Trump's Trial and the First Amendment

Orin Kerr's reading of NY criminal law is overly broad and would chill constitutionally protected speech

My co-blogger Orin Kerr argues that the NY Falsifying Business Records law, Section 175.10 includes two elements: 1) falsifying business records; and 2) doing so "when the intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof." Orin hypothesizes that the part of the law mentioned in Part 2 of this test need not survive First Amendment scrutiny by itself.  As a matter of statutory interpretation, Orin suggests that the second element of the Falsifying Business Records charge need only be an element of the Section 175.10 crime. And an element of the crime need not be constitutional itself.

This is not true. Donald Trump had a First Amendment right to spend money to win the 2016 presidential election by safeguarding his reputation, and Orin's construction of NY law would burden Trump's core political speech. NY cannot have a two element crime, both of which elements need to be proved, if one of the elements violates the First Amendment. Orin analogizes Trump's case to the case of someone who engages in battery during a political debate. Obviously, there is no right to engage in battery while engaging in First Amendment protected debate. But, there is a First Amendment right to spend money to protect your reputation and your family right before a presidential election by paying false accusers to stay silent. Doing so is not a crime.

Alvin Bragg says that the other crime that Trump falsified business records to conceal is that described by NY Election Law Section 17-152: "Any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means *** shall be guilty of a misdemeanor." Paying hush money, like buying time for television and radio advertisements, is not an "unlawful means" of trying to win an election. The First Amendment completely protects what Trump is alleged to have done in 2016.

In fact, the person who has acted wrongly here is Alvin Bragg who for the first time in 235 years of American history has indicted a former president who is the Republican nominee for president in 2024 just to muddy him up.  Bragg did this by splashing the irrelevant facts of the Stormy Daniels hush money allegation all over the front pages of the newspaper just as the 2024 presidential campaign gets kicked off. Republican nominee Trump cannot campaign during three vital weeks of the campaign season because Alvin Bragg has him locked up in a NY courtroom where the judge has subjected Trump to a gag order. Bragg and the judge trying Trump's NY State criminal case have committed constitutional torts for which they cannot be sued only because of our dumb prosecutorial and judicial immunity rules.

Comments

[Josh R]

The First Amendment protects hush money payments (which don't need protection because they aren't illegal). But, it doesn't protect concealing the payments under current campaign finance disclosure jurisprudence.

[Dr. Ed 2]

concealing it from whom? Himself?!?

[tylertusta]

Clearly people who lie to themselves are horrible people and deserve to have multiple felonies stacked up, one after the other.

[Michael Ejercito]

Hush money payments are not subject to campaign finance disclosure jurisprudence.

There is far stronger argument that the payments violated Sharia law.

[Josh R]

If they weren't subject campaign finance disclosure law, then the payments aren't facilitating speech. Once again, no First Amendment violation.

[Michael P]

The First Amendment protects speech beyond what is related to election campaigns.

[damikesc]

No speech exists outside of political speech?

Perhaps he wished to not be embarrassed personally?

[edbeau99]

And as we saw with the other major effort to conceal campaign payments by disguising them as legal expenses, which the DoJ did prosecute, all that happened was a fine to the DNC and the Hillary Clinton campaign organization. We did not see Hillary Clinton sitting in a court room for weeks. That is the difference that convinces people this is a politically motivated trial. Just a reminder of the complaint to the FEC:

“By intentionally obscuring their payments through Perkins Coie and failing to publicly disclose the true purpose of those payments,” the campaign and DNC “were able to avoid publicly reporting on their statutorily required FEC disclosure forms the fact that they were paying Fusion GPS to perform opposition research on Trump with the intent of influencing the outcome of the 2016 presidential election,”

[Michael Ejercito]

The Clinton campaign admitted to this.

Does this mean the whole "Trump Colluded with the Russians®™ to Steal the 2016 Election" propaganda campaign was a criminal conspiracy?

[JesusHadBlondeHairBlueEyes]

Yes it was a criminal conspiracy. And if there was any real justice in this country, Hillary, Elias, and all those FBI, DOJ, & FISA court traitors/coup plotters would be rotting away in prison.

[Kazinski]

As former FEC commissioner Bradley Smith has stated, there is a better case that expending campaign funds to cover up a private affair violates campaign finance expenditure laws than a candidate using his own funds.

For instance, a candidate wishes to look well tanned and rested for his debate in 2 weeks, so he decides to spend a week in a 5 star Caribbean resort, and not do any campaign business or take any aides with him to the resort.

Is he taking a private vacation and must use his own funds, even though his ultimate motivation is a better performance at the debate, or is he violating the law by using his own funds, or funds from a rich friend?

Or is he obligated to only use campaign funds because his campaign will probably benefit?

[Brett Bellmore]

It doesn't REQUIRE not concealing them, either, because they're not campaign expenses to begin with.

[Noscitur a sociis]

Obviously, there is no right to engage in battery while engaging in First Amendment protected debate. But, there is a First Amendment right to spend money to protect your reputation and your family right before a presidential election by paying false accusers to stay silent. Doing so is not a crime.

But there’s certainly no right to falsify records to conceal the fact that you made those payments. So as a response to Prof. Kerr’s analogy, I’m not sure this has a lot of force.

Also, why do you keep insisting on the rather dubious claim that the allegations were false? Surely your argument applies in equal force in either case, so why represent yourself as credulous enough to believe that?

In fact, the person who has acted wrongly here is Alvin Bragg who for the first time in 235 years of American history has indicted a former president who is the Republican nominee for president in 2024 just to muddy him up.

Well to be fair, it would have been pretty weird if someone had indicted the Republican nominee for president in 2024 in like 1932!

