I’m not a Trump fan, so I really enjoy it when Trump is having a bad day, but there are things about the convictions of Cohen and Manafort that bother me.

Political campaigns are mostly free speech, which should be well-protected by the First Amendment, but campaign finance laws attempt to control the money that pays for producing or disseminating this speech. This requires a lot of weird rules, and the results can be bizarre.

For example, the media is exempt, because that’s clearly freedom of the press. So you and I can endorse candidates on our blogs and tell people to vote for them in post after post with little fear of campaign finance laws. However, if you and I buy ads on each other’s blogs saying the same thing, then those are considered independent expenditures, which don’t count as direct campaign contributions, but which are nevertheless required to contain legally mandated disclaimers. (I think they also have to be reported, but I’m not sure because election laws are really complicated.)

There’s an obvious loophole here. If I wanted to donate a million dollars to a candidate, that would be prohibited because it greatly exceeds the limit for campaign contributions. But what if I asked the campaign to tell me how they would spend another million dollars if they had it, and then I went and spent the money myself on exactly what they said they would spend it on? The money never passed through the campaign’s accounts, so it’s not a contribution, right?

Campaign finance regulators have already thought of that trick and headed it off: It’s illegal to spend money to benefit a candidate if you coordinate that expenditure with the campaign. Or to put it another way, if you’re spending money to help a political campaign, it’s illegal to talk about it with the people you’re trying to help. That’s kind of a weird requirement. We’ve gone from free speech to a crime that includes speech as an element.

What if I don’t spend any money? What if I own a bus company and I let the campaign use my buses for free? Campaign finance rules call that an in-kind contribution, and it has to be treated as if it were a financial contribution in the amount of the value of the good or service contributed.

Okay, so what if my best friend Leo is the campaign coordinator, and I pick him up at the airport and then we go have lunch at a restaurant that’s next door to the hall where the candidate is having a rally later that evening? If I’m driving Leo to the restaurant because he’s a campaign staffer, that’s an in-kind contribution. But if I’m driving Leo to the restaurant because I want to have lunch with my friend, that’s not a campaign contribution. It all depends on what reason I have in my head for giving Leo a ride.

That’s pretty weird, right?

It reminds me of a trap in gun laws where it’s legal to buy a gun (if you meet all the qualifications), and it’s legal to sell that gun later (if the buyer meets all the qualifications), but it’s a crime to buy a gun knowing that you will sell it to a specific person later. You can buy the gun intending to keep it for yourself, only to change your mind and sell it later. Or you can buy the gun intending to give it to a specific person as a gift. You can even buy the gun intending to sell it later to some unknown future buyer. But if you know the identity of the person you’re going to sell it to at the time that you buy it, you’re breaking the law. Having that person’s name in your thoughts is an element of the crime.

Cohen paying off Trump’s mistresses leads to similar issues. If he’s paying them off so that Melania doesn’t find out about them, that’s completely legal. But if he’s paying them off to avoid bad press that could harm Trump’s presidential campaign, that’s against the law. It’s easy to imagine Trump and Cohen getting together for one of their regular paying-off-the-mistresses meetings, and everything is going just fine until Trump says, “Hey, this could also help my campaign!” and Cohen says, “Yeah,” and now they’re committing a crime.

There’s nothing unusual about this — that sort of legal logic is well established, and people are prosecuted for it all the time — but you gotta admit it’s kind of a weird way to commit a crime.

Manafort was convicted of more tangible crimes, including five counts of tax fraud and two counts of bank fraud. But he was also found not guilty of 10 other charges. And here’s the part that makes me uneasy: Those 10 acquittals aren’t going to matter much when it comes to sentencing.

That’s because federal sentencing laws allow judges to take a very broad view of the defendant’s conduct when deciding how long to send them to jail. Almost any conduct that led to their appearance before the court can be taken into account for sentencing purposes, including conduct for which a jury has found them not guilty.

That’s one of those bizarre features of that our criminal justice system — civil forfeiture is another — where people who’ve never heard of it tell me I’m stupid because what I’m describing just wouldn’t be allowed. But it is.

So, those 10 acquittals aren’t going to count for much at Manafort’s sentencing because the judge can ignore them and punish Manafort for all the things he was accused of, regardless of what the jury decided.

It ruins my enjoyment of Cohen and Manafort’s downfall when the mechanism used to bring them down seems so petty and corrupt.

