris non excusat -- Plus, were we talking about a pure jurisprudential rube of some stripe, one might be sympathetic to the implication of your "red" phrase. The actors involved simply don't fit that description; thus no such sympathy is warranted.
    • I don't need to assume any specific person(s) knew of others' crimes because we already have enough information to know that none of the crimes, or potential crimes, at issue re: Trump, Cohen, et al are crimes that a single individual undertook, could have, or would have perpetrated alone.
    • One need not know a specific code section to know or have reason to believe that a given behavior be criminal.
  • Blue:
    • The only way one can incriminate oneself by reporting another's behavior is if one is indeed party to the actus reus. Misprision of felony is the crime of not reporting someone else's, not one's own, criminal behavior. If one wasn't party to the actus reus but one knows of it, one has a duty to report it. If one is a party to the actus reus, one is already a criminal, and not reporting the deed is but one's trying to abscond without penalty.
  • If one was among the WH personnel who were party to/aware of M. Cohen's "socialization" of his untruthful testimony before Congress and was also aware of the events about which he was going to testify, one knew/knows damn well the man lied and planned to lie to Congress
  • If the parties didn't in 2016 know the acts involved were criminal, at this point, given all the publicity of events such as the Stormy Daniels NDA, the McDougal "catch and kill" scheme, and the Trump tower meeting, they surely have reason to suspect the behavior of which they are aware be criminal.
  • Bratton v. United States --> Misprision of a felony consists of two elements:
    • Some affirmative act of concealment such as suppression of evidence, harboring of the criminal, intimidation of witnesses, or "other positive act" designed to conceal from the authorities the fact that a crime had been committed, and
    • A failure to disclose.
Increasingly, we notice in the US apathy, and in some instances hostility, tothe idea of volunteering aid to LEOs. Misprision of felony statutes (along with the related accessory after the fact statutes) inspire citizens to perform their affirmativeduty to aid and abet the efficient detection and prosecution of crime. It is thus curious to encounter "law and order" advocates such as Trump, his disciples and acolytes who yet exhibit animosity toward and aloofness regarding performing their civic responsibility to assist LEOs by reporting activity that any reasonable person would at least suspect be unlawful. Moreover, by compelling every citizen to report knowledge of a felony to the authorities,facilitation of the administration of justice augurs to lower ofthe unit cost of law enforcement, which, insofar as all our tax dollars pay for that, is a good thing.
 

maxparrish

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You ignored the law, quite aside from having an erroneous understanding of the role of the legal principle "Ignorance is no excuse".

The law, from your source at Volokh:


So a defendant may have knowledge of conduct, but the defendant didn't necessarily know the conduct was "a committed and completed felony". The defendant must have had knowledge of "the fact" of a "committed felony". Therefore if they don't know what makes the observed conduct at least unlawful and possibly felonious, they are not guilty.

Second, "ignorance" is not an excuse, however does it make one guilty either. The misprision law requires knowledge of a felony as a necessary but not sufficient proof of its violation. The law also requires the defendant to have failed to notify authorities of their knowledge of a felony, and to have taken affirmative steps to conceal the crime of the principle. Meaning you also have to show that Donald Jr. and Ivanka knew a specific conduct was a crime AND did something to conceal it.

And you might have noticed, by the way, that in all the examples provided by Volokh, every guilty person was aware that the activity being concealed was unlawful, if not a felony.

  • The only way one can incriminate oneself by reporting another's behavior is if one is indeed party to the actus reus. Misprision of felony is the crime of not reporting someone else's, not one's own, criminal behavior. If one wasn't party to the actus reus but one knows of it, one has a duty to report it.

Wrong again. A person needn't actually be guilty of being a party to law breaking, the 5th protects any person who could reasonably fear incrimination. Again, read your own Volokh link.

...
  • If one was among the WH personnel who were party to/aware of M. Cohen's "socialization" of his untruthful testimony before Congress and was also aware of the events about which he was going to testify, one knew/knows damn well the man lied and planned to lie to Congress
  • If the parties didn't in 2016 know the acts involved were criminal, at this point, given all the publicity of events such as the Stormy Daniels NDA, the McDougal "catch and kill" scheme, and the Trump tower meeting, they surely have reason to suspect the behavior of which they are aware be criminal.