[JesusHadBlondeHairBlueEyes]

What do the GAAP rules say about recording hush money payments in the ledger?

[MatthewSlyfield]

"But there’s certainly no right to falsify records to conceal the fact that you made those payments."
True, but without concealment of an underlying crime the records violation is only a misdemeanor on which the statute of limitations has expired.

To get past the statute of limitations Bragg has to elevate the offenses felonies which requires the concealment of another crime. The argument is is that the other crime can't be something protected by 1A (because then it's not a crime).

[David Nieporent]

which requires the concealment of another crime

It does not.

[tylertusta]

That's Bragg's theory of the case- that the payments were recorded in such a way as to conceal a violation of another law.

[Michael P]

Nieporent is nitpicking that the relevant element of the charged crime is "intent" to conceal a crime rather than actually doing so. It's how they turn partisan mindreading into convictions of political minorities.

[not guilty]

How on earth is pointing out that an essential element of a crime is -- wait for it -- exactly what the statute says it is, "nitpicking"?

[Michael P]

It's nitpicking because it's irrelevant to the point MatthewSlyfield made, which was that the underlying "crime" appears to have been an entirely legal action. That all DMN had was nitpicking concedes the overall point.

[not guilty]

David has the explicit language of the statute which Donald Trump is accused of violating. That is in no way "nitpicking," and he concded nothing.

Trump intended to conceal an actual crime, to which Michael Cohen pleaded guilty and for which he served prison time. The campaign finance provisions that Cohen violated have been upheld against a First Amendment challenge by SCOTUS in Buckley v. Valeo, 424 U.S. 1 (1976).

That is all true no matter how much MatthewSlyfield yaps and yammers.

[damikesc]

The misdemeanors were comfortably beyond the statute of limitations.

So, Bragg is prosecuting and the judge is permitting the prosecution of what is, per you, a non-crime.

That seems much better.

[not guilty]

Donald Trump relocated from New York to Florida in 2018 and has remained continuously out of state since. That tolls any statute of limitations that would otherwise apply.

[Bored Lawyer]

The statute says:

Section 175.10 includes two elements: 1) falsifying business records; and 2) doing so "when the intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof."

You keep saying that there is no need to show another crime. But the statute clearly says you need an intent to either commit another crime or aid or conceal the commission thereof. True, you don't have to show an actual commission of a crime, but you do have to show that the intent was to commit, aid or conceal another crime. "Another crime" means something independent of falsifying records.

[Sarcastr0]

You keep saying that there is no need to show another crime.
…
True, you don’t have to show an actual commission of a crime
Welp, there you go!

“Another crime” means something independent of falsifying records.
Yes, and no one says otherwise. But as you yourself just said, that other crime is not an element, only the intent to commit, aid or conceal it is.

[Bored Lawyer]

The element is to intending to conceal something that is substantively a crime. That means the person who had the intent (here Trump) had to intend to conceal a crime, not merely something embarrassing.

Suppose an executive in a company is sent a video showing him picking his nose in public. Very embarrassing. So he pays someone off to buy the video and take it off the internet. He uses company funds for the payoff, and falsifies records to cover up the payoff.

Is he guilty of the misdemeanor? Yes. Is he guilty of the felony, no. Because picking your nose in public is not a crime, although it's embarrassing.

[Josh R]

We all agree. The jury will have to be convinced, beyond a reasonable doubt, that Trump intended to conceal some other crime (whether or not the other crime occurred) besides falsifying business records.

[Bored Lawyer]

Right. And if the "crime" he thought he was concealing in fact is First Amendment protected activity, then the charge fails. Do you agree?

[ah....Clem]

If the Federal and NY state election laws cited by the prosecution are overturned as unconstitutional due to 1A protection, then the case would presumably fail. I doubt that will happen at the trial level - given the current composition of the Supreme Court, that could happen on appeal. We would know in a few years...

But that leaves the Tax l,aw SS 1801(aX3). 1802 cited by the prosecution. Is there a 1A right to falsify tax returns?

[not guilty]

"Right. And if the 'crime' he thought he was concealing in fact is First Amendment protected activity, then the charge fails. Do you agree?"

Exceeding monetary limits on individual campaign contributions to influence a federal election is not First Amendment protected activity. Buckley v. Valeo, 424 U.S. 1, 24-29 (1976). Professor Calabresi has acknowledged as much, albeit while contending that Buckley should be overruled or modified.

A state trial court judge has no power to ignore controlling Supreme Court precedent.

[Roger S]

So the prosecution is going to prove that Trump intended to help Cohen conceal his violation of campaign finance law? No, the whole thing is absurd. Trump was not seeking campaign donations, and was not seeking to cover up anyone's violation of that law. Neither Trump nor anyone else thought there was a violation. Trump was just paying a legal bill.

[Bored Lawyer]

Buckley also held that the First Amendment bars limits on a candidate spending money on his own campaign.
As near as I can figure out what is alleged here, Trump reimbursed Cohen from his own pocket for the hush-money payment. So if it's a campaign contribution, then under Buckley it is Constitutionally protected. Trump could have paid Stormy Daniels a billion dollars, and no election law may Constitutionally bar that.

[not guilty]

"Trump could have paid Stormy Daniels a billion dollars, and no election law may Constitutionally bar that."

Coulda, woulda, shoulda. Donald Trump didn't pay the money to Stormy Daniels; Michael Cohen did (in coordination with Trump's campaign apparatus), with money that Cohen borrowed. That was an illegal campaign contribution, to which Cohen pleaded guilty and for which he went to prison. Trump cooked the books in order to conceal Cohen's crime from federal election officials.