Like everybody else, I’ve been trying to make sense of the Las Vegas shooting, in which a 64-year-old guy named Stephen Paddock apparently opened fire on a crowd of 22,000 country music festival attendees from his 32nd-floor room in the Mandalay Bay hotel, killing 59 people and injuring hundreds more.

One of the confusing things about this horrible incident is that from what we know about him so far, Paddock doesn’t seem like the kind of person who would do something like this. He went through a lot of trouble to kill as many people as he did, so you’d think he must have done something else on a smaller scale first to think this would be worth the effort, and yet according to reports he had no criminal record, no extremist political views, no trouble with his neighbors, and no obvious prior signs of mental illness. That’s strange because you don’t go from being a normal person to being a mass murderer overnight without a period of transition. The idea that people “just snap” is more myth than reality. It takes time to become the kind of person who would commit this kind of atrocity. So why weren’t there any signs?

I suppose one possible explanation is that Stephen Paddock was not the shooter: The real shooter lured him (and his guns) to the hotel, shot him, and then opened fire on the crowd, escaping before the police arrived to find a “convenient” murder-suicide scenario. I don’t actually believe this is what happened. It’s a movie plot, not real life, and unless the perpetrator is a Moriarty-level criminal mastermind, it would also leave a ton of evidence that would be easy for the police to discover. It’s even less likely than just snapping.

(Also, recent reporting about the incident rules it out.)

Another possibility is that Paddock had a brain tumor that caused a sudden, violent change of behavior. No doubt this crossed my mind because I’m familiar with the case of Charles Whitman, who similarly shot at a crowd from a high perch, at the University of Texas (Austin) in 1966, and was discovered at autopsy to have a brain tumor which some neurologists have speculated may have contributed to his behavior. Paddock’s behavior could also be explained by some other form of brain damage, perhaps from a stroke or a traumatic head injury or some other cause.

The truth is, the most likely explanation for the conflict between Paddock’s normal life and its violent end is probably much more prosaic. It’s most likely the same explanation as for every other murderer who is described by acquaintances as “quiet”: We’ve only heard from people who didn’t know him very well.

When something like this happens, it’s easy for the press to find the killer’s neighbors and colleagues, but few of them are likely to know anything relevant. As with most of us, a lot of people may have known him, but few people knew him really well. The media, and maybe the police, just haven’t found people who know, if they even exist.

I’ve been watching the reaction on Twitter to President Trump’s pardoning of former Maricopa County Sheriff Joe Arpaio. Arpaio is a despicable authoritarian bigot, who I’ve written about several times previously. He is famous, and famously proud, of how tough he was on the prisoners in his custody. He liked seeing them mistreated and humiliated, often in very unpleasant ways. I don’t know if he actually enjoyed it when his prisoners died, but a bunch of them have died, often under questionable circumstances, and Arpaio has never shown an ounce of human sorrow.

I was most struck by the reaction from Mistress Matisse:

Now, this next part is probably the sort of thing that only seems profound at 3:00 in the morning (when I started writing this), but bear with me… What really got me thinking is that Mistress Matisse and Joe Arpaio have something in common: They both like to hurt people.

As you might have guessed from the name, Mistress Matisse is a professional dominatrix. She literally hurts people for a living. And if you follow her Twitter feed (@mistressmatisse), you’ll see she enjoys her work. Oh, I’m sure there are days where she’s like “Oh God, I can’t wait to veg out in front of the TV once I finish sticking needles into this guy’s penis…”, but for the most part, she seems to have found satisfying employment. She hurts people, and she’s good at it.

Nevertheless, Mistress Matisse is pissed about Joe Arpaio, because of course, the difference between Mistress Matisse hurting people and Joe Arpaio hurting people is consent. And consent makes all the difference in the world.

Mistress Matisse posts descriptions and photos of the some of the things she does to her clients and, honestly, I couldn’t take that. If she tried to do some of those things to me without my consent, I would resist, violently if necessary. But her clients not only give their consent, they actually pay her to do those things.

Yet if I’m ever in Seattle and I happen to run into Mistress Matisse, I wouldn’t be the least bit concerned about her pain-causing skills. I don’t pretend to know or understand her very well, but I’ve read enough of her writings to know that she thinks very carefully about issues of consent. She doesn’t want to hurt people against their will.

Sheriff Joe Arpaio, on the other hand, doesn’t give a shit about consent. He’s a thug, and he had an army of deputy thugs working for him. I would be very nervous running into him in a situation he controlled. If he could find a way, he wouldn’t hesitate to have a critic like me thrown in a cage in the 110 degree heat of the Arizona sun.

