The Volokh Conspiracy

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No, Trump Does Not Have a First Amendment Defense In His New York Criminal Case

A response to Steve Calabresi.


I have mixed views about New York's prosecution of Donald Trump—if you look at all the crimes Trump has committed, the ones charged in New York seem comparatively minor—but I do not agree with my co-blogger Steve Calabresi's claim that Trump has a First Amendment defense to the charges.

First off, Trump was not charged with paying hush money.  As I understand the indictment, Trump is charged with 34 counts of keeping false business records.  It's not the payments to keep Daniels quiet that is the claimed crime; it's the keeping of false records needed to keep quiet that he had paid off Daniels to keep quiet.  (To put a new spin on an old saying: it's not the coverup, it's the covering-up of the coverup.) Whether Trump would have a First Amendment right to pay Daniels to keep quiet is irrelevant, as that was not charged as a crime.

To say that Trump has a First Amendment defense, then, I think you need to take the astonishing view that crimes somehow related to spending that helps a political candidate are protected by the First Amendment.  Even acknowledging that Steve's vision is not intended to be rooted in current law, but rather in a vision of what he thinks First Amendment should be read to be, I don't think I see how there could be a First Amendment right to do that.  As far as I know, there is no First Amendment right to commit election-related crimes. Wanting to help a candidate for office doesn't give people a right to cook the books.