[Bored Lawyer]

Donald Trump didn’t pay the money to Stormy Daniels; Michael Cohen did (in coordination with Trump’s campaign apparatus), with money that Cohen borrowed.

Are you saying Trump did not pay Cohen back? My impression is that he did. Which would make it Trump's contribution, not Cohen's.

[not guilty]

"Are you saying Trump did not pay Cohen back? My impression is that he did. Which would make it Trump’s contribution, not Cohen’s."

Uh, no.

[Bored Lawyer]

Explain yourself. Trump did not, in fact, pay back the money? Or even so, it's Cohen's contribution as a legal matter?

(BTW, that Cohen plead guilty means nothing. One, Cohen was facing much more serious charges. Two, the judge in the Trump case already ruled that the fact of Cohen's conviction may not be used in this trial. )

[not guilty]

No, the judge has not ruled that the fact of Cohen’s conviction may not be used in this trial. Donald Trump sought by a motion in limine to preclude evidence pertaining to Cohen’s “federal guilty plea to a FECA violation.” Judge Merchan ruled:

Defendant’s motion is granted to the extent that the People are precluded from arguing that Cohen’s guilty plea to FECA violations is probative of Defendant’s guilt in the instant matter. However, testimony about the underlying facts of the guilty plea are admissible provided the proper foundation is laid. Further, Cohen may be asked whether there was a criminal proceeding related to his actions with respect to the FECA violation. Of course, the Court can revisit this ruling if either side opens the door in a way that warrants this Court’s reconsideration.

https://s3.documentcloud.org/documents/24485367/31824-merchan-ruling-on-trump-motion-in-limine.pdf

The prosecution can elicit the facts underlying Cohen’s FECA plea and that there was a criminal proceeding related to his actions with respect thereto. The Court's in limine ruling would not seem to preclude the prosecution from eliciting facts showing that Michael Cohen committed a crime which Trump intended to conceal when Trump falsified business records. The defense, if it chooses, can elicit Cohen’s prior conviction for purposes of attacking his credibility.

[Bored Lawyer]

NG — nothing you say contradicts what I said. That Cohen was convicted is not a factor. That he committed certain acts certainly can be used as proof that Cohen committed a crime, presumably the crime that Trump allegedly intended to conceal.

Now back to my question. Is it your contention that Trump did not reimburse Cohen, and that the intention all along was not to do so? IOW, Cohen was the fixer, but Trump provided the funds. And that was understood from the beginning how it would work — the payoff would come out of Trump’s pocket.

If so, then if there was an election contribution (which is open to doubt, give the recent testimony, but put that aside), then it is Trump’s contribution, not Cohen’s. Which is protected by the holding of Buckley v. Valeo.

Now someone mentioned tax fraud above. There has been little discussion of that on this site, but that is a different issue altogether. Buckley holds a candidate can spend as much of his own money as he wants. But it does NOT say he gets a tax deduction, let alone lie about it to the IRS or the state tax authorities.

[Tilted]

Bored Lawyer -

“Explain yourself. Trump did not, in fact, pay back the money? Or even so, it’s Cohen’s contribution as a legal matter?”

It’s the latter. Under FECA it doesn’t matter whether the money was paid back. A loan or advance from an individual is treated as a contribution. That’s not case law. That’s in the actual text of the law.

Per FECA:

“The term ‘expenditure’ includes—

(i) any purchase, payment, distribution, loan, advance, deposit, or gift of money or anything of value, made by any person for the purpose of influencing any election for Federal office; and

(ii) a written contract, promise, or agreement to make an expenditure.“

Also per FECA:

“[E]xpenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate”

What the prosecution alleges happened meets all of the elements for an illegal (as excessive) campaign contribution as regards the payments to both Ms. McDougal and Ms. Daniels.

In its omnibus motions for dismissal the defense made lots of arguments, to include one as to why a FECA violation wasn’t a valid object offense in this case. But it didn’t argue that the facts, as alleged by the prosecution, were insufficient to make out a FECA violation. It also didn’t argue that what was alleged to have happened was protected by the First Amendment and thus couldn’t be a valid object offense. Did it understand those arguments had no chance of succeding?

[Tilted]

Bored Lawyer –

“Now someone mentioned tax fraud above. There has been little discussion of that on this site, but that is a different issue altogether. Buckley holds a candidate can spend as much of his own money as he wants. But it does NOT say he gets a tax deduction, let alone lie about it to the IRS or the state tax authorities.“

We’ve discussed that issue a little in one of the other threads on this subject. A violation of NY tax law is one of the alleged other crimes. But it isn’t about President Trump providing false information on tax forms. It’s about Mr. Cohen providing false information on tax forms.

Briefly… the allegation is that they agreed that President Trump would gross up his reimbursement of Mr. Cohen for his $130,000 payment to Ms. Daniels and for a separate $50,000 expense. Instead of $180,000, President Trump would pay Mr. Cohen $360,000 for those things. That way Mr. Cohen could claim that money as income rather than reimbursement and still be made whole after paying taxes on it. The prosecution’s position is that doing that violated state tax law even though it resulted in Mr. Cohen paying more in taxes than he should have or otherwise would have.

[Tilted]

Yes.

[Retired Lawyer]

I think the predicate “crime” for the Business Records statute is the Election Law Statute. And the predicate “unlawful means” for the Election Law Statute is the Business Records statute. A bit circular, but I see no problem with circularity in this context.

To me, the more interesting questions are: (1) whom did Trump intend to defraud, an element of the Business Records statute? and (2) Does the Election Law Statute cover federal elections. I don’t know enough New York law to opine on these questions.

[Noscitur a sociis]

I don’t know enough New York law to opine on these questions.

