More on the New York Trump Case and the First Amendment

A reply to Steve.

I thank Steve for his clarification below about his theory of why Trump might have a First Amendment defense in the New York case.  As I understand it, Steve's argument can be understood as being about the phrase "another crime" in New York Penal Law 17.50:

A person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.

Steve's argument is that the element of concealing the commission of "another crime" has to refer to an act that doesn't just satisfy the elements of a criminal statute, but that, interpreted independently, is a crime that satisfies independent First Amendment review.  And so he argues that, if the jury identifies those elements of another criminal law as having been satisfied, that is not "another crime" if there would be a First Amendment defense to liability for those elements independently — either under current law, or, if needed, on a better understanding of law as changed by the Supreme Court on appeal from Trump's conviction by overturning the Court's precedent.

This is an interesting argument, and I confess it is not what I thought Steve was arguing in his first post.  So I certainly appreciate the clarification, and I apologize to Steve for the misunderstanding.  One thought I have in response is that there's a pretty interesting interpretive question raised by Steve's argument.  When the New York legislature uses the phrase "another crime" as part of an element, does "another crime" mean the elements of some other criminal law, or is "another crime" more of an independent constitutional concept meaning the elements of some other criminal law only to the extent that the elements could be a free-standing criminal offense without violating the Constitution?

I take it Steve believes the latter. That might be right.  But I'm not entirely sure about that.  Off the top of my head, I would think it's a question of statutory interpretation rather than the  constitutional law of elements of crimes.  Offenses have to satisfy the First Amendment as a whole, obviously, but I don't think there is a constitutional problem with a particular element of a crime involving First Amendment protected activities. For example, if a legislature says that it's a crime to punch someone during a protest, the fact that the protest is protected by the First Amendment doesn't mean that punching someone during a protest would be.  If I'm right about that, then I would think this ends up an interesting question of statutory interpretation assuming that Steve is right about the First Amendment issue (either under current law or possible future law).

I poked around on Westlaw briefly to see if I could find New York cases on this question, but I didn't come across anything useful. It's a hard question to research, as the relevant terms end up bringing up a lot of unrelated cases. But thanks again to Steve for the clarification, and I'd be interested to know if others make more headway on the statutory question than I did.

Comments

[ah....Clem]

This reminds me of the famous Clinton quote :

It depends on what the meaning of the word "is" is.

[Sam Bankman-Fried]

I know I didn’t consider a BJ to be “sex”. In American Pie one of the characters got a BJ but the “sex pact” was still necessary because he was still a virgin. It’s the job of plaintiff’s counsel to ask the right questions and none of the litigation I’ve been involved in ends with us calling the sheriff to arrest someone that lied during a civil deposition!??

[Mr. Bumble]

He said, he said. It is never ending.

[SRG2]

Indeed, but Prof Kerr does not give the impression he's angling for a slot in a second Biden admin.

[dwb68]

The antisemitic mob on the left will occupy from now to November, ensuring that there will be no 2nd Biden administration.

[Noscitur a sociis]

Then he should try again in 2028!

[Dr. Ed 2]

And even if there is, Team Hamas is going to swing a lot of Senate races and I suspect a few House ones as well.

This isn't going over well in Middle America, and it particularly isn't going over well in the Archie Bunker households where they may tell a few antisemitic jokes but this crap is seen as just plain wrong.

[Rev. Arthur L. Kirkland]

What will the omnibigoted yokels on the right be doing.

[Rev. Arthur L. Kirkland]

And the bigots on the right will continue to make support for Israel's indefensible right-wing belligerence a left-right divider in American politics, costing Israel the political, military, and economic skirts it has been hiding behind for decades.

Watching that develop -- Israel operating without American support -- should be interesting, at least for a brief period.

[Lee Moore]

I don’t think punching someone during a protest is a very good hypo. That does not suggest that attending a protest is itself a crime.

Suppose New York makes jaywalking a misdemeanour. But it becomes a felony if you jaywalk “while committing another crime.” And suppose NY has another law which makes being a Catholic priest a misdemeanour.

If you jaywalk while you are a Catholic priest are you committing a felony ?

It seems unlikely to me, since the “other crime” which is supposed to tip you into the felony box may be sitting on the books in NY, but it can’t actually be a crime. It’s one of those things that the federal constitution forbids Congress and now also the states from making a crime.

