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.

Comments

[Intelligent Mr Toad]

Don't be afraid to say it: Your co-blogger Steve Calabresi is an idiot, and he wouldn't have a job if not for his family name. (Ad hominem is not always a logical fallacy.)

[Intelligent Mr Toad]

Here;

https://www.youtube.com/watch?v=xsOf0TZPPWY&t=5s

[Davy C]

It's a logical fallacy if used to contest an argument. If you just feel like gratuitously insulting people, though, I guess you can do that.

[Sarcastr0]

Some things don’t deserve anything other than distain.

I hope Prof. Kerr enjoyed writing this, because if it was out of some obligation that’s some unfortunate trash collection duty.

[Roger S]

Kerr is just revealing himself to be a Trump-hater.

[Noscitur a sociis]

I don’t think Prof. Kerr has been especially circumspect about his feelings concerning Trump!

https://reason.com/volokh/2016/05/04/never-ever-trump/

[Roger S]

Right, and those with Trump Derangement Syndrome will argue almost anything that is against Trump. But Kerr is also a law professor, and I was hoping to see some legal analysis. Nope, just Trump hatred.

[Rev. Arthur L. Kirkland]

You don't belong at this blog, Prof. Kerr.

You are a respected, mainstream legal scholar whose contributions to the law are interesting, important, and insightful. You are not a disaffected social injustice warrior. I would bet my house (no mortgage) you wince when Prof. Volokh launches a racial slur and this blog's fans contribute their daily stream of multihued bigotry. You obviously believe this blog's ardent conservative fans couldn't reason their way out of a paper bag with a blowtorch. I would bet my car (nice one) you won't vote for Donald Trump, would not endorse John Eastman, and don't have much of a relationship with Leonard Leo, Jonathan Mitchell, Russell Vought, Josh Blackman, or Michael Flynn.

You are better than this. Your work deserves better. Your employer deserves better. You deserve much better.

Good luck.

[JesusHadBlondeHairBlueEyes]

He may not do those things, so here are some things he probably does:

1.) Runs out to get boosted to the max every time Pfizer and their CDC stakeholders tells you too.
2.) Wears a disposable mask made in China by slave labor
3.) Takes his young children to Pride parades so his children can be colonized by the Homo Agenda.
4.) Addresses his 4 year old son as a “her”.
5.) Blames greedy capitalists everytime he shops at Piggly Wiggly.
6.) Kneels down and puts his fist in the air everytime he sees a BIPOC.
7.) Has Slava Ukraini on his Twitter bio, right next to his pronouns and his “Proud Father of a 2 year old Trans girl” rainbow sticker.
8.) Framed his Vaxx card so he has it ready when he registers his digital identity the US Treasury so he can start off his social credit score with a stockpile of good boy points.
9.) Can’t wait to sell his 3 travel allotments to some rich person. He can just travel using his Apple Googles Pro Max.

[Darwinnie]

This looks like a copy-and-paste job from 4chan.

[Rev. Arthur L. Kirkland]

I thought it was an update posted by Prof. Calbresi.

[Kazinski]

Probably nothing I can say can convince you but perhaps Prof. Shugarman(and Rick Hasen) has something salient:

However, this explanation is a novel interpretation with many significant legal problems. And none of the Manhattan district attorney’s filings or today’s opening statement even hint at this approach.

Instead of a theory of defrauding state regulators, Mr. Bragg has adopted a weak theory of “election interference,” and Justice Juan Merchan described the case, in his summary of it during jury selection, as an allegation of falsifying business records “to conceal an agreement with others to unlawfully influence the 2016 election.”

As a reality check: It is legal for a candidate to pay for a nondisclosure agreement. Hush money is unseemly, but it is legal. The election law scholar Richard Hasen rightly observed, “Calling it election interference actually cheapens the term and undermines the deadly serious charges in the real election interference cases.”

In Monday’s opening argument, the prosecutor Matthew Colangelo still evaded specifics about what was illegal about influencing an election, but then he claimed, “It was election fraud, pure and simple.” None of the relevant state or federal statutes refer to filing violations as fraud. Calling it “election fraud” is a legal and strategic mistake, exaggerating the case and setting up the jury with high expectations that the prosecutors cannot meet."

https://www.nytimes.com/2024/04/23/opinion/bragg-trump-trial.html

By focusing on the possibly provable record keeping claims, and not focusing on the unprovable and unconstitutional election interference claims is really disappointing.

[Orin S. Kerr]

This has to do with the first amendment how?

[Kazinski]

It has to do with the first amendment because President Trump has a first amendment right to craft his campaign strategy as he sees fit, and has a first amendment right to disclose or not disclose any personal conduct which may or may not influence the voters.

I should think that would be obvious.

Braggs theory that making perfectly legal payments to someone not to disclose perfectly legal conduct, and calling that an illegal conspiracy to influence an election is laughable.

[Orin S. Kerr]

If it’s obvious, why does the authority you are relying on — Professor Shugarman’s op-ed — never mention the First Amendment?

[Kazinski]

He doesn't cite any statutes or Constitutional theory by name, fancy that in an Op-ed. But he does fault Trumps legal team for not bringing up Constitutional claims pre-trial: "If they had raised the issues of selective or vindictive prosecution and a mix of jurisdictional, pre-emption and constitutional claims, they could have delayed the trial past Election Day, even if they lost at each federal stage."

But honestly Orin, you've been in the University too long, its barely been 2 weeks since the trial started, neither Trump, Shugarman, Calabresi, nor I have to totally pull a fully grown legal strategy out of the Head of Zeus before the defense even presents its case, but I'm pretty sure it will be in their motion for a directed verdict.

And certainly it will be there if a cert position is ever needed.

[Orin S. Kerr]

So after reading the detailed legal analysis that the op-ed provides, you hypothesize that it would require "a fully grown legal strategy out of the Head of Zeus" to simply utter the phrase "First Amendment," or even just the six-letter word "speech"?

My, Kazinski, you can amaze.

[Kazinski]

I might also bring up (because I just thought about it) that state laws that require a candidate for Federal office to disclose their tax returns have been struck down.

Now Bragg comes with a State law against election interference that he is trying to apply to a Federal Election.

The Federal Illegal Campaign contribution that they got Cohen to cop to as part of a plea deal was plenty weak enough (although its no mystery why Cohen pled to it, and had nothing to do with his actual guilt on the charge).