You must be new around here.

Let me introduce you to a friend of mine called Dr. Ed. He’s really going to open things up for you.

[NvEric]

The Election Law Statute is a NY statute for NY state elections only.

[Noscitur a sociis]

It’s true that Trump argued that, but the judge expressly rejected that argument, in analysis that seems persuasive to me.

[Kazinski]

So if a candidate is running is 50 states, and he comes up with a campaign strategy that is legal Federally and in 49 states, then he risks being a felon and spending his term in jail in that 1 state?

Interesting, and a guaranteed loser of an argument.

[JesusHadBlondeHairBlueEyes]

If it hurts Trump, then the legal analysis makes sense to Noscitur a socilis (and not guilty too). If it doesn't hurt Trump, then Noscitur & ng are super skeptical and think the analysis is weak.

[Noscitur a sociis]

Yes, that’s how laws work—you’re supposed to obey all of them!

[Kazinski]

The election law statute cannot govern federal elections, because NY law can not regulate a campaign trying to appeal to the voters of Wisconsin.

[Rev. Arthur L. Kirkland]

Which “false accusers” is this affirmative action case clinger mumbling about?

Be specific, wingnuts. If you have the courage.

[Balisane]

Bragg is a despicable mongrel

[Rev. Arthur L. Kirkland]

These bigots are your fans, defenders, and target audience, Volokh Conspirators . . . and the reason your deans wish you would resign today.

I hope legitimate law schools have learned their lesson with respect to affirmative action for movement conservatives on faculties.

[Careless]

i'm not going to try to judge this, but Kerr has gotten into some fights over this I did not expect, from different directions

[NvEric]

When he opened with "... if you look at all the crimes Trump has committed,..." it disqualifies him from further consideration.

There are no "crimes" to charge Trump with. None in this case, nor any of the other pending ones. There are crimes being committed against Trump through false charges, lack of understanding law, conspiracy, and others.

[Brett Bellmore]

"When he opened with “… if you look at all the crimes Trump has committed,…” it disqualifies him from further consideration."

That was generally my reaction. He couldn't even bother to say "alleged to have committed"? He lost a lot of respect in my book with that line.

[ah....Clem]

The Trump organization was found guilty in a criminal trial.
Trump himself was found to have committed sexual assault (a crime the last time I checked) in the E Jean Carol civil case.

No need to equivocate with alleged.

[Brett Bellmore]

The Trump Organization isn't Trump. And, yeah, in a civil case, excuse me if I'm not impressed. If he'd meant to say, "The one crime Trump has been found civilly liable for", he could have said so. It isn't what me meant.

[Rev. Arthur L. Kirkland]

What do you think about the verdict adjudging Trump liable for sexual assault?

[Rev. Arthur L. Kirkland]

That's what I thought.

Or maybe Mr. Bellmore is busy searching for Obama's birth certificate today.

[iowantwo]

A civil law suit. Not guilty of crime. Rather liable for injures.

[Randal]

Aw, Orin tried extending an olive branch, but you broke it in half by retreating to your silly counterfactual strawman, that “paying hush money” is itself part of the crime charged in any way. It’s not. The theory of criminal liability here wouldn’t burden Trump’s ability to pay hush money for electoral purposes at all. Try to recover from your stroke(s) before posting any more attempted legal analyses.

[Krayt]

CNN: “Let’s get back to discussing the Trump hush money trial.”

They’ve said it so much it deserves a proper noun. The Trump Hush Money Trial.

At this point, people are sounding like Republicans defending the investigation of Bill Clinton that it’s not about him having an affair, but about crimes lying under oath.

Okay, Lancelots!

ETA: Talking heads read this blog, among others, to find things to babble. Let's see if CNN backs off "Trump Hush Money Trial" as the nomenclature.

[Randal]

Oh I like this new theory! It's even more creative than Calabresi's.

If I understand it, Trump has a First Amendment right to commit crimes if the trial for the crime gets popularly branded as being about something that Trump has a First Amendment right to do. Did I get that right?

Talk about trying a case in the media!

So when you charge Biden with accepting bribes, he can raise a First Amendment defense as long as the media refers to it as the Biden Paid Advocacy case.

[Roger S]

There is no 1A right to commit crimes. That is just nonsense that Kerr made up.

[Randal]

You mean Calabresi, naturally.

[not guilty]

Professor Calabresi posits, "Donald Trump had a First Amendment right to spend money to win the 2016 presidential election by safeguarding his reputation[.]"

That is true enough, but that is not the conduct that Trump is charged with. Michael Cohen spent six figure sums to silence two women whose stories could have embarrassed Trump during his election campaign, with money that Cohen borrowed on a home equity line of credit. That constituted an illegal contribution to Trump's campaign or an illegal loan to the campaign.

Trump falsified records in order to conceal the criminal nature of Cohen's conduct. That bespeaks an intention to defraud campaign finance regulators.

[Michael Ejercito]

That constituted an illegal contribution to Trump’s campaign or an illegal loan to the campaign.

No, it did not.

Those two women were not political action committees.

[Kazinski]

And they stopped providing "services" well before the payments.

[not guilty]

At all relevant times, the Federal Election Campaign Act of 1971, as amended, Title 52, United States Code, Section 30101, et seq., set certain limitations and prohibitions, among them: individual contributions to any presidential candidate, including expenditures coordinated with a candidate or his political committee, were limited to $2,700 per election, and presidential candidates and their committees were prohibited from accepting contributions from individuals in excess of this limit.