Thus it is impossible to commit a crime of being a Catholic priest, even though NY has such a crime on its books. And thus being a priest is not a misdemeanour which can tip your jaywalking into being Z felony.

[Kazinski]

Not a bad analogy of Bragg's case.

[Lee Moore]

It isn’t intended to be an analogy of Bragg’s case per se, it’s intended as a raised eyebrow to Prof Kerr’s argument that, if I understand it correctly :

if the commission of (or intent to commit) another “crime” (crime Y) is a necessary component of flipping a crime (crime X) from misdemeanor to felony status, it doesn’t matter whether the law establishing that “crime” (crime Y) is unconstitutional.

I disagree. If the law is unconstitutional, then there ain’t no crime. That NY might proclaim it so, makes it no more a crime than something decreed to be a crime by me. I don’t have the authority to declare things “crimes” – no doubt to the great disadvantage of the Republic; and the state of New York (and the federal Congress) lack the authority to declare things “crimes” if the 1st (or any other) amendment forbids them.

My argument is not really different to arguing that if condition flipping the misdemeanor to a felony flip is the wearing of a hat, we do need to be sure that what is claimed to be a hat is in fact a hat. If in fact it turns out to be a pigeon, it’s not a hat and the condition is failed.

And in determining whether what is alleged to be a crime is a crime, we have to investigate whether it really is a crime. And if it purports to be a crime while it cannot be made such by order of the federal constitution it’s not a crime. It is, so to speak, a pigeon, not a hat.

[Armchair]

Indeed. It's a twisting of the law that allows for discrimination that can't effectively be challenged.

For example, if there was a law that made jaywalking while a Catholic a felony (but only a misdemeanor for non-Catholics), someone charged could easily challenge such a crime. Easy to get standing.

But change it. Put a law on the books that makes being Catholic a crime. Never charge that law. If it's not charged, no one will have standing to challenge it.

Simultaneously have a law on the books that makes jaywalking a felony if its involved with "another crime." Then jaywalking "while catholic" becomes a felony...but the law itself (which never mentions religion) is fine, and "neutral".

[Josh R]

Which of the other crimes that Trump is accused of intending to commit or conceal violates the First Amendment?

[Bored Lawyer]

Did you read the posts. Paying hush money to keep a prostitute quiet and thus influence and election. The argument is that it's FIrst Amendment protected.

[Josh R]

Does the First Amendment guarantee a right to conceal the payment of hush money?

[Kazinski]

Not speaking is as much a right as speaking.

But once again, they may indeed be able to prove the misdemeanor business records charge, but trying to leverage it into a felony by alleging an uncharged, unproven "other crime" that is unconstitutional as applied, will surely doom the case eventually. Both for first amendment and due process reasons.

Here is a.somewhat related federal court controversy which seems to have some overlap:

"The bipartisan United States Sentencing Commission voted unanimously today to prohibit conduct for which a person was acquitted in federal court from being used in calculating a sentence range under the federal guidelines."
https://www.reuters.com/legal/government/us-panel-prohibits-judges-sentencing-acquitted-conduct-2024-04-17/

Seems equally problematic trying to leverage a felony charge on an uncharted allegation that is never proven beyond a reasonable doubt, and doesn't even seem to describe a real crime.

[Drewski]

Let's say, for the sake of argument, that your stupid analogy holds and the rules of sentencing determine whether an unconvinced predicate crime can be used to convict. Whoops, it turns out that acts constituting uncharged crimes can in fact be used in sentencing! The new rule applies only to acquitted conduct. Trump was not acquitted of the conduct at issue. Therefore, by your own reasoning, Trump can be lawfully convicted.

Of course, your stupid analogy is irrelevant anyway, because these are two very different questions.

[Balisane]

This is a good analogy. Another one. Federal law prohibits carrying a firearm while committing a drug trafficking crime. Suppose an Indian tribe was trafficking peyote, and it was held to be protected by the 1st Amendment (let's assume a non-Employment Division v. Smith regime). If the drug trafficking wasn't a crime, then neither can be the firearms charge.

[dwb68]

More pertinent: What is the underlying crime, what are the elements, and what will the jury instructions be? There is a lot of fog, but the actual underlying crime is not in the indictment, nor has evidence of a crime been presented to the jury. So far, this case is about as strong as a sandcastle against a hurricane.

