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.

Comments

[Alan Vanneman]

Remember, all you lawyers, this is the same Steven Calabresi who, when, prior to the 2020 presidential election, then President Trump suggested that the election might need to be postponed because of covid, stated the following:

"But I am frankly appalled by the president’s recent tweet seeking to postpone the November election. Until recently, I had taken as political hyperbole the Democrats’ assertion that President Trump is a fascist. But this latest tweet is fascistic and is itself grounds for the president’s immediate impeachment again by the House of Representatives and his removal from office by the Senate."

What happened to El Trumpo's 1st Amendment rights back then, Stevo? And this man teaches at both Northwestern and Yale. Go figure.

[NvEric]

Does not follow

[Michael Ejercito]

Tony Evers suggested the same thing.

[Rev. Arthur L. Kirkland]

.

And this man teaches at both Northwestern and Yale. Go figure.

Affirmative action for clingers at some strong law schools. I sense the Volokh Conspiracy has taught legitimate, mainstream schools such as UCLA, Georgetown, and Northwestern a valuable lesson in this context.

[david42]

“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….” Spoken like someone who has never actually litigated a case in a courtroom. Even if your theory is correct, it does not mean that the Supreme Court will grant cert and agree with your argument.

[edbeau99]

More importantly, in the court of public opinion this is seen as blatant political interference and has been a significant reason for the rise of Trump's polling in the past two weeks (along with the anti-Semitic demonstrations on campuses).

[Stephen Lathrop]

edbeau99, three lies in 3 lines. Solidly up to MAGA standards for beginners. But not even close to the mendacity standard set and sustained by Trump himself.

[Stephen Lathrop]

My co-blogger Orin Kerr . . .

I can imagine Calabresi giggling as he typed that.

[Rev. Arthur L. Kirkland]

Prof. Kerr has only himself to blame. The Federalist-Republican-Heritage-Olin-NRA kooks are not forcing him to stay.

[not guilty]

The OP states:

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.

Wrong, Professor. New York Penal Law § 175.10 does not require actual concealment of another crime. Intent to conceal at the time of the falsification of business records will suffice. There is no requirement that the "other crime" be a felony. Intent to conceal commission of a misdemeanor will suffice. And there is no requirement that the "other crime" intended to be concealed was or will be committed by the defendant accused of the falsification of business records.

Here Michael Cohen's conviction of a campaign finance violation pursuant to his 2018 guilty plea evinces the actual commission of another crime within the meaning of § 175.10. If the prosecution can show beyond a reasonable doubt that Donald Trump in 2017 falsified business records with intent to conceal Michael Cohen's crime, the jury should find Trump guilty.

[NvEric]

What false entries, or records, or falsified business records ?

Was Trump even in control of his business at the time ?

[not guilty]

Per NY Penal Law 175.00(2), “business record” means any writing or article, including computer data or a computer program, kept or maintained by an enterprise for the purpose of evidencing or reflecting its condition or activity.

Checks and check stubs are writings evidencing or reflecting business activity.

[kramartini]

And what exactly makes the records "business records"?

[Stephen Lathrop]

Kramartini, As opposed to personal diary entries? I suppose Cohen would not have had to plead guilty if he had falsified those.

[kramartini]

Fun hypothetical. If your personal diary entries were “kept and maintained” by the Trump Organization, would they then be “business records” under NY Penal Law Section 175.00?

Hint: The same answer applies to records of payments to Trump's personal lawyer with his personal funds.

[Lee Moore]

According to this Reason article, the prosecutor mentioned New York State Election Law Section17-152 :

https://reason.com/2024/05/03/the-new-york-case-against-trump-relies-on-a-twisty-legal-theory-that-reeks-of-desperation/

"the primary crime that we have alleged is New York State Election Law Section 17-152." That provision says "any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor."

[tylertusta]

"...by unlawful means"

Ah yes. I bet it's used just like "corruptly" has been used in the J6 context.

[Josh R]

Assuming the prosecution assert's (*) the crime Trump intended to conceal is what Cohen plead guilty to, can Trump raise a defense Cohen's conviction should be set aside on First Amendment grounds (acknowledging that is a long shot given the state of campaign finance disclosure jurisprudence and the fact Cohen never raised the defense).

(*) Some posts have claimed the prosecution has settled on what crime Trump intended to conceal. Other posts say it is not settled. What's the true scoop? Was loki right when he said jury instructions will be key on this point?

[NvEric]

Accurate descriptions in the many comments are severely lacking as is Orin's post.

[kramartini]

Once again, people skip over the threshold question of whether records of Trump paying his personal lawyer with personal funds for matters having nothing to do with the business of the Trump Organization meet the relevant definition of “business records” as defined in NY Penal Law Section 175.00.