Michael Cohen paid money to buy the silence of two women in order to influence the 2016 presidential election to the benefit of Donald Trump's political campaign. More details are available here: https://www.justice.gov/usao-sdny/pr/michael-cohen-pleads-guilty-manhattan-federal-court-eight-counts-including-criminal-tax

[Michael Ejercito]

Michael Cohen paid money to buy the silence of two women in order to influence the 2016 presidential election to the benefit of Donald Trump’s political campaign.
Stormy Daniles was clearly not a presidential candidate

[Kazinski]

Trump used private funds to insulate himself from the repercussions of a private affair.

Was Trump's motive to prevent embarrassment to himself? Prevent Embarrassment to his family? Prevent fallout to his campaign?

A combination of all those personal and political motivations?

None of them amount to a crime.

[Michael P]

According to the sworn testimony of Hope Hicks, Trump's concern was his family's reaction.

[JesusHadBlondeHairBlueEyes]

Well, not guilty will tell you that since Hope's testimony doesn't support conviction that her testimony should be thrown out.

Only a convicted felon and serial liar's testimony matters since it implicates Tump.

[Jason Cavanaugh]

What we can all agree on, is that the musings of a Christian white supremacist does not matter.

[Sarcastr0]

She also testified it was about the campaign.

Did whatever nonsense you read not cover that bit?

[damikesc]

So...you're saying there is no definitive proof one way or the other.

Sounds like a good plan for prosecution.

[Sarcastr0]

I'm saying Michael P is full of shit.

But so are you - it's not a binary where if you intend thing A you cannot intend thing B.

Misunderstanding human nature to wank for Trump!

[JesusHadBlondeHairBlueEyes]

Overlay that comment with her actual testimony.

That would be hilarious.

[Michael P]

She testified that campaign workers viewed it from the lens of the campaign. If they were on trial here, that might be relevant.

[JesusHadBlondeHairBlueEyes]

Wait, Sacrastr0 misrepresented to facts to pursue his own narrative?!!

No. Take it back. That's not possible for a Federal man of such integrity! I refuse to even read your blasphemous allegation!

[Michael Ejercito]

The reason this whole prosecution is so wrong-headed is that it badscially reverses the law.

Paying hush money to a mistress using campaign funds s clearly and unequivocally a crime. What this prosecution is arguing that it was a crime to pay hush money to a mistress was a campaign expenditure that should have been paid with campaign funds.

I wrote this back in 2018, when this argument was first floated on Reason.com!

[Brett Bellmore]

And if he had paid it out of campaign funds, or listed it as a campaign expense, you may be sure they'd have prosecuted him on that basis, instead. The one constant is that he WAS going to get prosecuted, no matter what he did; Remember, the prosecutor literally ran for office on the basis of finding some excuse to prosecute him!

[JesusHadBlondeHairBlueEyes]

Listen to ng, guys. He knows what Trump's state of mind was. He knows that Trump's intention was to conceal what he knew was a crime by Cohen, and did it to cover up his 2016 illegal election interference, which he knew was criminal, and all this narrative was part of Trump's scheme and not a whole cloth invention of not guilty's!

[not guilty]

So Michael Cohen pleaded guilty in 2018 to a non-crime (Count Seven of his federal indictment), and the judge for the Southern District of New York entered judgment on a non-crime pursuant to that plea? https://d3i6fh83elv35t.cloudfront.net/static/2018/08/MichaelCohenPleaAgreement.pdf

Yeah, right.

[Roger S]

Cohen made a plea bargain. He pleaded guilty to non-crimes in order to lessen punish for actual crimes.

[not guilty]

"Cohen made a plea bargain. He pleaded guilty to non-crimes in order to lessen punish for actual crimes."

So Michael Cohen entered a non-plea to a non-crime, upon which the U. S. District Court entered a non-judgment of non-conviction, whereupon Cohen went to a non-prison??

Yeah, right. Maybe in Bizarro World.

[Brett Bellmore]

If a defendant pleads guilty to an 'offense' in a plea agreement, with a specified penalty, the courts hardly ever conduct any inquiry into whether the conduct they've pled guilty to is actually illegal.

[not guilty]

Wrong, Brett. Before entering judgment on a guilty plea, a federal court must determine that there is a factual basis for the plea. Fed.R.Crim.P. 11(b)(3).

[Roger S]

The factual basis is that Cohen admitted to an illegal campaign donation. Nobody could prove that it was a donation, but if he is going to admit to it, then the judge is going to accept it. That is how plea bargains work.

[not guilty]

How many plea submission hearings have you observed, Brett? How do you claim to know what inquiry the courts conduct?

[Rev. Arthur L. Kirkland]

I sense Roger S is auditioning for a spot on the roster of the new-and-improved Volokh Conspiracy we are likely to see after Prof. Volokh is no longer constrained by mainstream academia and instead is free to fly his right-wing freak flag at a conservative mouthpiece shop.

And auditioning capably.

[Roger S]

Why would Trump falsify records to conceal Cohen's crimes? The charge does not even make any sense.

[not guilty]

Well, duh. Trump did so in order to defraud election finance officials.

[Z Crazy]

What does it say about these people when they have a hissy fit about paying off some 'ho but NOT about dropping bombs on the heads of kids in Iraq and Libya?

[Kazinski]

I’m going to go out on a limb and state that the Supreme Court will never allow these facts to be criminalized:

“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 a Publisher killed a story because he wanted the candidate to win. And he calls it a criminal conspiracy to influence an election.

The prosecution has poisoned its own case.

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

[Z Crazy]

By this logic, the 51 spies in the CIA who said the Hunter laptop was fake are guilty of an illegal campaign contribution!

[Michael Ejercito]

Very great point!

[Kazinski]

No. Unless you can prove it was coordinated with the Biden campaign.