And yet, the statute still requires FOUR elements for conviction, which your bloviations of outrage dodge. Cohen was a sleeze-ball, an untrustworthy, and a routine liar. BUT unless Donald or Ivanaka had specific knowledge of the commission of a specific felony AND took specific action to conceal it, you might as well be yelling at clouds.

Increasingly, we notice in the US apathy, and in some instances hostility, to the idea of volunteering aid to LEOs. Misprision of felony statutes ... inspire citizens to perform their affirmative duty to aid and abet the efficient detection and prosecution of crime. ... their civic responsibility to assist LEOs by reporting activity that any reasonable person would at least suspect be unlawful.

I have no problem with citizens voluntarily reporting conduct that they reasonably believe to be a significant crime, and I especially encourage reporting of crimes of violence and fraud against individual innocents. However, I don't encourage people to report victimless crimes, paperwork errors, or crimes that should not be criminal. And no, I don't support any law that coerces us to turn in our friends, wives and children because they grow 5 pots of marijuana or pocket tips as a waitress.

However, your affection for a legalized brown shirted system to report your fellow citizen is duly noted.
 
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Xelor

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The law, from your source at Volokh:
The federal definition of misprision requires that:
(1) the principal committed and completed the felony alleged;
(2) the defendant had knowledge of the fact;
(3) the defendant failed to notify the authorities; and
(4) the defendant took affirmative steps to conceal the crime of the principal.
Preface:
18 U.S. Code § 4 - Misprision of felony (MoF)
Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.​


  • [*=1]Related/similar offense:

    • [*=1]Accessory After the Fact -- Doing something in order to prevent or delay someone’s apprehension, and they usually cover concealing or destroying evidence.
5th Amendment Exception:

  • US v. Weekly --> A person knowledgeable about a crime lied about her status vis-a-vis the crime. The court ruled that one's own false statements eliminate the legitimacy of one's claim that the 5th negates one's lawful requirement to report a crime of which one is aware.

Main Post:
What are you asserting? My point in the OP is that publicly available information suggests that MoF is a crime to which several parties to the activities Trump and his cohorts undertook may be guilty, and because the public info we have suggests that, it's worth "brushing up" on one's understanding of MoF.

Indulging your comments...

Re: criterion #4:
  • "The court of appeals concluded that this concealment-by-telling-lies was...misprision."
  • "[The court also] concluded that the [MoF] statute isn’t limited to statements 'made to federal authorities.'"

Do we have publicly known-of instances of folks' lying about their interactions with Trump?​


  • [*=1]Yes.
Had the parties knowledge of or have reason to know of the criminal nature of the behaviors of which we, the public, are of late coming also to know of?​


  • [*=1]Yes.

    • [*=1]The people in Trump's "inner orbit" are well-enough educated to recognize criminal behavior of the sort being investigated.
      [*=1]The "inner orbit" people had the means to know that the Daniels payment or the Trump Moscow deal was illegal. Four people, besides Trump Sr., had Trump Org. disbursement authority: Eric, Ivanka, Don Jr., and Allen Weisselberg. The Russia sanctions were common knowledge.

    [*=1]What behaviors? For starters the illegal Cohen campaign contribution -- $130K exceeds contribution limits and it wasn't reported as a contribution Trump made and it's an in-kind contribution to abet the campaign.
Criterion #4 alone, assuming the parties aren't themselves didn't actually behave criminally, is enough to hazard that MoF might be an extant behavior among "team Trump" personnel, and not just his kids. What is there to say?

  • They lied to avoid incriminating themselves? If so, that'd make them criminals.
  • They lied to avoid incriminating someone else? If so, potential MoF exists.
  • Nevermind that one could also simply keep mum, or directly declare the 5th, and thereby not lie. I mean, really...It's just not that hard to not lie.

What about criterion #3? Of whom have you heard in the close-in Trump orbit cooperating with LEO personnel? Several folks, but not the Trumps, and Trump's circle of principals just doesn't and didn't have that many people in it, and one of the key persons in that orbit, Michael Cohen, has already been convicted of a felonious election law violation. Moreover, in his allocution and sentencing, he implicated Trump Sr. and prosecutors have tacitly testified in court that they have probative evidence showing the verity of his claims, which are also theirs (see also: Background 1 and SDNY Sentencing Memo) -- Cohen's lawyers couldn't let Cohen, in his allocation statements, attest to stuff they know isn't true. (AFAIK, Cohen's wasn't an Alford plea.)