[Michael P]

I think the better question is whether this prosecution can implicitly try Trump for a crime that Trump was never even charged with, and for which the statute of limitations has run. There are problems with the prosecution's theory well beyond the fact that the statute in question would be unconditional as applied to Trump's conduct.

[dwb68]

Nobody knows what the actual underlying crime is. I read a lot of speculation and opinion, but I see nothing on the indictment sheet.

New York case law does seem to allow Trump to be charged with felony falsification of records (which requires a predicate underlying crime) without being charged for the underlying crime. All the appellate the cases I found were very specific what the underlying crime was: insurance fraud; theft; to cover up the fact that the defendant was prohibited from owning guns; and one case the underlying crime was an election law violation (not reporting in-kind campaign donations to a PAC within 14 days).

[Tilted]

Why do you say we don't know what the actual underlying crime is? Are you suggesting the prosecution has to limit its argument to one alleged underlying crime, and that we just don't know which of the multiple crimes it's argued to this point that it will pick for trial? I don't think that's the case or even that's what you mean to suggest; but I'm struggling to take your meaning. I think the prosecution is free to argue at trial all of the crimes it's argued to this point other than the one the judge explicitly ruled out. If it can prove intent related to any of them then it's met its burden for the 1st degree enhancement.

Or are you suggesting the prosecution might make a completely different argument at trial - as to the other crimes intended to be committed or concealed - than it has thus far argued? I don't think it would have been free to do that anyway, but if there were any doubt the judge explicitly forbade it from doing so in his order on the omnibus motions to dismiss:

[Regarding, Defendant's first request, seeking "final and conclusive notification of the 'object crimes,'" Mackey provides, and this court agrees, that a Defendant is entitled to information that will enable him to prepare an adequate defense. In a complex matter such as this, it would be unfair to require the Defendant to conform mid-trial to a new, novel or previously undisclosed legal theory. Therefore, the People will be limited to only those theories they have already identified and are hereby precluded from introducing any new or different "other crime" theories at trial.]

So we know what other crimes the prosecution will argue. It has laid them out in considerable detail, to include in its arguments to survive the defendant's motions to dismiss. This isn't speculation. The prosecution has told us what crimes it believes were intended to be committed or concealed. And the judge has told us that the prosecution is stuck with those crimes which it has already disclosed and described.

Yes, the New York law in question doesn't - at least as this judge finds - require the prosecution to prove that a particular crime was intended to be committed, just that some crime was. But in this case the particular crimes being alleged have been identified and the prosecution has described the acts which it believes constituted the crimes. The prosecution is alleging violations of the Federal Election Campaign Act, New York's Election Law § 17-152, and New York's Tax Law §§ 1801(a)(3).

As the judge said his order on the omnibus motions to dismiss:

[In fact, the People have not only informed the Defendant of several "other crime" theories, but as previously stated, they have supplemented that with a detailed Statement of Facts and voluminous discovery in support of those theories. This Court finds that the People have far exceeded the requirements of CPL § 200.95]

[Josh R]

Has the prosecution argued these other crimes in front of the jury?

[Tilted]

The trial is going on now. So, no, not really. The prosecution is in the process of presenting evidence based on which it will later make its arguments.

In its brief opening statement the prosecution did make fairly superficial references to some of the other crimes. But, as would be expected, it didn't do a deep dive into what constituted those crimes.

If you're asking whether some of the evidence presented so far goes to the other crimes, then yes it does. But the arguments as to what other crimes were intended to be committed or concealed will come at the end of the trial.

At any rate, we - to include the defense - know what the alleged other crimes are because the prosecution has repeatedly told us what they are. And the judge has said the prosecution is limited to arguing the other crimes it's already told us about.

[Kazinski]

"it can prove intent related"

Beyond a reasonable doubt? As applied?

That's a heavy lift.

[Drewski]

Are they required to prove beyond a reasonable doubt? That seems unlikely. Or is this another of those times where you decided learning about the law is too hard so you'll just make it up?

What as-applied challenge has the defense raised?

[damikesc]

In a criminal trial, yes, they have to prove beyond a reasonable doubt.

Which they cannot. They will get the verdict they want regardless (hopelessly biased jury pool and all), but no, it will not stand up on appeal.

[Sarcastr0]

So after being corrected about the crime not being an element, you’re now going to posit that mens rea is hard to prove.