[Orin S. Kerr]

No First Amendment again, interestingly.

[Kazinski]

See above, I pivoted before I saw your response, because thought of the issue about state campaign laws constraining federal campaigns, which seems to be ill favored in at least one court that has jurisdiction.

Hell the mandatory tax return law for federal candidates couldn't even get out of California alive:

https://www.politico.com/states/california/story/2019/11/21/california-supreme-court-xxx-trump-tax-returns-law-1228830

But I'll try to be clearer, what Trump discloses, or closes, in his federal campaign is his first amendment right to decide, he has the right to craft his own message. There is no federal campaign disclosure act about personal or private facts, and even if a state law could be crafted to require such disclosures in a state campaign, which I doubt, it can't apply to a Federal campaign.

[Orin S. Kerr]

Next week, when Steve posts about how the Trump prosecutions violate the Third Amendment, I think I know who will chime in with supportive comments.

[Kazinski]

Well you’d be wrong, when Calabresi endorsed a flavor of the Officers argument I said I wasn’t convinced and I thought the Griffin, Section 5, 18 USC 2383 preemption argument was stronger. And I was right.

Although the 4th amendment is enough of a mess I might be able to come up with a theory there.

[Roger S]

Kerr's whole argument is to say "As far as I know, there is no First Amendment right to commit election-related crimes." Of course, there is no right to commit any crimes. This is no argument at all.

The 1A allows Trump to say whatever he wants, unless it is some recognized exception like yelling fire in a crowded theater. He can record a transaction truthfully, or falsely. It is up to the prosecution to prove that describing the payment to Cohen as a legal expense is somehow a 1A exception.

[Dr. Ed 2]

I still don't see how Cohen's guilt becomes Trump's guilt.

[Sarcastr0]

You could read the indictment. Or you could just stay angry and ignorant and post endlessly about revenge.

I think I can guess which you'll pick!

[JesusHadBlondeHairBlueEyes]

I wonder why you just pointed to the alleged refutation instead of actually articulating your own argument.

Maybe it’s a disability that keeps you from making arguments instead of referencing where a refutation might be.

[not guilty]

"I still don’t see how Cohen’s guilt becomes Trump’s guilt."

Donald Trump is charged with different offenses from those as to which Michael Cohen pled guilty. https://d3i6fh83elv35t.cloudfront.net/static/2018/08/MichaelCohenPleaAgreement.pdf (Count Seven involved Cohen's campaign finance crimes.) The actus reus of Trump's charges is the falsification of business records. The mens rea elevating the offenses to a felony is Trump's intent to conceal the commission of Cohen's crime.

[bernard11]

It has to do with the first amendment because President Trump has a first amendment right to craft his campaign strategy as he sees fit,

And if that strategy involves driving 100mph to get from one rally to another, is he exempt from traffic laws?

[Darwinnie]

The Constitution!

[Darwinnie]

The Constitution!

[ObviouslyNotSpam]

Total immunity!

[Patrick Henry, the 2nd]

"right to free speech" which also means the right to NOT speak.

This is as clear of a 1st amendment issue as it gets!

[Armchair]

"Juan Merchan described the case, in his summary of it during jury selection, as an allegation of falsifying business records “to conceal an agreement with others to unlawfully influence the 2016 election."

So Trump "falsified" business records in 2017 to influence the 2016 election....

Time travel is another one of Trump's skills?

[JesusHadBlondeHairBlueEyes]

All the super serious legal brain trusts will tell you that of course Trump can time travel. He's that evil and commits illegal time traveling all the time to cover up his illegal crimes of talking and saying stuff.

Lawfare!

[Sarcastr0]

Yes, Armchair - the characterization of reimbursement payments are the issue here.

A moment of reading anything about this story would have cleared that up, but I hope this helps with your timeline confusion.

[ObviouslyNotSpam]

Yes, the "falsifying" allegedly occurred in 2017, when the invoices were paid, but what makes you think the "agreement with others" could not have occurred in 2016 and the "concealment" and "falsifying" at a later date?

[bernard11]

Armchair doesn't think at all. He's just a (badly programmed) Trumpbot.

[JesusHadBlondeHairBlueEyes]

The "agreement with others" isn't being charged though.

It's the records created in 2017 which is the alleged crime that occurred in 2016.

[zztop8970]

Nor can they, because it is not a crime to pay hush money.

[David Nieporent]

So Trump “falsified” business records in 2017 to influence the 2016 election….

Time travel is another one of Trump’s skills?

Thinking isn't one of yours. The allegation is that Trump falsified business records in 2017 to cover up an earlier attempt to illegally influence the 2016 election. Two separate things.

[not guilty]

"So Trump 'falsified' business records in 2017 to influence the 2016 election…."

No, Donald Trump is accused of falsifying business records in 2017 with intent to conceal crimes that had occurred in 2016.

Verbs matter, Armchair. Especially when those verbs are used in statutes to define criminal conduct.

[Armchair]

And what crimes supposedly happened in 2016?

[not guilty]

Michael Cohen pled guilty to campaign finance violations occurring (in part) in 2016. https://www.justice.gov/usao-sdny/pr/michael-cohen-pleads-guilty-manhattan-federal-court-eight-counts-including-criminal-tax

Whether the New York prosecutors have shown beyond a reasonable doubt that Donald Trump falsified business records during 2017 while intending to conceal Cohen's crimes is a question twelve men and women will consider in a few weeks.

[Armchair]

Michael Cohen pleading guilty to something doesn't mean a crime actually occurred.

[David Nieporent]

Boy, Cohen's lawyer is really going to have egg on his face when he reads your comment.

[Patrick Henry, the 2nd]

Yeah welcome to bad lawyers and plea deals!

[Krayt]

So he has a right to pay someone to shut up (which may have been their goal), and to do so so as to not hurt his campaign with a bimbo eruption. The crime was not reporting it as a campaign donation.

The odd thing is that kind of law was so The People could see who was donating, and make their own judgements as to why, what does this or that donor get out of their donation?

Donating to himself for his own benefit seems weak in that regard.

Anyway, now someone wants to say that that illegality now satisfies doing something corrupt to influence an election?

That is some powerful disinterested concern for rule of law and not getting a political opponent at all. Taking a technical violation that doesn’t really violate the spirit of why the law exists in the first place, and adding a second charge built on that as activator.

Man, if Republicans hadn’t gone after Clinton so hard for covering up sex with an intern, all these little technical crimes are BFDs, then and now, flip flop, flip flop, who knows.