As for criteria #1 and #2, the above militates for thinking that the Trump-orbit principals had knowledge of there having been criminal activity that occurred and that they weren't expressly party to, but knew of.

So, as I noted in my OP, is it reasonable to think a MoF charge may be duly levied against one or more team-Trump principals? Yes.
 

maxparrish

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Preface:
18 U.S. Code § 4 - Misprision of felony (MoF)
Whoever, having knowledge...

5th Amendment Exception: US v. Weekly --> A person knowledgeable about a crime lied about her status vis-a-vis the crime. The court ruled that one's own false statements eliminate the legitimacy of one's claim that the 5th negates one's lawful requirement to report a crime of which one is aware.​


You clutter us with information without any explanation of its relevancy to points made. Nothing in your quote of law in 18 U.S. Code (etc.) is inconsistent to the case law requirements as cited by YOUR SOURCE (Volokh). Volokh quoted the controlling case law: United States v. Baumgartner (https://www.govinfo.gov/content/pkg/USCOURTS-ca6-13-05580/pdf/USCOURTS-ca6-13-05580-0.pdf)

18 U.S.C. § 4 provides: “Whoever,..." ...
This court has construed the statute as being comprised of four elements, each of which must be
proven beyond a reasonable doubt to sustain a conviction against a defendant: “(1) the principal
committed and completed the felony alleged; (2) the defendant had knowledge of the fact; (3) the
defendant failed to notify the authorities; and (4) the defendant took affirmative steps to conceal
the crime of the principal.” United States v. Goldberg, 862 F.2d 101, 104 (6th Cir. 1988).
“Mere knowledge of the commission of the felony or failure to report the felony, standing alone,
is insufficient to support a conviction for a misprision of a felony.”

In regards to the 5th, yet another red herring based on a fiction. You don't quote of what was actually in the opinion, so I searched your link for "fifth" "incrimination" and "amendment" - nothing. The only amendment discussed in another case with Weekly the 6th. Fake cite, eh?

What are you asserting? My point in the OP is that publicly available information suggests that MoF is a crime to which several parties to the activities Trump and his cohorts undertook may be guilty, and because the public info we have suggests that, it's worth "brushing up" on one's understanding of MoF.

Re: criterion #4:

Do we have publicly known-of instances of folks' lying about their interactions with Trump?
Yes.

Had the parties knowledge of or have reason to know of the criminal nature of the behaviors of which we, the public, are of late coming also to know of?
Yes.

The people in Trump's "inner orbit" are well-enough educated to recognize criminal behavior of the sort being investigated. The "inner orbit" people had the means to know that the Daniels payment or the Trump Moscow deal was illegal. Four people, besides Trump Sr., had Trump Org. disbursement authority: Eric, Ivanka, Don Jr., and Allen Weisselberg. The Russia sanctions were common knowledge (yada...yada...yada).b

First, you specifically suggest the Donald Jr. and Ivanka knew of Cohen's crimes thereby making themselves chargeable under MofF. Then you made unsupported assumptions about their involvement, knowledge of a felony, and lies. I've amply demonstrated why your comments are nothing more than yelling at clouds. Assumptions built on bias, shaped by delusions, and packaged in an impossible to follow Oliver Stone thriller are nothing burgers.

Second, your shot-gunning of vague characterizations and collective generalities are utterly meaningless unless you boil it down to satisfying ALL FOUR elements for a SPECIFIC defendant on a SPECIFIC felony. Do we know of anyone else lying to federal investigators other than those already convicted? NO. Do we know of anyone else who KNEW of the fact of a felony by another, concealed it by lying to investigators, and failed to report it. NO. Do we know if, under-election law these events EVEN qualify as a violation of election law? NO.

Last, we DO KNOW that one defendant's plea of guilty on a charge doesn't make another person guilty, NOR does it confirm that the offense exists under the law. As anyone should know, faced with 65 years in prison of five counts of tax evasion (and reputedly 13 more than could have been filed) a sane defendant is not going to risk that (especially if he knows he is guilty), EVEN IF he thinks that on one charge of an election law violation he is innocent.