You think “an intent to commit another crime or to aid or conceal the commission thereof” is going to be the place where the prosecution’s case founders.

Cases are hard. There are lots of things that can go wrong. But this backpeddaling along with remaining cocksure at each fallback that this time you’ve got it in the bag that the case is unwinnable seems like whistling past the graveyard.

Or, as I’m increasingly seeing on here, the idea that if Trump does lose it’ll be illegitimate because it's soo obvious the prosecution can't make their burden that if they do, it's gotta be hax.

[Tilted]

Sure, proving anything beyond a reasonable doubt can be a heavy lift. That would seem especially true when it comes to intent. That's as it should be.

Unfortunately for defendants, based on my own experiences and observations, Americans tend not to take the concept of beyond a reasonable doubt all that seriously. It seems we collectively think of it as roughly analogous to... seems pretty darn likely to me... or even... seems like the most likely possibility.

[David Nieporent]

I think the better question is whether this prosecution can implicitly try Trump for a crime that Trump was never even charged with, and for which the statute of limitations has run

The answer is yes. Again: the other crime isn't an element of this offense. It just supplies the necessary intent.

(And Trump doesn't even need to have tried to commit — let alone actually committed — the other crime. It doesn't say, "…with the intent to conceal one's own crime.")

[dwb68]

The other crime most certainly is an element of this offense! Its right there, in the statute, requiring "his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof."

[Sarcastr0]

Read what you just quoted again.

Intent modifies everything. The commission of the crime is not an element.

And you still don't seem to have done the work to look up what the underlying crimes have been identified to be.

[Tilted]

I might go further and say – though it probably won’t matter in this instance as we know with substantial detail what other crimes are being alleged – that, to the extent another crime (which is intended to be committed or concealed) is an element of the 1D FBR offense, what that other crime is wouldn’t be an element.

The judge in this case found, based on case law regarding similar language from a different New York law, that the prosecution wouldn’t need to establish what other law was intended to be committed or concealed. It would only need to prove that some other law was.

That would only seem to matter in unusual circumstances. But, say, a prosecution had an admissible recording of a defendant discussing falsifying records and indicating that they needed to do that so that people wouldn’t realize that they’d been breaking the law. The prosecution might not be able to prove - or even have a good idea as to - what laws were broken, but it might be able to prove that there was an intent to conceal that some law had been broken.

[Brett Bellmore]

"The judge in this case found, based on case law regarding similar language from a different New York law, that the prosecution wouldn’t need to establish what other law was intended to be committed or concealed. It would only need to prove that some other law was."

But, how is the defense supposed to defend against a charge, if such a key element is kept secret? I suppose in your hypothetical it might make sense that the prosecution wouldn't know, to be able to reveal it, but that's not the situation here. The prosecution was just trying to keep the defense in the dark about a key element of the charge in order to handicap them.

[Sarcastr0]

It is not an element.

It has not been kept secret.

Even after having been corrected countless times by many many people here, you are wrong on the facts and the law, yet again.

[Michael P]

For somebody who complains so loudly when commenters here make inferences about mental states, you sure are gonzo about Alvin Bragg telling the jurors in this case to engage in mindreading.

[Sarcastr0]

Hey check out how they prove mens rea before you come at a baseline principe of criminal law so you can wank for Trump.

[Michael P]

You're not actually making a distinction, you hypocrite.

[Sarcastr0]

Saying 'you really think this' is not the same as 'you intended that the thing that you did had the result that it did.'

If you see someone pick up a product, put it in their pocket, and walk out of the store, then absent some evidence to the contrary there is not a lot of reasonable doubt what was intended.

Thus, 2 things can be true:
1. Mens rea is a provable element in criminal law
2. You telling everyone what another person's real thoughts are, as an accusation not based a comment, says more about how you want the world to be than the person's actual thoughts.

Speculation about the hidden evil motives of the other side is a common indulgence by fringes on both sides to burnish their fringiness by setting up a villain that does not exist; it says a lot you're mad I don't want people to indulge in it.

[Michael P]

Ah, so 99% of your accusations of mindreading are bad faith attacks rather than attempts to engage the actual point. Thanks for clarifying.

[Sarcastr0]

I made the distinction you were missing very clear in my first paragraph.

No, you're not going to win any Internet points by writing otherwise.