You built that bed and now have to lay in it.

Actually, to paraphrase Billy Joel, nobody alive even started that fire. But I can pop popcorn with it!

[Sarcastr0]

I like purposivist arguments about the Constitution.

purposivist arguments about statutes are basically just pounding on the table.

And the rest of your post is the sneering telepathy I've come to expect from you. So much of your reality is confident assumptions for you.
You're even getting me to defend the GOP's take on the Clinton scandals. I think it was nonsense, but a technicality it was not.

[JesusHadBlondeHairBlueEyes]

Another kibitzer post.

For once can you try contributing?

[Tilted]

I'm not inclined to defend the charges in this case. But to be clear about what the charges actually are...

The alleged crimes (beyond falsifying business records) aren't about President Trump making campaign-related payments and not reporting them. Some of the alleged crimes are about him coordinating with others to make campaign-related payments which amounted to illegal campaign contributions because they exceeded federal limits. Had he made the payments himself the legal considerations would, I think, be different.

Some other alleged crimes related to providing false information in tax filings - i.e., reporting reimbursements as income (and paying income tax on them) so as to conceal what they were for. In essence the allegation is that they agreed to gross up the amount paid back to Mr. Cohen so that he could report it as income rather than, e.g., 'hush-money repayment' and still be made whole after paying around 50% in taxes on it. The prosecution argues that doing that violated NY tax law even though it meant Mr. Cohen paid more tax than he should have.

[Michael Ejercito]

Since paying off Stormy Daniels is not campaign related...

[David Nieporent]

Of course it was. The entire point was to protect Trump's campaign. In fact, he hoped to stall until after the election and then not have any need to pay her, but that plan fell through so he had to.

[Michael Ejercito]

The idea that paying off Stormy Daniels was a campaign expenditure is absurd on its face.

I wrote so when this inane argument was presented on Reason.com back in 2018!

I mean, to claim so would mean it would be legally required (not just allowed) to use campaign funds to spend money on adulterous affairs.

[David Nieporent]

If it's his own money it doesn't matter whether it's called "campaign funds" or not. The issue there would be disclosure.

[Tilted]

President Trump's defense is free to make that argument. But the prosecution seems to think it has evidence to the contrary, including testimony relating to discussions about paying Ms. Daniels, why that needed to be done, whether they could stall until after the election so that it didn't need to be done, and how Mr. Cohen would be reimbursed.

They also have a conviction for Mr. Cohen which would seem necessarily predicated on the payment to Ms. Daniels being campaign related. If that payment didn't relate to President Trump's campaign, how would it have been an illegal campaign contribution?

Maybe the prosecution won't be able to make its case. But the allegations are as I described, not as the poster I responded to described, and that was the point.

[Mr. Bumble]

Seems like First Amendment claims should be directed at Judge Merchan's specious gag order.

[NvEric]

Juan knows not his station, being an actor in robes.

[ObviouslyNotSpam]

Please explain. That almost doesn't sound racist.

[Kazinski]

Lets be clear, I didn't form my opinion based on Shugarmans op-ed, I based it on my own opinion. Just as linking Braggs theory of using a state election law calling legal hush money payments election fraud in a federal election to California's law requiring federal candidates to disclose their income taxes was my own thought.

I merely pointed out Shugarman's op-ed because it was more likely to convince you than my own thoughts. I disagree with Shugarman 90% of the time, so I'm surprised when he agrees with me, not suddenly convinced he's infallible when he does.

And you're right, he doesn't pile on his legal analysis very high. But I'd be willing to bet a beer that Goresuch, Thomas, Kavanaugh, and Roberts could supply what he misses if it needs to go that high.

[David Nieporent]

California's law was a ballot access law, so it really has nothing to do with anything here.

[Kazinski]

It was a law regulating a federal election.

And lets look at Bragg’s theory: “Matthew Colangelo still evaded specifics about what was illegal about influencing an election, but then he claimed, “It was election fraud, pure and simple.”

Do you think Trump’s campaign strategy was aimed at NY voters? How does NY purport to apply a NY campaign law to a federal election where the result in NY was a foregone conclusion, and the election was effectively decided in Wisconsin, Michigan, and Pennsylvania?

I will note that Tax return disclosure law that the CA SC Invalidated was struck law based on California law, but it had already been enjoined in the 9th circuit on federal constitutional grounds.

[not guilty]

"Lets be clear, I didn’t form my opinion based on Shugarmans op-ed, I based it on my own opinion."

Opinions are like assholes, Kazinski. Virtually everyone has one, and neither one's opinion nor one's asshole should be offered casually.

[Kazinski]

And yet here we all are.

[NvEric]

"As far as I know, there is no First Amendment right to commit election-related crimes."
How is that so ?
Juan is a disreputable 'actor' who deserves disbarment for not recusing himself. Robes do not make one a God; disrepute garners nothing.

"Wanting to help a candidate for office doesn't give people a right to cook the books."
Bingo, Trump has done nothing illegal.
P.S. Books were never 'cooked' what so ever.

I swear you kids know less about the law than Trump does. These 'positions' you take lack substance, are without merit, and are counter-productive to the profession of law. Please try harder to reason clearly and without internal biases. Your path seems to have deviated from sincerity, truth, and honesty. Advocate for each side !

[Orin S. Kerr]

Oh, okay.

[Rev. Arthur L. Kirkland]

That slack-j . . . . whoops, person with a scantly elasticized jaw . . . is your blog's target audience, Prof. Kerr. Why is this your blog?

[Social Justice is neither]

Yes, in this case you're nothing more than a political hack. Your pulling the legal equivalent of a Kruggman, but being a political shill pays so free speech and all that.

[Darwinnie]

This reads like a pro se legal brief.

[Rev. Arthur L. Kirkland]

It's just another day at the Volokh Conspiracy.

[Sam Bankman-Fried]

so ordered, adjudged and decreed

[Brett Bellmore]

"if you look at all the crimes Trump has committed,"

Is alleged to have committed.

That said, most of these cases are incredibly weak, (The national security documents case being the exception, but also a conspicuous example of selective prosecution.) but this likely IS the weakest of them.

I take it as a given that Trump is losing in the first instance, but he'll probably prevail on appeal. The question is whether Bragg will actually echo Reid's "It worked, didn't it?", or leave it unsaid.