I don’t have any profound point here. And I certainly hope this is not coming across as “Joe Arpaio is even worse person than a professional dominatrix,” because that would be insulting to the pro dom community. The juxtaposition between Mistress Matisse and Joe Arpaio just struck me as a stark illustration of the importance of consent.

As a someone who leans libertarian, I place a lot of importance in the concept of consent. And I regard the absence of consent as a defining requirement for legitimately designating something as a crime: Sex without consent is rape, commerce without consent is theft, and inflicting pain without consent is torture.

Lack of consent alone is not enough to make something a crime, but if there is full consent, then it should never be a crime. As far as I’m concerned, Mistress Matisse is a successful and valued practitioner of an unusual art. Nothing to worry about.

Joe Arpaio, on the other hand, hurt a lot of people without their consent. Obviously, detaining and punishing criminals without their consent is a necessary part of criminal justice, but the lack of consent also makes it especially important that the criminal justice system is subject to strict requirements and oversight. Arpaio had little of that, and he and his deputies went way beyond what was necessary to keep the peace.

It’s particularly relevant to the contrast with Mistress Matisse that Arpaio jailed consensual sex workers and subjected them to harsh conditions, including one particularly gruesome case in which his guards tortured and killed a sex worker. Yet that’s just one of many deaths and many more prisoners subject to torturous conditions. Arpaio was one of the most monstrous figures in modern American law enforcement.

There’s something very wrong, some kind of complete inversion of the meaning of consent, when we have governments that want to throw people like Mistress Matisse in jails that are run by people like Joe Arpaio.

A hypothetical question for my criminal law readers (or anyone else who has ideas): What should I do if I inadvertently come into possession of contraband?

To make it more concrete, suppose I’m walking down the street, minding my own business, when a stranger confronts me, thrusts a duffle bag into my hands, and runs away. When I open a duffle bag, I find a tightly wrapped kilo of cocaine, a pile of child pornography, and a MAC-10 submachinegun. As I look up, I notice several police officers coming down the street, obviously searching for someone or something. They haven’t noticed me yet. What should I do next?

As a good citizen who has come across evidence of a crime, it seems like I should probably turn all of this in to the police. But if I walk up to one of the cops and show him the bag, I’m essentially confessing to possession of the contraband items and proving it with physical evidence. My possession was unintentional, and that might make for a winning defense at trial, but I’m not so sure it would keep me from being arrested. This seems like a risky choice.

If I had a lot of time to decide what to do, I could contact a criminal defense lawyer to help me. I imagine he could probably make a deal where I don’t get arrested for turning over useful evidence of a crime. Or maybe there’s some other solution.

On the other hand, if I didn’t have the time to talk to a lawyer, I think the safest move would be tossing the duffle bag into the nearest dumpster and hoping that nobody saw me with it. That seems like the simplest way to get out of a sticky situation, but is it? Do I have a legal obligation to report the contents of the duffle bag to the police? After all, I saw the other guy possess it, so I’m a witness to a crime, and I’m also in possession of physical evidence. If I throw away the duffle bag, am I concealing a crime?

My reason for asking this is because of a New York Times opinion piece in which Doctor Sandeep Jauhar describes an incident in which he feels he protected doctor-patient confidentiality:

I once took care of a business executive in the emergency room who had hired call girls during a weekend drug binge. When he saw a police officer outside his room, he quietly handed me an envelope containing a large amount of white powder. I wasn’t sure what to do with it, so I discarded it. For the next several hours the patient eyed me suspiciously, probably wondering whether I had ratted him out. But it never occurred to me to do so.

Professor Steven Lubet from the Pritzker School of Law at Northwestern takes issue:

Hiding evidence of a crime isn’t confidentiality; it’s obstruction of justice. There is nothing about one’s status as a physician — or a lawyer, for that matter — that requires or excuses the possession or concealment of contraband.

Jack Marshall also disagrees:

Confidentiality is one thing, assisting in a crime is another. The Hippocratic Oath says “What I may see or hear in the course of treatment, I will keep to myself.” That only means, however, that doctors who learn about criminal activity a patient may be involved in is bound not to report it (lawyers have the same obligation). Jauhar did more than not report criminal activity; he participated in it. He crossed the line by disposing of contraband.