[Noscitur a sociis]

I'd say it's less that people skip over it, and more that the judge expressly rejected it when Trump's lawyers raised it.

https://www.nycourts.gov/LegacyPDFS/press/PDFs/People-v-DonaldTrump2-15-24Decision.pdf

[kramartini]

Finally, something to chew on. Thank you.

[kramartini]

This is a very interesting ruling by the judge at the pre-trial stage.

First, I would have been surprised if there were a dismissal pre-trial for insufficient evidence, since evidence has not been introduced.

Second, the Court acknowledges that the DJT General Ledger overall is a personal record of DJT, but points out that certain entries were business records. It concludes that therefore the entire DJT General Ledger is a business record. I believe that this is erroneous. Instead this raises a fact question for the jury as to whether or not any given entry in the DJT General Ledger is a business record (a fact question that would exist anyway). Note that the indictment is on a transaction by transaction basis, and the question is whether or not a given transaction constitutes a business record. That is, is the record of a given transaction kept for the purpose of reflecting the "condition or activity" of the Trump Organization business?

Commingling is bad practice, but can be undone via tracing of funds. What a headache.

[David Nieporent]

Once again, you seem to think that you've come up with a brilliant insight that totally escaped Trump's lawyers.

[kramartini]

Trump's lawyers raised some good points, but I think got it backwards. Their contention that the records were not business records because the invoices were paid with personal funds was properly rejected. Source of funds is not determinative.

Rather it is the nature of the services that should govern. That is, if the services were personal, not business, records related to the services are not business records since they fail to reflect a "condition or activity" of the business.

If the services were ultimately booked as personal legal services of DJT, and the services in fact were personal to DJT, all records related to the invoices are not business records since they do not reflect the "activity or condition" of the business.

[Mr. Bumble]

Trump lawfare, a zombie apocalypse that will not die.

[santamonica811]

Ah, some fresh whoring, from noted whore-blogger Calabresi. Fish gotta swim; birds gotta fly. Calabresi's whoring for Trump, till the day that he die(s).

Least surprising OP this week. I look forward to next week's latest installment of "Why Trump is being treated so meaning and unfairly by all you ruffians. Wah...wah!!!".

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Ah, some fresh commenting from noted whore export santamonica811.

[santamonica811]

You're welcome. "Whore" gets reserved for those rare people who know what's moral and make a conscious decision to ignore their better angels. (And yeah; I have a pretty firm idea in my mind how they would have acted in 1930s Germany. At least then, they'd have the excuse, "I might be murdered if I don't sacrifice my true beliefs.") I skated right up to the Godwin's Law line right there. 🙂

Calabresi is a whore. Ted Cruz is a whore. Lindsay Graham? Yeah, probably. But the 95% of posters here? Nope. I think they're just too stupid or too hypnotized by their pro-Trump TDS to see or think rationally any more. So, no whoring from them. Merely dumb human beings.

[Sisu]

Criticism of Prof Calabresi aside, should the "appeal" of the "expected decision" of this "judge" (conflicted, patriarch (or puppet) of a small cadre of psychotic, demonrat female (at birth) relatives) and "court" be so readily argued, then perhaps the ancillary consequence will be a total negation of "immunity" for county DAs (as well all members of state and local judiciaries). ...

Unrelated, is it any wonder that history appears to teach, once the long tolerant People realize they have nothing left to lose and everything to gain by eradicating those who have entered the voluntary servitude of competing tyrants: the "judges" and "prosecutors" of all such candidate tyrants are the first removed from office (permanently, for life) ... (?)

[Rev. Arthur L. Kirkland]

Open wider, clinger.

-- your betters

[JesusHadBlondeHairBlueEyes]

Which crime ridden Democrat shithole do you live in?

[Jason Cavanaugh]

Your mom.

[Sisu]

Rev., You are a "relic" (a worthless timepiece). ...Do you ever get outside ? ... You need to get beyond the "Rosie twins". ... Get a new moniker or die (Show the rest of us how to "post-partum" self-abort). ...

[ObviouslyNotSpam]

You should definitely do more drugs.

If you don't do drugs, you should definitely start.

[Sarcastr0]

The incel scare quote fetishist community is pretty small to do a revolution. But who knows, maybe it will soon realize it has nothing to lose but it's "chains."

[MoreCurious]

Keep digging that hole, Calabresi. Even if your brain is turning to mush, it's good cardiovascular exercise.

[Rev. Arthur L. Kirkland]

Current propositions board:

Stroke(s) 1-1
Hijacked account 3-1
Alzheimer's 5-1
Long-term prank 9-1
Drugs 15-1
Brain injury 15-1
Alcohol problem 15-1
Infection 25-1
Vitamin deficiency 99-1
Thyroid problem 99-1

[santamonica811]

I'm pissed that you're totally ignoring my "He's a whore" option. I think it's--in fact--more likely than any of the other (non-stroke) options you listed.