[JesusHadBlondeHairBlueEyes]

That's the cue that Orin's mind isn't in the right place.

[bernard11]

a conspicuous example of selective prosecution.

Bullshit. Are you continuing to equate trump's conduct with that of others, no matter how often the differences have been explained (by actual lawyers - not the ghost in your brain that tells you you know everything).

[Noscitur a sociis]

“if you look at all the crimes Trump has committed,”

Love it.

Brett can’t even articulate a disagreement with anyone without lumping them into the worldwide conspiracy of tyranny, but don’t you dare express an opinion about Trump without a full disclaimer.

And he claims he’s not a Trump supporter!

[NvEric]

The practice and display of legal notions seems to be a game with many. Learned ones highlight their novel notions of thought encapsulated within voids of mind and within groups of whom most know not enough to object to the absurdities presented as reality, but in truth, and more so realistically, delve into advanced degeneracy. This is that time for which transitions point in directions of hope and despair. Most will continue with despair hidden by falsities and enjoined by ignorance, sloth, and Nihilism.

The short quip lays to certainty of my point.

[ObviouslyNotSpam]

Impressive. ChatGPT?

[Armchair]

A quick question about the majority of the charges.

The majority of the charges are due to a statement on a check that says "retainer for date to date"

Merriam-webster lists one definition of retainer as
" a fee paid to a lawyer or professional adviser for advice or services or for a claim on services when needed"

https://www.merriam-webster.com/dictionary/retainer

How exactly is writing "retainer for date to date" on a check to Michael Cohen a "false business statement" based on that definition? Is it not a fee to a lawyer or professional adviser for services"?

Especially as the majority of the payment to Cohen were for his services and did not go to anyone else?

[Brett Bellmore]

Most of the cases against Trump are weak, but this case is fractally weak; Not only is it weak, all the components of its weakness are weak, recursively.

Trump's problem is that between judge shopping and bringing the charges in politically hostile areas, he almost starts out convicted.

Remember, in the case where they're alleging he defrauded banks with inaccurate property valuations, the judge actually tried to impose a corporate death penalty on Trump's NY operations BEFORE the trial began, and had to be slapped down by an appeals court.

[Dr. Ed 2]

For a profession so based on precedent, I am amazed that no one is asking about the precedents being set here. Trump will be dead in 50 years, but the ability to legally lynch your political opponents will remain.

[JesusHadBlondeHairBlueEyes]

Marxists have full institutional control, and that power will never be levered against them. Only us 1776 types.

[Rev. Arthur L. Kirkland]

At least you know your place, clinger. Some of these yokels . . . including a few of the law professors . . .think they are still competitive in the culture war, and that bigotry, superstition, and backwardness are going to mount a huge comeback against reason, modernity, and inclusiveness.

[JesusHadBlondeHairBlueEyes]

I'm on your side of the culture war.

Like you, I want to see an end to the Zionist genocidal nightmare. Maybe you guys will implement some kind of solution? Hopefully a final one, right? Hate to have to keep circling back to this problem each generation.

Also like you, I want to see the undesirables aborted or sterilized.

We have similar goals.

[Sarcastr0]

Judge Brett has spoken, and let all who disagree with him be assumed to be in bad faith, whether Internet commenter or actual judge!

[JesusHadBlondeHairBlueEyes]

Of course you'd rush out to defend an obviously biased judge.

It's like any criticism of the State is your peanut and it makes you dance like a little monkey every time someone pitches one.

[ObviouslyNotSpam]

You actually think Trump wasn't paying Cohen back for the Stephanie Clifford payoff?

[Drewski]

Retainers are paid in advance, always. If they aren't, they're fees. Legal retainers are regulated by the states--lawyers aren't allowed to take retainers for other purposes. Because it's a regulated matter, the relevant definition is not the most favorable one you can find in a dictionary. Clearly, New York believes it can prove to a jury that the check was not for a retainer and was intentionally mislabeled.

[Armchair]

“Retainers are paid in advance, always”
-That’s your opinion. Others differ.

“Legal retainers ”
-The check does not say legal retainer. It simply said retainer.

“The relevant definition”
So your argument comes down to “When you wrote this, you didn’t mean this definition (that’s in the dictionary), which would not be fraud. Instead you actually meant this OTHER definition…which would be fraud?" Seems you could accuse anyone of fraud for anything under that type of logic.

[Armchair]

To point out how odd this "we can tell you what the definition is" argument goes, let's say the following statement is made on a check.

On the check, Trump writes "payment for nails". And Trump is paying for...a nail salon visit for Melania. But under your logic, you can say "no, nails means "a pointed and headed fastener." And you can now say Trump commited fraud.

[David Nieporent]

How exactly is writing “retainer for date to date” on a check to Michael Cohen a “false business statement” based on that definition? Is it not a fee to a lawyer or professional adviser for services”?

That was, indeed, not what the payments were. They were reimbursements to him for payments he made (primarily, but not solely to Stormy Daniels) on Trump's behalf.

[Michael Ejercito]

Which still did not constitute campaign expenditures.

[Armchair]

Incorrect. The payments to Stormy made up a minority of the overall payments.

The majority of the money sent to Cohen stayed with Cohen.

[Tilted]

Getting the caveat that we don't have to accept the prosecution's allegations out of the way...

The majority of the alleged $420,000 in payments was, effectively, reimbursement for the payment made to Ms. Daniels. The allegation is that they agreed to gross up both the reimbursement for that payment and $50,000 which Mr. Cohen was being reimbursed for another expense. So the $130,000 plus $50,000 was doubled to $360,000 and then a year-end bonus of $60,000 was added.

This was allegedly done so that Mr. Cohen could report the reimbursements as income and pay income taxes on them and still be made whole - still have about $180,000 left to cover the payment to Ms. Daniels and the other expense, and what was left after taxes on the year-end bonus.

So... the allegation is that $260,000 of the $420,000 related to the payment made to Ms. Daniels and Mr. Trump agreed to pay double what he otherwise would have need to so that the reimbursement could be reported as income.

[Frank Drackman]

You convinced me OK!
now what if "45" had driven an Oldsmobile off a bridge, left a young woman to asphyxiate (Not drowned, there's a difference), and didn't call 9-11 in a timely manner? would there be any crimes worth prosecuting there?

Frank "Memory like an Elephant, Nose also"

[Tim]

Isn't he being charged with falsifying business records in order to conceal another crime? (Which he's not being charged with.)