But, it is telling that under the governments original assertions of the scope of McCain-Feingold it indeed would be an illegal independent expenditure within 60 days of an election. Which just shows how nuts that was.

All hail Citizens United.

[David Nieporent]

But, it is telling that under the governments original assertions of the scope of McCain-Feingold it indeed would be an illegal independent expenditure within 60 days of an election.

I wasn't aware that former CIA employees (not as Z Crazy lied, "spies in the CIA") were a corporation.

[tylertusta]

They aren't, but according to the law, they also don't need to be.

[David Nieporent]

McCain-Feingold — which is the law that Kazinski cited — was about corporate expenditures. Independent individual expenditures were already constitutionally protected.

[tylertusta]

The actual answer is that no, you don’t need to be a corporation to fall under the terms of McCain-Feingold.

[Kazinski]

Well lets stipulate that, but I then I have to ask a similar question to what SCOTUS did: why it would be legal for 50 people to write a letter which is immediately published by all the mainstream media corporations who are supporting the same candidate, and illegal for a non profit corporation who solicits a letter for a candidate without mainstream media support and pays for an advertisement to disseminate their opposing letter.

All hail Citizens United.

[Brett Bellmore]

So, you were saying...

New Testimony Reveals Secretary Blinken and Biden Campaign Behind the Infamous Public Statement on the Hunter Biden Laptop

"WASHINGTON, D.C. – New testimony by Michael Morell, a former Deputy Director of the Central Intelligence Agency (CIA) and one of the 51 signatories of the “Public Statement on the Hunter Biden Emails,” revealed that U.S. Secretary of State Antony Blinken, then senior advisor to the Biden campaign, was the impetus of the public statement signed in October 2020 that falsely implied the New York Post’s reporting about Hunter Biden was the product of Russian disinformation. "

"The Committees recently conducted a transcribed interview with Michael Morell, a former Deputy Director of the CIA and one of the 51 signatories of the public statement. In his transcribed interview, Morell testified that on or around October 17, 2020, Blinken served as a senior advisor to the Biden campaign and reached out to him to discuss the Hunter Biden laptop story. According to Morell, although your outreach was couched as simply gathering Morell’s reaction to the Post story, it set in motion the events that led to the issuance of the public statement.

That same day, October 17, Blinken also emailed Morell an article published in USA Today alleging that the FBI was examining whether the Hunter Biden laptop was part of a “disinformation campaign.” The very bottom of the email he sent to Morell included the signature block of Andrew Bates, then-director of rapid response for the Biden campaign.

Morell testified that his communication with Blinken was one of a few communications he had with the Biden campaign, explaining that he also received a call from Steve Ricchetti, Chairman of the Biden campaign, following the October 22 debate to thank him for writing the statement. Morell also explained that the Biden campaign helped to strategize about the public release of the statement. Morell further explained that one of his two goals in releasing the statement was to help then-Vice President Biden in the debate and to assist him in winning the election."

[Michael P]

Hey, who cares if it was an illegal unreported and over-limit in-kind contribution, and a conspiracy to make that? The IMPORTANT point is whether the signatories were currently employed by the CIA or whether "spies in the CIA" was only in the past tense!

[Sarcastr0]

Did you read what you excerpted?

According to Morell, although your outreach was couched as simply gathering Morell’s reaction to the Post story, it set in motion the events that led to the issuance of the public statement.

This is weak tea. Pro-tip – when a singe party or member puts out a statement, on either side of the aisle, it’s not going to be the unvarnished truth.
Take it more like a Mother Jones or Jacobin piece. Probably no out-and-our lies, but every false impression possible will be deployed.
Agenda first, truth second.

[JesusHadBlondeHairBlueEyes]

Woah, more Sacrastr0 assertions and proclamations. This is serious guys, you better reject those reports, Sacraptr0 has told you how to interpret these events.
Dismiss them! Truth should come first! Not agenda!

Truth First, Agenda Second. That should be Sarcastr0's motto!

[Rev. Arthur L. Kirkland]

At a white, male blog steeped in bigotry and soaked with conspiracy theory, that motto sounds like a winner.

[Brett Bellmore]

It's about 100 times solider than your claim that Trump asking for access to Georgia voting records to look for illegal votes was really him demanding that Raffensperger manufacture fake votes for him, and you treat that fantasy seriously.

[Roger S]

Funny how it always turns out that Biden did worse than what he accuses Trump of.

[tylertusta]

All hail Citizens United.

Indeed.

I'm very thankful that at oral arguments the government blundered into revealing exactly what "campaign finance" law is all about.

[JesusHadBlondeHairBlueEyes]

Oooh, do tell. The great El Rushbo always called McCain Feingold the "Bipartisan Incumbency Protection Act".

[Brett Bellmore]

"Bragg and the judge trying Trump's NY State criminal case have committed constitutional torts for which they cannot be sued only because of our dumb prosecutorial and judicial immunity rules."

Look, I've got to say that, even if I largely agree with Calabresi here, that line reads like something a 13 year old might write in a middle school essay.

[Michael P]

Alvin Bragg's theory is that Donald Trump intended to cover up a violation of a crime that apparently nobody has ever been prosecuted for, making this a perfect case of waging Trumplaw.

https://www.businessinsider.com/trump-hush-money-case-relies-never-used-election-conspiracy-law-2024-4

[JesusHadBlondeHairBlueEyes]

A never before application of a law being applied against Trump or his allies?

Where have we seen this story before?

[tylertusta]

A novel question of law used to attack Trump?

I'm sure this has never happened before!

[damikesc]

I am glad norms have been restored so thoroughly.

[tylertusta]

We had to destroy the norms to save them!