There’s a side issue here, because an unidentified white powder in an envelope doesn’t prove anything. To this day, Dr. Jauhar has no idea what was really in that envelope. And it doesn’t matter that a cop might have arrested the patient upon seeing that powder without any proof that it was an illegal substance. Nor does it matter that a judge might have held him in jail for weeks before getting a lab report identifying the powder as an illicit substance. The epistemological failings of the criminal justice system have little relevance to medical ethics.

The main question here is what should Doctor Jauhar have done? Marshall says he “crossed the line by disposing of contraband” but then doesn’t explain what he would have done if he had been in Jauhar’s place. Lubet also fails to describe what the doctor should have done. He mentions the problem, but he doesn’t seem to recognize it: “There is nothing about one’s status as a physician — or a lawyer, for that matter — that requires or excuses the possession or concealment of contraband.” When it is illegal to both possess and cease to possess something, that doesn’t seem like very good lawmaking.

Are Lubet and Marshall saying that if they had been in the doctor’s place that they would have walked over to the nearest cop and said, “I just got this from a patient and I thought you should see it,” and then handed him the envelope full of (probably) cocaine, taking it on faith that he wouldn’t get arrested?

It doesn’t work to say they wouldn’t have taken the envelope in the first place, because how could they know what was in it until they looked inside? And please don’t say that the doctor should have handed the envelope back to the patient once he saw what was in it, no unless you want to explain why giving illegal drugs to a patient is more ethical than discarding them.

You might think it’s crazy to believe the police would arrest a doctor for turning over drugs that he found on a patient, but just because the police might not arrest him for it doesn’t mean it’s not a crime. And if it is a crime, they might arrest him for it. It wouldn’t be the first time police decided to arrest someone now and sort out the details later.

I admit that I haven’t heard of any doctors being charged in situations like this, but it does happen to other people. I have read news reports of security guards at music venues taking illegal drugs off concertgoers and then getting arrested for possessing illegal drugs. So unless there’s an explicit exception in the law for doctors in this situation, it seems to me that Dr. Jauhar was in danger of getting arrested, and disposing of the envelope was the prudent thing to do. (This is not legal advice, but it’s very, very practical advice.)

The basic problem I’m having with this whole scenario is that mere possession of contraband is inherently a victimless crime that harms no one. That’s not just my opinion, it’s physics. Granted, there are some substances which can actively endanger innocent people if not contained properly — radioactive materials, unstable explosives, poisonous gases, biosafety level 4 pathogens — but a big pile of cocaine or child pornography or guns does not hurt innocent people merely by existing. And possessing that pile of contraband doesn’t mean you’re hurting people either.

Further proof that crimes of possession are not based on reality comes from the fact that members of the criminal justice system routinely do the same thing as the people they are arresting and prosecuting. If a cop finds a baggie of cocaine in your pocket, he’ll arrest you for possession and then take the baggie of cocaine. That means he’s now in possession of a controlled substance, and yet somehow that’s not a problem. Depending on the nature of the contraband and the standard practices of each court system, the contraband could also end up in the hands of the prosecutor, the defense lawyer, the judge, and even the jury. And apparently none of those people are committing a crime.

(Actually, that might not be the case. Legislatures are notorious for not including exceptions for law enforcement activities in the criminal statutes, meaning that in some states things like police sting operations, SWAT raids, and even death penalty executions are technically crimes. Another way to put that is that police and prosecutors sometimes break the law in the course of their jobs, but nobody charges them with crimes.)

We criminalize the harmless possession of contraband because it’s a useful proxy for other crimes that are more difficult to police. It’s a lot harder to catch somebody smoking pot in their own home than it is to catch them with pot in their pocket as they walk home. It’s a lot harder to catch an armed robber than it is to catch someone in possession of an illegal gun. It’s a lot harder to catch graffiti artists tagging a building than it is to catch them buying spay paint. All other things being equal, police and prosecutors prefer to go after crimes that are easier to prove.

Unfortunately, we also criminalized possession of various contraband goods out of a desire to “send a message” that some related behavior is bad, or because the people enforcing the laws are confused enough to believe that there really is something harmful about possession of contraband.

And so our criminal justice system keeps doing stupid things like arresting people for child pornography images on computers that they possess on behalf of someone else, or arresting people for “residue,” or intercepting packages of drugs in the mail, delivering them to the recipient on the label, and then arresting that person for possessing the drugs that they just gave him.

Possession is often kind of a stupid crime, stupidly enforced. And don’t get me started on crimes based on constructive possession…

I’ve always thought that “possession” was an odd type of crime. Legal possession is such a passive concept. It doesn’t seem right to even call it a behavior. I’m pretty sure you can be guilty of possessing contraband even when you are literally asleep in bed. That just doesn’t sound harmful enough to justify punishment.