I'll admit, I haven't even read Calabresi's article, because my eyes rolled so hard when I saw the title.

But if Trump had a First Amendment defense to the underlying crime, wouldn't that affect the validity of this" falsifying records in order to" crime?

[Krayt]

I believe the point is you have a right to donate, just not silently without listing your donations.

If you want to attack the silent part on First Amendment grounds, that seems to be something different.

[Tilted]

I would think the answer to your last question would be yes.

But here some of the alleged crimes are campaign contributions (by, e.g., Mr. Cohen) in excess of federal limits. My general understanding is that limits on campaign contributions - as distinguished from, e.g., independent expenditures - have been upheld by the Supreme Court.

[Michael Ejercito]

Since when was Stormy Daniels a political action committee?

There is a far stronger argument the oayment violated Sharia law.

[Tilted]

I didn't suggest Ms. Daniels was a PAC, but I think you realized that.

The argument is that Mr. Cohen made the payment to Ms. Daniels on behalf of then-candidate President Trump and to help him get elected - and that it was coordinated with President Trump. Just as Mr. Cohen could not have legally contributed (or loaned) $130,000 in cash to President Trump's campaign which that campaign then used to pay for something it wanted, Mr. Cohen couldn't have legally used $130,000 to directly pay for that something which the campaign wanted.

[Michael Ejercito]

Such a broad interpretation of campaign finance law has no support in precedent.

[Tilted]

You don't think anyone's ever been convicted of making excessive in-kind campaign contributions? Or you don't think the things alleged to have happened (with AMI paying Ms. McDougal and Mr. Cohen paying Ms. Daniels) qualify as campaign contributions under FECA?

If the latter, then in what way do they - again, as alleged - fall short of what's required under the law as written?

It's not that the interpretation is broad, it's that the law itself is very broad. That's the problem.

[Voize]

Buckley v. Valeo taught that money spent on speech is speech, and that was challenging enough to digest, but Calabresi's theory is that money spent on suppressing someone else's speech is also speech. He is wrong. The First Amendment protects your ability to counter the speech of others with your own, not your ability to stifle them.

[Michael P]

Nobody's speech was suppressed or stifled here. Keith Davidson was very clear in his testimony that the money was not even "hush money", colloquially meaning a payment made in voluntary exchange for not speaking on some topic.

[Noscitur a sociis]

I mean, paying someone not to speak is suppressing their speech. It’s a lawful way to suppress it, but it is suppressing it.

[Michael P]

That's not what the definition you posted below says.

[WuzYoungOnceToo]

You appear to now know the meanings of the words "suppress" and "stifle".

[Noscitur a sociis]

suppress
verb
sup·​press sə-ˈpres
suppressed; suppressing; suppresses
transitive verb

2: to keep from public knowledge: such as

a: to keep secret
b: to stop or prohibit the publication or revelation of

https://www.merriam-webster.com/dictionary/suppress

stifle
verb
sti·​fle ˈstī-fəl
stifled; stifling ˈstī-f(ə-)liŋ
transitive verb

1

a: to withhold from circulation or expression

https://www.merriam-webster.com/dictionary/stifle

[Voize]

If those words are a problem then let's not use them:

My claim is that buying someone's silence is not an activity protected by the first amendment.
As a result, laws regulating that activity are not unconstitutional on account of infringing the amendment.

[Armchair]

Let's further ask....

Is there a major 6th Amendment violation going on?

The 6th amendment guarantees the defendant "to be informed of the nature and cause of the accusation"

True, Trump has been accused of falsifying business records. But that is in furtherance of "another crime". A crime...which hasn't been defined. We are part way through this trial, and this "other crime" still hasn't been defined.

[NOVA Lawyer]

Are you surprised the Trump team never brought this up?

Maybe because they admitted in their motion to dismiss that, in fact, they knew what the underlying crimes being alleged were?

The People proffered four potential object offenses
in response to President Trump’s request for a Bill of Particulars: XXXXXXXXXXXX.

(offenses omitted in solidarity with Sarcastro's suggestion that it would be a fun exercise for you to figure out what the charges are....I've given you two big hints on where you can find them....)

Sometimes it’s good to pause and consider whether your comment makes any sense before hitting “submit.”

[Armchair]

Ah yes, the infamous "potential object offensives" variant of the Sixth amendment.

When the defendant asks what he's being charged with, the prosecution can respond.

"We might be charging you with this crime. Or this other crime. Or this third crime. Perhaps the 4th crime. We're not telling you which crime. But it's one of them. Probably".

[David Nieporent]

Once more: you fail to understand that they only crime that they were charging him with is 175.10.

[Tilted]

The other crimes intended to be committed or concealed have been described in considerable detail in various court filings - whether such was required for 6th Amendment purposes or not.

This is an issue that was already argued by the parties and considered by the judge.

[Noscitur a sociis]

Is there a major 6th Amendment violation going on?

About as much as there’s a first amendment violation.

[John F. Carr]

The false entries are misdemeanors on their own. They become felonies when made with intent to conceal another crime. If Trump has a First Amendment defense to the other crime you might as well say he has a First Amendment defense to the felony charges. If the other charge is tax evasion the First Amendment does not help Trump. If the other charge relates to political campaigning the First Amendment can help Trump.

[Armchair]

And if there simply "isn't" another felony charge? What then?

[Sarcastr0]

The crime has been identified by the prosecutors, Armchair, if you followed the news at all.

I won't tell you what it is - it can be a fun exercise for you to figure it out!

[Mr. Bumble]

"The crime has been identified by the prosecutors, ..."
It has not and you saying it has does not make it so Captain Pichard.

[JesusHadBlondeHairBlueEyes]

But, listen, don't you understand that by Sacastr0's powerful incantations alone he can manifest things that don't exist into existence.

If Sacastr0 asserts something, you better believe it is totally and wholly accurate and true.

And he's Johnny-On-The-Spot breathing new facts into being exactly to support his beliefs, who cares of the reality that existed prior to Sarcastr0's magical words? That reality no longer exists. Only the reality that Sarcastr0 creates for all of us.

He's like a wonderful Bureaucrat God breathing life and happiness into us peon's like a good, and kind, Government worker does!