[Rev. Arthur L. Kirkland]

I am beginning to suspect this dwb68 is one of Blackman's research assistants.

[Dr. Ed 2]

Did you miss the "with the intent to" part?

Don't they kinda have to prove that?

[not guilty]

Absolutely, the prosecution must prove beyond a reasonable doubt Donald Trump's intent, at the time he falsified business records, to commit another crime or to aid or conceal the commission thereof.

The prosecution does not have to prove that another crime, if one was intended, actually occurred. They do not have to prove, if aid or concealment was intended, that aid was actually given or that concealment actually occurred.

And the prosecution does not have to prove that the actual or intended crime was committed or was intended to be committed by Donald Trump himself.

[JesusHadBlondeHairBlueEyes]

The prosecution must prove that his intent in 2017 was to interfere with the 2016 election.

You people are morons who don't even understand how time works.

[not guilty]

"The prosecution must prove that his intent in 2017 was to interfere with the 2016 election."

Uh, no. The prosecution must prove that Donald Trump's intent when he falsified business records in 2017 he intended to commit another crime or to aid or conceal the commission thereof. Concealment of another crime can include concealment of any election law crime that Michael Cohen committed in 2016.

[Dr. Ed 2]

Don't you also have to prove that Trump KNEW that Michael Cohen committed a crime?

[David Nieporent]

No.

[Roger S]

How is the prosecution going to show that Trump intended to commit another crime, when no one can even say what that other crime is?

[Noscitur a sociis]

when no one can even say what that other crime is?

Repeating this won’t make it any more true.

[Armchair]

And yet, no one ever seems to mention what it is.

[Noscitur a sociis]

As Tilted has pointed out above, the judge has issued a very clear order on this point, which is easily available online (indeed, it’s linked in these very comments!). If you can’t be bothered to look it up, I have to question how seriously you actually want an answer.

[Roger S]

You mean the judge who ordered Trump not to criticize his daughter (the judge's daughter) for profiting from the prosecution? No thanks. That judge will say anything against Trump.

[Rev. Arthur L. Kirkland]

That’s something a son of a bitch would say.

I sometimes make allowances for people who were fucked up by shitty parents, but I will not do so here.

[ah....Clem]

C'mon. It's not that hard click this link to the ruling on the motion to dismiss and scroll to page 11 to find the judge's ruling on "other crimes" :

https://www.documentcloud.org/documents/24428461-trump-trial-response

The prosecution wanted to argue for four "theories", the judge allowed three of them to be presented to jury. I didn't follow the opening statements closely enough to know whether the prosecution has argued those yet. But they will. And they are listed explicitly.

"no one ever seems to mention what it is" is just wishful thinking on the part of Trump supporters.

[Noscitur a sociis]

Yes.

Thanks for playing another round of simple answers to stupid questions!

[Michael P]

That's really dumb. Even if Trump intended to conceal what happened -- which is far from clear -- attempting to conceal an act that is protected by the First Amendment cannot be the requisite element of this crime because that underlying act is not a crime.

[Michael P]

Also, you might want to reconsider your theory of criminality here, whereby a bank that processes a check with a misleading memo/for line would lead to felony liability.

[Jason Cavanaugh]

You're going to need to show your work on that one, asshat.

[Dr. Ed 2]

I have a real problem with the 19th Century concept of "leaving the state' being applied in the 21st Century.

What if he had been living in New Jersey, as a lot of folks working in NY do? Would they have deducted every weekend he was out of the state? And doesn't the legal address of the President (like members of Congress) remain the state he was elected from and not DC?

Fleeing the state to avoid prosecution meant something in the 19th Century -- they didn't know where you were. Can anyone honestly say that they didn't know where he was or couldn't find him???

[Noscitur a sociis]

I think the better question is whether this prosecution can implicitly try Trump for a crime that Trump was never even charged with, and for which the statute of limitations has run.

Since there’s no requirement that Trump have even committed the target crime himself, much less that he have been charged with it, I’m not sure that this actually is such a good question after all.

[Dr. Ed 2]

"intent to conceal"???

Let's say it is not a crime, or he didn't think it was a crime, how do you get "intent to"? That seems very much mens rea to me...

[Noscitur a sociis]

Yes, I agree that if Trump didn’t have the necessary intent, he wouldn’t be guilty of the crime.