[Randal]

So... you've backed off "First Amendment Right" and into "not a felony." Ok!

[Stephen Lathrop]

Sisu, quite a while ago, I had to stop mentioning to acquaintances my participation in comments on this blog. I was concerned that people whose respect I valued might look at it, and judge me accordingly.

But I still lingeringly supposed that it might prove constructive to leave unmuted most of the commenters, even the stupidest ones. But I discovered that a consequence of that liberality was unsupportable despair.

So now I have started muting liberally, with an eye to viewing only the comments of folks who have either offered edifying information, or at least conscientious opposition. That worked. I am much happier, and enjoy more free time as a result.

Bye, Bye.

[Vandalia]

And Jonathan and Diana Toebbe should have their convictions for espionage (technically, "conspiracy to communicate Restricted Data") overturned since there is no "Restricted Data" exception to the First Amendment either.

[John Rohan]

"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."

This is the part I am having a difficult time understanding, maybe a lawyer can help out. Alvin Bragg previously said the law doesn’t require him to tell us what this other crime is. But how is that legal?

Even putting the principle of habeas corpus aside, doesn’t Trump’s attorney need this information before the trial so he can address it in his opening statement? How is he supposed to respond to charges when he doesn’t know exactly what they are?

[JesusHadBlondeHairBlueEyes]

This is Trump Law we're dealing with. it only relies upon emotions and Deep State lies.

[Tilted]

I’ve seen this same basic talking point repeated, in one form or another, over and over. I’m genuinely curious where it’s coming from. Has one of President Trump’s lawyers claimed that they don’t know what the alleged other crimes – those which were allegedly intended to be committed or concealed – are? Has some popular pundit speculated to that effect?

The prosecution has made clear what the alleged other crimes are and has laid out in considerable detail what acts, and by whom, those crimes are comprised of.

At a minimum the prosecution did this in its statement of facts supporting the indictment and in its memorandum of law opposing the omnibus motions to dismiss. The judge discussed those other crimes in his order denying the motions to dismiss and he granted President Trump’s motion to inspect the grand jury minutes which would have revealed the evidence presented to the grand jury relating to those other crimes.

If President Trump’s defense team isn’t aware of what the other crimes are, or doesn’t understand the prosecution’s arguments as to why they are crimes, then that would seem to be due to its own incompetence or willful ignorance. That information has been provided to it.

[John Rohan]

Did you even read the article? I'll quote it again: “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.”

[Tilted]

Yeah, I read that. But it isn't a fair characterization of reality. I'd guess Professor Calabresi knows that and that's why he used a weaselly characterization (i.e., "coy about what felony") rather than making a more direct assertion, such as many others have made, about the prosecution not telling us what the alleged other crimes are.

More to the point, the suggestion in your post that the defense didn't know what the alleged other crimes were is mistaken and yet it reflects a talking point I've seen repeated ad nauseam. That's why I expressed my curiosity: Did someone from President Trump's defense team make that claim?

I'd ask whether you have read relevant court documents from this case? The prosecution's statement of facts supporting the indictment? The defense's memorandum of law supporting its omnibus motions to dismiss? The prosecution's memorandum of law in opposition to those omnibus motions? The judge's order regarding those omnibus motions.

The reality is that the prosecution clearly identified the alleged other crimes a long time ago and provided considerable information as to what acts it believes constituted those crimes.

The defense's own filing (from last September) acknowledged what those alleged other crimes were, even referring to each of them by their code numbers (e.g. New York Law §§ 1801(a)(3)). The defense went on to make different arguments why each of those alleged crimes wasn't a viable object offense and thusly that the charges should be dismissed. The defense has known for a while what the other alleged crimes were.

Further, the judge ruled (in February) on what alleged other crimes the prosecution could argue and which it couldn't. He also told the prosecution that at trial it would be limited to arguing those alleged other crimes - no surprises arguing new alleged other crimes which hadn't already been identified.

So, again, why do so many people seem to believe something that is plainly not true?

[ObviouslyNotSpam]

Why do you think Trump's lawyers haven't been told what crime was allegedly being concealed? Did they say that?

[John Rohan]

They weren't told until after the trial started. And even then, Alvin Bragg was being vague about it.

[Tilted]

See my post above. The defense was on notice by at least April of last year, when the prosecution filed its statement of facts supporting the indictment, as to what other crimes were being alleged.

[John Rohan]

No, see this reason article. In May of last year, Bragg’s office suggested several possibilities, but didn’t say which, if any, was the actual “other crime” in this trial. It really smacks of “I don’t know, but I’m sure we will find something”. |

https://reason.com/2024/04/15/alvin-bragg-says-trump-tried-to-conceal-another-crime-what-crime/