[Tilted]

For some reason the website isn't allowing me to post links to court documents. Trying again...

https://s3.documentcloud.org/documents/24479348/lawfare-docket-watch-state-of-new-york-memorandum-of-law-in-opposition-to-trump-omnibus-motions-nov-9-2023-e-filed-nov-15.pdf

[Tilted]

So maybe you have to include other text to post links? Anyway, here's another...

https://s3.documentcloud.org/documents/24479174/lawfare-docket-watch-trump-statement-of-facts-supporting-indictment-april-4-2023.pdf

[Armchair]

There isn't another felony charge. Not a one.

But please, point it out. Show me I'm wrong.

[David Nieporent]

If you mean of Trump, that's correct. But, then, there need not be another felony charge of Trump, or felony charge at all. An intent to abet or conceal another crime of any sort by anyone, anywhere, at any time is sufficient.

[Tilted]

Professor Kerr

I think the charges are an additional step removed from implicating First Amendment rights than what you suggest in the following passage.

“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.”

The allegation isn’t that President Trump kept false records to keep quiet that he paid off Ms. McDougal and Ms. Daniels. It’s that he kept false records to keep quiet that he coordinated with AMI and Mr. Cohen to have them pay off Ms. McDougal and Ms. Daniels.

Had he made the payments himself there probably wouldn’t have been an ‘other crime’ which he intended to commit or which he was trying to conceal with the falsified business records. But as the situation is alleged the other crimes are campaign contributions in excess of federal limits.

Whether or not President Trump has a First Amendment right to make campaign-related hush-money payments himself, I’m pretty sure the Supreme Court isn’t prepared to rule that federal campaign contribution limits are a violation of the First Amendment – even in the particular circumstance where those contribution limits are exceeded to make campaign-coordinated hush-money payments.

[Mike Hansberry]

Regarding American Media Inc's involvement, I do not think SCOTUS could ignore first amendment concerns.

That leaves us with Mr. Cohen, who has testified that he paid off Daniels and plead guilty to making an illegal campaign contribution. Since he did this on his own volition, the crime is his, not Trump's. If the prosecution is going to argue that Cohen actually paid Daniels at Trump's behest with an understanding that Cohen would later be reimbursed by Trump, how then was their an illegal campaign contribution? Trump can contribute as much as he wants to his own campaign, he is not bound by spending limits.

[Tilted]

To be clear, I’m not defending the propriety of the charges or asserting that I think the prosecution can prove all of its allegations.

That said, yes, the allegation is Mr. Cohen coordinated with President Trump and agreed to make the payment to Ms. Daniels to help Trump’s campaign and that he would later be reimbursed. But his being reimbursed doesn’t matter for FECA purposes because loans made by individuals are subject to the same limits as contributions. I can loan a campaign $2000 (or pay a bill of $2000 on its behalf) and be paid back later and do that over and over again. But I can’t loan a campaign $100,000 regardless of whether I’m later paid back. The outstanding balance can never be above the contribution limit.

Further, the 1st degree enhancement doesn’t require that the crime the defendant intended to conceal (by falsifying business records) be his own crime. Even if it was just Mr. Cohen’s crime – which he plead guilty to – the intent to conceal that crime could make it Falsifying Business Records in the First Degree rather than in the Second Degree.

As for AMI, why would its involvement necessarily be different for First Amendment purposes? Certainly it could, for its own purposes, make payments to various parties to acquire the rights to their stories or prevent them from telling their stories. But the allegation here is that it coordinated with President Trump to make such payments in order to help his campaign and that it would later be reimbursed for those payments. Those could be illegal in-kind campaign contributions just as Mr. Cohen’s payment to Ms. Daniels could be.

EDIT: And just to be clear, violation of federal election laws isn't the only argument the prosecution is making for the other crimes which were intended to be committed or concealed.

[Voize]

Since he did this on his own volition, the crime is his, not Trump’s.

The charges are falsifying with intent to commit, aid, or conceal another crime. Doesn't have to be Trump's other crime.

[Mike Hansberry]

Fair point, but that would make it harder to prove intent as the jury would have to believe that Trump was concealing Cohen's crime by the specific wording of the note on the check. The checks were made out directly to Cohen, this was not some Bidenesque "loan repayment" scheme delivered via several bogus bank accounts.

[David Nieporent]

Wow. That manages to be gibberish in every respect. The stuff about Biden is delusional. The stuff about Cohen misses the point entirely. The checks may have been made out to Cohen, but they falsely represented that they were a monthly retainer for legal services rather than a reimbursement for payments made to Stormy.

[Mike Hansberry]

Yeah sure, whenever I want to hide a payment, I send a check with my name on it.

[David Nieporent]

Um, he didn't need to hide the payment to Cohen. He only needed to hide the purpose of the payment to Cohen. I mean, that's kind of the whole point; if you're expending hundreds of thousands of dollars you need to make it look legit.

Now, he did need to hide the payment to Daniels, which is why (a) the agreement with her used a fake name for him and a fake name for her; and (b) Cohen created a dummy company, "Essential Consultants LLC," through which to funnel the funds paid to her.

[Tilted]

Sure, the prosecution will have to prove intent. But it will have testimony, e.g. regarding discussions with President Trump, that go to that point. It will also have the supposed grossing up of Mr. Cohen’s reimbursement. If the jury believes that happened, it’s somewhat compelling that President Trump agreed to pay Mr. Cohen about twice as much as Mr. Cohen paid Ms. Daniels – ostensibly so that he could report those payments as income rather than reimbursement and still be made whole after paying income tax on them.

That doubling of the reimbursement made to Mr. Cohen didn’t, btw, include the additional sums paid to Mr. Cohen for ostensibly legitimate purposes. The latter was also allegedly part of the $420,000 in payments to Mr. Cohen.

[Kenneth Almquist]

“Since [Cohen] did this on his own volition, the crime is his, not Trump’s.”

If Trump falsified business records in order to conceal a crime, does it matter who committed the crime Trump attempted to conceal?

Edited to add: My mistake; Voize already said above that it doesn’t matter.

[Mr. Bumble]

Is Judge Merchan related to Howard Stern's father?
Sit down, shut up.

[dwb68]

“Trump is charged with 34 counts of keeping false business records.”

Not quite: Keeping false business records itself is a misdemeanor in NY whose statute of limitations has passed. Trump is charged with keeping false business records in furtherance of another crime .
Bragg needs to prove two things: 1/records were falsified and 2/ there was an underlying crime covered up.

To reiterate: 1 is crime, but one whose statute of limitations passed. Bragg must also prove 2.

“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 is protected by the First Amendment.”

no: this is a circular argument and missed the point that this prosecution is a bootstrap.

