The Volokh Conspiracy

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NY State v. Trump Does Violate Trump's First Amendment Rights

The 34 misdemeanor charges of falsifying business record to conceal some other crime clearly contemplate a violation of federal or state elections laws and that "other crime" is not a crime because of the First Amendment


My co-blogger Orin Kerr says that President Donald Trump's First Amendment rights are not being violated by the NY State prosecution of him because Trump is being prosecuted only for falsifying business records. But, the indictment of Trump specifically says that Trump had falsified business records "to conceal another crime". That other crime is presumably a violation of federal or NY State election law, and the First Amendment protects Trump's right to make hush money payments for purposes of winning the 2016 presidential election. The 34 counts in the indictment, in any event, are for misdemeanor offenses as to which the statute of limitations has run.

Shockingly, in this first ever prosecution of a former president, Alvin Bragg, the NY State District Attorney, is coy about what felony is being concealed by the allegedly falsified expenses. The reason he is being coy is because there is no other felony that Trump was concealing. And, if there were one it would be a state or federal campaign finance law, which would violate Trump's First Amendment rights.

All that Donald Trump has to do to get any verdict against him overturned is to insist that the predicate felony, which NY alleges he was concealing is not a crime under the Constitution because the First Amendment trumps campaign finance law (pun intended). To the extent that Buckley v. Valeo sustains any such campaign finance violation, Trump should ask the U.S. Supreme Court on his ultimate appeal to overrule Buckley v. Valeo.