What does that have to do with the topic being discussed?

[Sarcastr0]

I think that in addition to what Noscitur said, intent to commit the criminal act does not itself require knowledge that the act is criminal.

So 'he didn’t think it was a crime' isn't a defense, especially if he's covering up this not-a-crime.

[Dr. Ed 2]

WHAT?!?

Ignorance of the law may or may not be an excuse, but unless you think it is a crime, there is no way that you can possibly intend to cover up said crime.

That's the difference between "intent to" and "did".

[Sarcastr0]

Isn't one of the stories the right tells that Trump was just covering it up the porn star fling to preserve his family's feelings?

[JesusHadBlondeHairBlueEyes]

Is there a requirement for the act of making these alleged business record crimes to be prosecuted within the statute of limitations for said crimes?

[not guilty]

Donald Trump moved from New York to Florida in 2018 and was continuously absent from New York thereafter. That tolls any statute of limitations that would otherwise apply.

[Michael P]

How is that compatible with the Commerce Clause under Bendix Autolite v. Midwesco Enterprises, 486 U.S. 888 (1988)?

Also, he did not moved to Florida until late 2019, according to https://www.usatoday.com/story/news/politics/2019/11/01/why-president-donald-trump-moving-new-york-florida/4120843002/ and https://www.newsweek.com/has-statute-limitations-run-out-stormy-daniels-payment-depends-how-you-count-opinion-1789338 .

[David Nieporent]

Well, Donald Trump is an individual and the (dormant) commerce clause doesn't have any application. As SCOTUS said in that case, it forced a business to either do business in Ohio or permanently forfeit a statute of limitations defense. This does no such thing. (Maybe you could argue it violates the right to interstate travel, but not the commerce clause.)

[not guilty]

"I think the better question is whether this prosecution can implicitly try Trump for a crime that Trump was never even charged with, and for which the statute of limitations has run. There are problems with the prosecution’s theory well beyond the fact that the statute in question would be unconditional as applied to Trump’s conduct."

Unclear on the difference between actus reus and mens rea?

The criminal conduct Donald Trump is charged with is falsifying business records. Trump is not charged with any other offense. The culpable mental state for the charged offense is intent to defraud which included an intent to commit another crime or to aid or conceal the commission thereof.

The other crime need not have been committed by Trump himself. No one need have been charged with or convicted of the other crime. Indeed, the other crime need not even have been committed, merely intended.

[Noscitur a sociis]

You realize the court documents are all online, right? You’ve even been linked directly to them!

[dwb68]

Trump is being charged with intent to conceal what crime, exactly? its not in the indictment.

[Noscitur a sociis]

Do you think it’s possible that there might have been filings made in the case besides just the indictment?

[dwb68]

More telling: you are absolutely positively sure its there, yet you cant name it in simple terms.

[Noscitur a sociis]

The reason that I'm so sure they're in there is because I read the documents myself, when they were linked while you asked this very same question earlier today.

[Josh R]

I didn't see the link. Can you please post it again in this thread?

[Kazinski]

How hard do you have to look for a first amendment angle when a publisher is put on the stand for 3 days testifying about his motive for killing a story that could affect an election?

Testifying for a third day, Pecker, 72, agreed with a prosecutor who asked whether it would have been "National Enquirer gold" to publish the story of former Playboy model Karen McDougal's claim that she had an affair with Trump in 2006 and 2007.
But Pecker said he opted not to run the story after paying McDougal for it, because it would have hurt the Republican Trump's chances of winning the election over Democrat Hillary Clinton.
"You killed the story because it helped the candidate, Donald Trump?" prosecutor Joshua Steinglass asked him.
Pecker said yes.
The exchange bolstered previous testimony in which Pecker said he worked with Trump's campaign to suppress allegations of adultery at a time when the then-presidential candidate was facing multiple accusations of sexual misbehavior."

Prosecutors spend 3 days establishing Publisher kills a story because he wanted the candidate to win. And he calls it a criminal conspiracy to influence and election.

https://www.reuters.com/world/us/former-tabloid-publisher-face-more-questions-trump-hush-money-trial-2024-04-26/

[Dr. Ed 2]

I think the bigger issue is that he bought the story -- it's his intellectual property and in this country we USED TO believe that the owner of property can do whatever he wishes with it.