And consider what happens if the police bust you for possession of marijuana: The police will confiscate your stash. At that point they are the ones who are in possession of marijuana, aren’t they? Why is it that it was illegal when you did it, but it’s legal when they do it?

Because the law says so, I guess, but why? Cops can’t legally break into someone’s house and steal their jewelry or force women into having sex with them, so why is possession different? What’s the principle here? Clearly, since cops are allowed to do it, possession of marijuana doesn’t actually cause whatever social harm the law is seeking to prevent. So why is possession still illegal?

I think the answer has to be that possession is a proxy for the behavior that causes actual harm. In the case of marijuana, that would be the harm caused by smoking marijuana. (As a libertarian, I don’t see any net social harm from smoking marijuana, but let’s ignore that for the sake of argument.)

The problem — for the drug warriors, anyway — is that it’s hard to catch people smoking marijuana because it only takes a few minutes and they can do it in hiding. So the legislatures have moved backwards on the causal chain to criminalize a precursor act that is easier to detect: People generally possess marijuana for a lot longer than they smoke it, and they often do so in relatively public places where police can observe them, question them, and search them. Thus criminalizing the possession of marijuana serves as an imperfect way to attack the problem of smoking marijuana, at the cost of criminalizing behavior that is not really harmful.

This explains why it’s not a crime for cops to possess marijuana after a bust: They aren’t going to smoke it later.

Other crimes of possession can also be justified by their relation to harmful acts: We criminalize felons possessing guns because we don’t want them murdering people, we criminalize young people possessing cans of spray paint because we don’t want them vandalizing buildings with graffiti, and we criminalize possessing open containers of booze in cars because we don’t want drivers to drink.

The exact conditions under which it’s okay to punish people for harmless behavior in the name of stopping a related harmful act is a moral and ethical question worthy of exploration, but for now I’d like to look at a more practical problem. Because the behavior that is illegal is distinct from the behavior that is harmful, scenarios can arise where the law doesn’t really make sense.

For example, it’s illegal to possess child pornography. Clearly, mere possession is harmless, as proven by the fact that police and prosecutors can possess child pornography in the process of sending people to jail for it. Possession of child porn is nevertheless illegal because we don’t want people to look at it.

Houston criminal defense lawyer Mark Bennett gives an example of how this can lead to a bizarre dilemma:

Suppose that a client comes to you with a problem: he has a computer hard drive full of child pornography, and he wants to know what to do with it. What do you tell him?

It’s illegal for him to continue possessing the images. So you can’t advise him to do nothing (and keep breaking the law).

The smart thing for him to do would be to destroy the hard drive (if I could, I would recommend swisscheesing it with a drill press).

But tampering with evidence is illegal under both Texas and federal law.

This is not just a hypothetical situation. At least one lawyer has been prosecuted for destroying child pornography on a client’s computer.

Lawyers wouldn’t be facing this kind of conundrum if it weren’t for the crime/harm separation that is inherent in possession laws. If possession of child pornography wasn’t a crime, then deleting it from the hard drive wouldn’t be destruction of evidence of a crime. It would arguably even be crime prevention, since deleting it prevents people from looking at it, just as flushing marijuana down the toilet prevents people from smoking it.

(I’ve never heard of someone being charged with destroying evidence of pot possession by smoking it, but people do get charged with tampering with evidence for eating drugs when the cops pull them over.)

On the other hand if the crime and harm of possessing child pornography were linked, if mere possession somehow did cause actual harm, then deleting the pornography from the drive would be stopping a crime in progress. The lawyer would be a crime fighter.

If you have trouble thinking about possession being harmful in that way, try imagining it this way: The lawyer visits the client’s house, but instead of learning that the client has child pornography, he discovers that the client has an actual child, locked in a cage in the basement. Alarmed, the lawyer frees the child, who immediately runs off. The child is confused, however, and is never able to identify his captor or the location he was held. By releasing the child, the lawyer has in a sense obstructed the ability of the police to charge his client for kidnapping, yet no sane person would argue that he shouldn’t have done it.

I’m not going so far as to say that possession should never be a crime, but the fact that possession crimes don’t work that way is a sign that possession is a strange kind of crime, one where stopping the crime is also a crime. I’m not sure how to fix this, but I’m pretty sure it’s broken.