[JesusHadBlondeHairBlueEyes]

I’m sure gonna miss the norms of having topless trannies, rabid attack dogs, coke & hooker parties, child sniffing, creepy whispering, and elderly dementia patients shitting their diapers in the White House.

The office is so respected and loved!

[Rev. Arthur L. Kirkland]

I will miss Prof. Volokh claiming affiliation with a legitimate law school faculty.

The important point is to embrace progress, change, and modernity.

Right, clingers?

[Michael Ejercito]

No, but a novel question of law was used to attack Rick Perry.

https://ethicsalarms.com/2014/08/17/ethics-dunces-abc-news-jonathan-karl-and-the-sunday-morning-roundtable/

[tylertusta]

So using the 14th Amendment to knock Trump off of the ballot wasn't a novel question of law?

[JohnTheRevelator]

In fact, the person who has acted wrongly here is Alvin Bragg who for the first time in 235 years of American history has indicted a former president who is the Republican nominee for president in 2024 just to muddy him up.

Anyone have any reasonable argument that that isn't what's going on here?

[JesusHadBlondeHairBlueEyes]

Well,
For starters, the intention is wrong. It isn't to muddy him up. There are way too many thumbs on this scale to be just a muddy-up op.

They are doing this because the CIA/FBI don't believe they can get away with murdering another president.

[JohnTheRevelator]

Thing is, where are all these thumbs when it comes to things like seizing Trump's properties that would really hurt him? These people keep bringing these weak cases and getting reversed on appeal. It's the strongest evidence that this lawfare is based on simple TDS rather than any real plan. A real plan would have by now found a way to avoid the same fate as all the previous ones.

[Sarcastr0]

It's lawfare because you have decide the cases are weak.

That's called begging the question.

[Michael Ejercito]

The cases are weak, based on a bullshit legal argument.

That paying off mistresses was a campaign expense was absurd , and sounded absurd when I first heard that argument in 2018!

[Rev. Arthur L. Kirkland]

Some would argue that a guy cheating repeatedly on his wife, especially while she is caring for an infant (supervising the nannies and wet nurses, probably, but that's what passes for motherhood and family values in the Trump-Boebert-Palin-Gaetz Republican Party), and using "catch and kill" to suppress his sordid conduct could the person who acted wrongly, but those people are not Volokh Conspiracy material.

Carry on, clingers.

[ReaderY]

The idea that paying people not to speak is speach strikes me as rather strange. If not speaking is speech, why isn’t not buying something commerce?

The implications are huge. If the rich have a constitutional First Amendment right to hush money, why don’t they have a constitutuonal First Amendment right to blood money? Why don’t they have a constitutional right to protect their reputations by paying off the families and potential witnesses of peiple they kill?

Why shouldn’t the rich have a constitutional right to purchase silence from prospective witnesses to anything they might care to do, if they have enough money to pay people off?

If they have a constitutional right to purchase silence from witnesses, why not judges? Why not legislators?

After all, if money is speech and silence is speech, then paying legislators to kill a bill or a proscutor not to pursue a case in order to protect ones reputation is also simply constitutionally protected speech.

[damikesc]

Because paying somebody to commit murder is illegal and paying somebody to honor an NDA is not.

Also, NDA's exist. The rich have ready access to them. Somebody can always say "no" and not sign them.

Do you spend a moment thinking about what you're writing?

[JesusHadBlondeHairBlueEyes]

TDS'ers don't think, only react.

[ReaderY]

I think my argument based on the Food Lion case below covers your argument that there is a difference between paying hush money to cover legal vs. illegal reputation-damaging activity in this respect. It disposes of the idea that the First Amendment contains a right to pay hush money to silence people from reporting true facts. To the contrary, the First Amendment requires erring on the side of protecting people who report true facts and narrowly construing the enforcement rights of confidentiality agreement holders. Reporters who report true facts do not cause and cannot be held liable for damage to reputation based on what they report, even when they sign confidentiality agreements saying thwy won’t. Rather, loss to reputation is solely caused by the perpetrator’s own conduct.

[Roger S]

The Trump case is not about reporters reporting true facts.

[ReaderY]

In Professor Volokh’s view, there’s nothing at all special about journalists, so there is no difference between Stormy Daniels and any other reporter so far as the First Amendment is concerned. Mr. Trump has a state-law right to create a hush-money contract only if and to the extent state law permits it.

I sometimes disagree with him on this point. But I’d be inclined to agree that the constitutionality of state restrictions on hush money contracts isn’t limited to ones involving reporters.

[damikesc]

"Mr. Trump has a state-law right to create a hush-money contract only if and to the extent state law permits it."

When did NY outlaw NDA's?

[ReaderY]

The People of New York are claiming that Trump’s conduct was illegal under New York law. That New York law. The one Trump is charged under.

Since his NDA isn’t constitutionally protected by the First Amendment but is legal if and only to the extent New York law says it is, then it follows that there’s no constitutional problem with the law Trump is charged with.

[damikesc]

"I think my argument based on the Food Lion case below covers your argument that there is a difference between paying hush money to cover legal vs. illegal reputation-damaging activity in this respect. It disposes of the idea that the First Amendment contains a right to pay hush money to silence people from reporting true facts."

So, you come out AGAINST basic contract law now?

If you sign something willingly, you abide by the terms of what you signed. They could have always refused to sign it and not taken the money.

"To the contrary, the First Amendment requires erring on the side of protecting people who report true facts and narrowly construing the enforcement rights of confidentiality agreement holders."

The people in question ACCEPTED THE MONEY and SIGNED THE AGREEMENT.

Are contracts meaningless now?