Remember Nancy Reagan? Maybe his astrologist told him not to run it. I don't see why this is a legitimate question to ask him.

I didn't want to run the story -- because I didn't want to.

[Noscitur a sociis]

Do… do you think someone’s saying it was illegal not to publish the story?

[Dr. Ed 2]

Yes, that's the implication.

[JesusHadBlondeHairBlueEyes]

Is that not the alleged crime of election interference that Trump's business records were allegedly covering up?

[Michael P]

Probably not, as the National Enquirer made that payment in 2008 or so and never got money from Trump. The core accusation seems to be that the civil settlement that Donald Trump paid in 2016 through his personal lawyer was actually a campaign expenditure.

[David Nieporent]

What on earth are you talking about? AMI made these payments in 2016, not 2008. 2006/2007 was when Trump slept with McDougal, not when AMI got involved.

[Kazinski]

Well as a wily courtroom veteran, why did the prosecutor spend three days establishing that Pecker, contrary to his at least short-term business interests, killed the story?

The prosecutor was establishing an improper motive, Pecker killed the story to increase Trump's chances of winning the election.

A motive that implicates a core first amendment right.

I will concede that Congress did pass a law (about 20 years ago) that might have been interpreted as outlawing some media attempts to influence an election, but I recall a decision, controversial at the time, stating that influencing elections was at the core of the rights protected by the first amendment, and their was no possible interest balancing that could justifying infringing that right.

[Dr. Ed 2]

This is going to SCOTUS, you know it is -- the only question is how much damage to the country it will do before then.

[David Nieporent]

I will concede that Congress did pass a law (about 20 years ago) that might have been interpreted as outlawing some media attempts to influence an election, but I recall a decision, controversial at the time, stating that influencing elections was at the core of the rights protected by the first amendment, and their was no possible interest balancing that could justifying infringing that right.

Presumably that is supposed to be a reference to Citizens United. If so, it is mistaken. CU was about independent, not coordinated, expenditures.

[Kazinski]

Interesting theory, maybe they can charge that. But what kind of expenditure is needed to kill a story?

[David Nieporent]

But what kind of expenditure is needed to kill a story?

A payment to the source of the story not to tell anyone else about it.

[Purple Martin]

So...

This is an interesting argument, and I confess it is not what I thought Steve was arguing in his first post.

That's OK, neither did Steve, but he was on a roll.

[Dr. Ed 2]

"For example, if a legislature says that it's a crime to punch someone during a protest, the fact that the protest is protected by the First Amendment doesn't mean that punching someone during a protest would be."

You have it backwards -- the crime would be punching someone, not being at the protest.

Now I am going with I think you mean and not what you actually wrote, but punching someone would be the "another crime" and it IS "another crime" which has no first amendment protection while what Trump allegedly did *IS*.

Let me try it another way.

Punching someone -- NOT Constitutionally protected
Spending on your campaign -- Constitutionally protected

[David Nieporent]

No, as always you don't understand. Punching someone in the hypo is the analogue to falsifying business records. "During a protest" is the analogue to campaign spending.

[Dr. Ed 2]

That's not what he wrote, but if it was OK....

It's a misdemeanor to punch someone, but a felony to do it furthering another crime.

But being at the rally is not a crime, QED no other crime, QED no felony charge.

And I'm wondering if this "furtherance of another crime" is actually Constitutional without at least being concurrently convicted of the other crime.

[Noscitur a sociis]

I really have trouble believing that you’re actually having trouble understanding this, but here’s a little chart for you:


            Trump's Prof. Kerr's
            case analogy
            ----------------------
Underlying  Cohen      | Going to
act         payments   | a protest
            ----------------------
Criminal    Falsifying | Punching
conduct business   | someone
            records    |


(This is, by the way, exactly what Prof. Kerr wrote.)

And I’m wondering if this “furtherance of another crime” is actually Constitutional without at least being concurrently convicted of the other crime.

Yes, it’s very obviously constitutional to criminalize conduct facilitating or concealing other people’s crimes. Why wouldn’t it be?

[Noscitur a sociis]

Eh, Reason's terrible commenting platform ruined the formatting. You get the idea.

[Dr. Ed 2]

Me too, but I trust you can see my point.

[Kazinski]

I will concede Cohen's payments theoretically could constitute a misdemeanor. What that doesn't get you is construing a first amendment right to campaign for office as an illegal conspiracy.