What is the actual underlying crime here? Where it gets a little fuzzy is that the same fact that the money was labeled “legal fees” might support two crimes: falsifying business records *and* categorization of campaign donations (that is, the $130k hush money payment was campaign-related and should have been reported as such on FEC forms).

Calabresi’s point, i think, (not saying I agree with it) is that there is a first amendment defense to the underlying campaign donation-related (alleged) crime. I’d rate this argument as plausible (there is always a first amendment defense to campaign donations and funds use. Citizens United might support that view (arguably stretched like silly putty). The theory would be that he has a first amendment right to use campaign funds anonymously (what is the point of a hush money payment if the FEC makes you disclose it?).

Not saying I agree with it, or that appellate courts will buy it, but take away the underlying crime, the charges do go away, because of the way Bragg bootstrapped the charges to get over the stature of limitations.

I don’t think any court will ever reach the First amendment issue, because this case is a flimsy house of cards that will fall for other reasons. Bragg’s office needs to prove there was an underlying crime here, and so far I see no proof. A bug problem for Bragg is that the underlying campaign donation-related (alleged) crime was never brought.

Also: while I am not a Trump fan, saying "If you look at all the crimes Trump has committed" is very disturbing from a law professor. People (even Trump) are innocent until proven guilty by a jury in a court of law. People want the rule of law to prevail, even for Trump, but dont want to wait to see whether he can be convicted in court, which is not how the system works. The DOJ declined to prosecute the election-related campaign issues.

[Mike Hansberry]

Adding to your last paragraph, the prosecution is asking the jury to accept that “another crime” has been committed where there has been no conviction.

It is one thing for a law professor to blithely declare Trump guilty of crimes for which he has not been convicted, it is quite another for a judge to charge the jury to accept that “another crime” has been committed without a trial and conviction.

[ah....Clem]

Under NY law, a defendant does not need to be convicted of the crime that that the falsified bookkeeping was "in furtherance of" to escalate the charge to a felony. Nor do those crimes need to be NY state crimes.

You may disagree with that law, but the judge's job is to tell the jury what the law **IS** not what you or he thinks it should be.

[dwb68]

There still needs to be an underlying crime. I am waiting patiently to see what that was.

[Mr. Bumble]

Ask SarcastrO because he apparently knows what it is.

[NOVA Lawyer]

it's been specified by the state, as I pointed out to Armchair above. There are actually multiple alleged underlying crimes, one federal and the others state. If you're still waiting, you haven't been paying attention.

[dwb68]

I have yet to hear one alleged crime. Paying hush money and obtaining NDAs is not a crime (people seem to conveniently forget all the NDAs Michael Bloomberg had when he ran for President. He was just as much a womanizer and verbal abuser as Trump).

Failing to report campaign contributions may be a crime. But so far the jury hasn't heard it yet and its not in the indictment.

As far as the original post, to the extent the underlying crime is an election law violation, Trump may have a first amendment defense (not that I think any judge will buy it, but the 1st amendment is always a defense for a campaign spending violation).

[Sarcastr0]

I have yet to hear one alleged crime

And yet they are absolutely in this thread. Take some time, read carefully. I recommend Tilted and NOVA Lawyer in particular.

[dwb68]

Trump is not being tried in an internet thread, he's being tried in a courtroom, and the only evidence that matters is what the prosecutors present to the jury.

[Rev. Arthur L. Kirkland]

Then you should read the court-docketed documents or shut the fuck up.

[Sarcastr0]

Sure, and they know what the underlying crime is.

You're the one that's confused.

[Mike Hansberry]

I am not seeing that under NY Penal Law §175.10, please site where a defendant does not need to be convicted of the crime.

[ah....Clem]

NY Penal Law §175.10:

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.

It doesn’t say anything about needing a prior conviction for the other crime. Of course, the prosecution would need to prove beyond a reasonable doubt that there was “an intent to commit another crime or to aid or conceal the commission thereof” to escalate it to a felony. Whether they can do that to the jury’s satisfaction remains to be seen, but reading the statute as requiring a separate trial and conviction first is as absurd as Calabresi’s claim that there’s some 1A right to falsify business records.

[dwb68]

I think he is largely correct Trump does not need to be convicted. For example, see here, the closest case I could find: https://law.justia.com/cases/new-york/other-courts/2004/2004-51851.html

This is also a case that demonstrates what Bragg would need to prove. "from this evidence, the grand jury could find that the defendant knowingly and willfully violated the Election Law "

For falsifying records in the first degree, Bragg needs to show the underlying crime to the jury: i.e. that Trump violated election law, or something else.

[Tilted]

It's New York case law, as cited by the prosecution in pre-trial filings...

People v Thompson - https://law.justia.com/cases/new-york/appellate-division-first-department/2015/13935-5110-12.html

People v McCumiskey - https://casetext.com/case/people-v-mccumiskey

[Mike Hansberry]

Thanks, I'll give those a read

[not guilty]

“It is one thing for a law professor to blithely declare Trump guilty of crimes for which he has not been convicted, it is quite another for a judge to charge the jury to accept that ‘another crime’ has been committed without a trial and conviction.”

The “other crime” here need not be one that the accused committed himself. And there is a conviction here — resulting from Michael Cohen’s plea of guilty to a campaign finance offense and the judge’s acceptance of and entry of judgment upon that plea.

The details of Cohen's crime are described here. https://www.justice.gov/usao-sdny/pr/michael-cohen-pleads-guilty-manhattan-federal-court-eight-counts-including-criminal-tax

[David Nieporent]

Adding to your last paragraph, the prosecution is asking the jury to accept that “another crime” has been committed where there has been no conviction.

Yes, that's consistent with NY law. That having been said, there has been a conviction.

[not guilty]

dwb68, Donald Trump relocated from New York to Florida in 2018, and he has continuously remained in Florida since. His absence from the state tolled any New York statute of limitations.

[John Rohan]

Which is an absolute ludicrous excuse to ignore the statute of limitations. Donald Trump was president of the United States at that time. One of the most visible people in the world. In fact, he was THE most visible person on Earth.

He also visited New York more than once since moving to Florida, and those visits were well-publicized. If they wanted to charge him, NY prosecutors had no problem knowing where he or his attorneys were at any time.

[ObviouslyNotSpam]

Ah, so you don't like the law as it is.

[John Rohan]

I don't like how Alvin Bragg is interpreting the law.