His lawyers are sane too, and I am sure they recommended he whistle the tune that the feds wanted to hear in return for a plea deal. And finally, a judge is not going to dispute the interpretation of a law that the defense has already conceded in order to get that plea deal.

Cherry picking suspensions of individual elements being violated by different people won't cut it; you need to show the plausible and specific, not hair pulling over the collected sins of those "Trump people".​
 
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Xelor

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I still don't know what any of your remarks have to do with my OP's theme/rhetorical purpose: "brushing up on your comprehension of jurisprudential theory as goes misprision of felony may be a useful undertaking if one cares to be prepared to for what may come." Nothing you've provided suggests there's no basis for thinking MoF isn't a plausible charge Trump and his cohorts may face. In contrast, I don't expect any of them will be subject to, say, "grand theft - auto" or a host of other charges.

You clutter us with information without any explanation of its relevancy to points made. .....

Well, that's true, for I'm not here to be didactic and spell out every last detail. That's what one gets when one is in a classroom, and I'm not entreating to here be anyone's instructor.


In regards to the 5th, yet another red herring based on a fiction. You don't quote of what was actually in the opinion, so I searched your link for "fifth" "incrimination" and "amendment" - nothing. The only amendment discussed in another case with Weekly the 6th. Fake cite, eh?
Having said I'm not of a mind to spell out every last detail, I don't mind your stating you don't see the correlation between the content in the summary to which I linked and my sentence long synopsis of the relevant 5th Amendment portion of it.

You'll find the clarification you want here:
"When the FBI contacted her on the morning of January 4, defendant had two lawful options. First, she could have chosen to say nothing, thereby preserving her 5th Amendment privilege...Second, she could have chosen to respond truthfully to the FBI's questions. Instead, Weekley lied. But lying was not a lawful alternative for her [because her] false statements, in and of themselves, constituted an affirmative act of concealment sufficient to support a misprision conviction. ... Moreover, defendant's knowing false statements to law enforcement authorities on the morning of January 4, 2005 negate her ability to invoke the [5th] as a defense to the ensuing misprision prosecution.

"Such truthful statements would likely have stymied any misprision prosecution against her, inasmuch as truthful cooperation in the interview would have rendered it problematic for the Government to establish both the "failure to report" and the concealment prongs of an [Mof] violation.

"In the words of Justice Scalia, "[w]hether or not the predicament of the wrongdoer run to ground tugs at the heartstrings, neither the text nor the spirit of the [5th] confers a privilege to lie."
MoF isn't a central element of Weekly; it's an additional factor upon which the Court ruled/opined regarding a motion.

Red:
It's possible that I can mistakenly cite or link-to "this" reference when I should've or intended to cite/link-to "that" one. I don't appreciate your intimation that I faked a reference.


Volokh quoted the controlling case law: United States v. Baumgartner (https://www.govinfo.gov/content/pkg/...13-05580-0.pdf)
How'd you decide that's Volokh's assertion? His essay is but an illustration of a MoF matter and the analysis applicable to that case. Moreover, one'll note too that my OP includes Volokh's essay as but an illustration of a recent MoF matter:
If they are, they will be but recent folks charged with that crime:​

The only reason I chose that essay to illustrate a recent MoF matter is because it had a "layman's" discussion accompanying it. There are, however, others, Olson being one that comes to mind as I write this.

There is no single "controlling" case that sets case law; multiple cases establish precedent with regard to various aspects of MoF matters. That is evident from, if nothing else, the multiple matters cited in the Baumgartner document to which you linked. The Goldberg and Williams being but two. The document is replete with others.

Lastly, you have gall to chide my references when post after post in this discussion, you've summarily declared one thing after another, not citing any reference for it.
  • Post 13: "[T]he 5th amendment does not permit the government to charge you a concealing (not reporting) a crime if they could reasonably incriminating themselves in the crime."
  • Post 15: "A person needn't actually be guilty of being a party to law breaking, the 5th protects any person who could reasonably fear incrimination. Again, read your own Volokh link."
 
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