And don't you start Nige's pink font crap.

[Vryedni]

Randal, not Nige. And no, all pinkos don't look alike.

[Noscitur a sociis]

Did you try reading the post

[Roger S]

You want me to believe that Trump deliberately committed a crime in order to cover up Cohen's crimes? No, not plausible.

[David Nieporent]

Well, I agree that it's not plausible that Trump would do something merely to benefit some other person. But Trump benefitted from that coverup too, so it's entirely plausible.

[Dr. Ed 2]

First, I don't see how a memo on a check is falsifying records in the first place -- not that alone.

But the argument is that it is constitutionally protected speech while punching someone is not, and conversely attending a rally is but Cohen's crimes are not.

X Y
-- /= ---
Y X

[Armchair]

"Yes, it’s very obviously constitutional to criminalize conduct facilitating or concealing other people’s crimes. Why wouldn’t it be?"

Hypothetical example. Let's say the FBI really wants to imprison you. But...they don't have much. They find you took a taxi with Joe once.
1. Joe is guilty of major tax fraud. The FBI has him to rights. But...they want to get you.
2. They get Joe to plead guilty to a minor crime that they couldn't actually prove in court. Reckless driving, with you in the car. Joe is happy to plead to that, as he's now cooperating. Joe says "you paid him to speed"
3. The FBI now locks you up for facilitating reckless driving.

Any problem there?

[Sam Bankman-Fried]

FBI doesn’t prosecute…US Attorneys prosecute.

[Josh R]

Joe is lying. The jury can decide whether Cohen or Trump is the liar.

[Noscitur a sociis]

There is indeed a problem! But it relates to the falsification of evidence, not the scope of the criminal prohibition.

[Roger S]

Trump has a 1A right to make a payment to help preserve his reputation, and a 1A right to describe it any way he wants. Only a die-hard Trump-hater would argue that there is anything criminal about it.

Kerr argues that there is no right to break the law, 1A or otherwise. Yes, obviously. But no law-breaking is involved. Trump paid Cohen and recorded it.

[Josh R]

I don't think the 1A permits you to describe a payment any way you want to.

[Kazinski]

I haven't seen any evidence at all Trump described the payment one way or another, do you think he does his own books?

[David Nieporent]

If Trump wants to go with "Ignore all the testimony and documentary evidence; the people in the Trump Organization did this all on their own with no input from me," he's welcome to see how the jury responds.

[Noscitur a sociis]

Trump has a 1A right to make a payment to help preserve his reputation, and a 1A right to describe it any way he wants.

What’s the one case you’d point someone to that best supports this proposition?

[Roger S]

No one has ever been prosecuted for anything similar to what Trump did. No one has even expressed the opinion that it would be illegal. No one has ever even said that it would be wrong, or unethical, or against the public interest. Even today, no one can explain what is wrong with it, except that the Trump-haters express the hope that Trump will be jailed for it.

[Sarcastr0]

So no cases then.

Heck, the 1A fell off of your argument entirely.

That was like a record goalpost replacement.
Almost as though you have no particular argument that has convinced you, just an outcome and the arguments come later.

[Tilted]

Are you referring to the alleged falsifying business records offenses or the alleged other crimes - violations of federal election laws, state election laws, and state tax laws?

I now very little about the history of prosecutions under the New York state laws. But I'm pretty sure there have been prosecutions under federal law for making excessive in-kind campaign contributions and for knowingly accepting them.

And I'd say that what is alleged to have happened falls pretty neatly within what's proscribed by the text of federal campaign finance law. If you'd like we can walk through what that law says.

We can debate the propriety of the broadness of that law. But what Mr. Cohen and AMI and President Trump are alleged to have done probably violates it. I'd be curious to substantive arguments as to how it - again, as alleged, but not yet proved - doesn't.

[Michael Ejercito]

And I’d say that what is alleged to have happened falls pretty neatly within what’s proscribed by the text of federal campaign finance law. If you’d like we can walk through what that law says.

You can say that s many times as you want.

You would still be wrong.

[Tilted]

As I asked you in the other thread, what element of the crime - as alleged - is missing? Again, the law as written is very broad.

The prosecution, of course, has to prove its factual allegations.

[Roger S]

No one has been able to find a precedent supporting the prosecutor's case.