[Letters_Triumverate]

Steven Calabresi has worms in his brain. His presence on this blog is as jarring as two minutes of Maury Povich in the middle of routine C-SPAN Senate coverage.

[NOVA Lawyer]

It's only jarring when sandwiched between conspirators like Orin Kerr, Will Baude, and/or Ilya Somin. Coming in between Bernstein and the South Texas College of Law guy, Calabresi isn't so jarring.

[Rev. Arthur L. Kirkland]

(Soon-to-be-former) Prof. Volokh is now firmly in the latter camp, too.

[Kleppe]

"Whether Trump would have a First Amendment right to pay Daniels to keep quiet is irrelevant, as that was not charged as a crime."

And yet this is universally referred to as the "Hush Money Trial", not the "Business Records Trial"

[Sarcastr0]

Well, that sure sounds legally dispositive!

[Kleppe]

As usual, you've missed the point.

[Rev. Arthur L. Kirkland]

This reminds me of law school, when we were instructed that headline writers were oft-overlooked authorities in legal analysis -- and warned that some lawyers disregarded this point.

[Commenter_XY]

Professor Kerr, I hope you keep posting here and engaging. I have personally learned a lot from your posts on 4A. What I appreciate is the practicality aspect when you write about 4A (LEO can do this, but not that - very useful info). One of my all time favorite posts I have read here at VC was a historical 'trial' with John Marshall you wrote about. Totally fascinating historical detour. I really appreciated that.

What is the 'mood' at UC Berkeley right now at the law school?

I guess I have a request on a future blog post. It would be very helpful to understand the 4A implications of the most recent section 702 renewal....what Fed govt actions are allowed under that section of the law and what Fed Govt actions would cross the line (for 4A).

[Roger S]

Trump has a First Amendment right to describe his transaction any way he wants, as long as he is not defrauding someone out of money. He described it as a "legal expense" and that is 100% accurate, if somewhat incomplete. Maybe a more complete description would be to say it was a blackmail payment.

Kerr does not even address the free speech argument. He only implies financial crimes, but Trump is not charged with a campaign finance violation.

[loki13]

“Trump has a First Amendment right to describe his transaction any way he wants”

Sadly, the IRS did not look kindly on this argument when I tried to claim all the dumbasses who comment here as my dependents.

[Roger S]

Right, lying to cheat the govt out of tax revenues is one of those 1A exceptions. Trump is not accused of doing that.

[kramartini]

Was the legal expense recorded as a business legal expense of the Trump Organization on the Trump Organization general ledger, or a personal legal expense of DJT on the Donald J. Trump personal general ledger?

Read Counts 9, 12, 15, 18, 21, 24, 27, 30, and 33:
https://manhattanda.org/wp-content/uploads/2023/04/Donald-J.-Trump-Indictment.pdf

[Roger S]

That indictment does not even allege what was false about the record, or whom was being defrauded, or what other crime was being concealed. If there were really a crime there, the indictment would say so.

[Michael Ejercito]

The indictment should have been thrown out on these grounds.

[Noscitur a sociis]

It is perhaps worth noting that Prof. Calabresi made a whole separate post to clarify that even he wasn’t floating a theory this dumb.

[Roger S]

Calabresi is not a Trump supporter, and only gives a limited defense of him.

[John Rohan]

There are also serious 1A implications for the judge’s gag order preventing Trump from mentioning other people involved in the trial. Then there’s a serious issue of fairness since those other people are NOT being gagged by this judge.

This certainly isn’t really a trial about falsification of business records, since that requires an intent to defraud someone. And you can’t defraud Trump/Cohen/Daniels when they all knew what the payments were for.

[David Nieporent]

Then there’s a serious issue of fairness since those other people are NOT being gagged by this judge.

Judges do not have authority to gag random people — only parties before them (and their lawyers). Moreover, Merchan expressly ruled that Trump could respond if those people said things about him.

[John Rohan]

Michael Cohen is not a random person. He's a witness in this trial. And he has publicly criticized Trump many times.

[kramartini]

Is it too much to ask for supposed lawyers to compare the alleged business records in the indictment with the definition in the relevant statute, namely, NY Penal Law Section 175.00?

Why is everyone so accepting of the notion that records of personal payments made to one’s personal lawyer with personal funds automatically become business records just because they are “kept and maintained” by a business?

Read carefully.

[ObviouslyNotSpam]

Why don't you just link back to the article in which you first raised this theory?

Save everyone some time.

[Tilted]

That issue was resolved as part of the omnibus motions to dismiss.

But when it comes to considering the matter for ourselves, the problem is that - as with so many aspects of the laws in our nation - the relevant definitions for "business records" and "enterprise" are so broad and vague that they can be stretched to cover just about anything a prosecutor might want them to.

The fundamental problem is that we have too many laws and many of them are too broad and/or vague. President Trump may be a victim of that reality in this instance, but it's a problem with countless other victims. We've criminalized everything such that we've effectively left it up to the whims and personal motivations of prosectors to decide who has and who hasn't violated the law.

[Roger S]

Maybe if we elect Trump, he will be motivated to reform the criminal justice system.

[David Nieporent]

We’ve criminalized everything such that we’ve effectively left it up to the whims and personal motivations of prosectors to decide who has and who hasn’t violated the law.

Mildly overstated, but a valid position. But there's no good argument that we ought to start our new leniency reform project with the person of Donald Trump.

[Tilted]

Sure, the "[w]e’ve criminalized everything" was hyperbole.

And, yes, I’m not more concerned about the general problem just because President Trump is now arguably falling victim to it.

It’s almost funny how many of my friends and family members I’ve recently had discussions on this very point with. I typically congratulate them on their sudden awareness of the problems with justice system abuses (at least as they perceive them) and endless vague laws that can be used against pretty much anyone a prosecutor is motivated to target. I also typically express my hope that their concern about such matters doesn’t mysteriously disappear when President Trump is no longer the poster boy for them.

The reality as I see it is this: Collectively we tolerate the existence of the various tools of of oppression (e.g., vague and countless laws, insufficient due process protections) because we like having them around to be used against ‘them’ – i.e., those we don’t like or with whom we don’t readily relate. We just reserve the right to complain when those tools are used against ‘us’ – i.e., those we do like or with whom we do readily relate.

Mostly we don’t stand on principle here (or elsewhere); we’re predominately guided by our respective tribalist inclinations.