"Reporters who report true facts do not cause and cannot be held liable for damage to reputation based on what they report, even when they sign confidentiality agreements saying thwy won’t. Rather, loss to reputation is solely caused by the perpetrator’s own conduct."

If the reporter SIGNS A CONTRACT (which an NDA is) and then violates it, yes. they will suffer repurcussions.

[ReaderY]

The case opinions said the reporters could not be held liable for damage to Food Lion’s reputation.

The reporters had asked the 4th Circuit to go farther and hold that the First Amendment voided any danages for violating their employment agreement, but the 4th Circuit said no, state law would have to create such a privilege for reporters; state law decides when these types of agreements are and are not enforcible.

I understand New York isn’t saying the agreement is unenforceable, only that it must be reported as a campaign expense. But nothing in the First Amendment prevents New York from saying that.

Mr. Calebresi’s argument was that the First Amendment prohibits states from regulating these matters. I’m just pointing out states can ban these agreements entirely. If they can do that, they can certainly regulate them.

[ReaderY]

I think cases like the Food Lion case go against Trump. In that case, reporters from a TV network went undercover, became employees of a Food Lion deli counter, and reported various problems. Food Lion sued, claiming they violated their employment agreement including a confidentiality obligation.

https://www.ca4.uscourts.gov/opinions/published/972492.p.pdf

In that case, the 4th Circuit held that the Reporters’ reporting conduct was not the proximate cause of the damage to Food Lion’s reputation. Rather, the cause was entirely Food Lion’s own conduct. Food Lion could recover actual damages on its employment agreement claims, including lost wages, amounting to a few thousand dollars. because state law made such agreements lawful. But it could not attribute its loss in reputation or stock price to reporters reporting its own conduct. Its conduct caused these damages.

What’s the difference? Mr. Calebrese simply assumes that Mrs. Clifford’s allegations are false. But, understanding Trump’s defense is contesting the allegations, there is more than enough evidence to send the matter to a jury.

There is absolutely no constitutional right to pay hush money to silence true or plausibly true reputation-damaging allegations. Indeed, the 4th Circuit said in the Food Lion case that the First Amendment actually tilts in favor of, indeed may require, absolving people who report true facts from responsibility for any loss of reputation of those who ask them to sign confidentiality agreements.

Trump here may, like Food Lion, be entitled to damages against Ms. Clifford under state law, including recovering the cost of the agreement. But he has no more constitutional right to pay hush money to avoid embarassing facts being reported about him than Food Lion did.

[Roger S]

The Food Lion case might relate to the enforceability of the hush money contract. But that is irrelevant to the Trump trial.

[ReaderY]

It’s relevant to Mr. Calebresi’s claim that the First Amendment creates a constitutional right to create a hush money contract. There is no such constitutional right.

[Roger S]

Not what he said. Calabresi wrote: "Donald Trump had a First Amendment right to spend money to win the 2016 presidential election by safeguarding his reputation".

[Kazinski]

"There is absolutely no constitutional right to pay hush money to silence true or plausibly true reputation-damaging allegations."

Be hard to test that, unless you can point to a law that criminalizes paying money to someone as consideration for an NDA.

[ReaderY]

Blackmail prohibits soliciting paying money in exchange for an NDA regarding reputation-damaging information. That which the state can prohibit soliciting, it can prohibit actually doing. So I think such a prohibition would be constitutional. It would not be, as Mr. Calebresi claims, barred by the First Amendment.

[Kazinski]

You seem to miss the salient point, there are actually 2 bars to prosecuting someone for paying hush money:

1. Is it constitutionally protected?
2. Is there a statute that makes it illegal?

As you point out non disclosure agreements are pretty common, they are not illegal, and hand waving doesn't make them a crime. And even in cases where public policy makes them unenforceable, they aren't a crime.

[not guilty]

Donald Trump is not being prosecuted for paying hush money. He is being prosecuted for falsifying business records.

[ReaderY]

Finally, I think there is a much narrower, more limited argument to be made that this type of expense has not traditionally been regarded as a campaign expense. After all, Mr. Trump is hardly the first President, and certainly far from the first elected official, to have had and to have paid off mistresses. I suspect history has shown more prosecutions of people for crimes like fraud and embezzlement for reporting monies paid to mistresses as campaign expenses than of people prosecuted for not doing so.

So I am sympathetic to the possibility Trump has a valid defense here.

But Mr. Calebrese’s broad claim that the First Amendment creates some sort of broad right for people to pay hush money to silence people from reporting reputation-damaging facts about them strikes me as absurd. The Constitution does not guarantee us a plutocratic form of government, nor does or give the rich a right to buy themselves out of trouble. Nothing in the First Amendment changed that.

[Roger S]

People have always had the right to pay hush money. No law against it.

[Sarcastr0]

People have always had the right to walk around pantsless, like Porky Pig.

That doesn't mean it's not illegal in some contexts.

[ReaderY]

No, I think the longstanding, firmly-established blackmail exception to the First Amendment, which basically permits a state to prohibit soliciting a post-hoc non-disclosure agreement, also empowers the state to prohibit actually making such an agreement as against public policy. That which the state can prohibit soliciting, it can prohibit doing. So if it can prohibit blackmail, it can prohibit buying silence.

States can decide that for example agreements that prohibit disclosure of reputation-damaging sexual misconduct are illegal.

A number of #metoo advocates have advocated prohibiting these sorts of agreements, so that rich oligarchs who sexually harass people can’t simply buy their way out of having to face consequences.

There’s certainly a rational basis for doing so. I think the blackmail exception makes such restrictions permissable under the First Amendment.

[Roger S]

Trump was the one being blackmailed. Yes, NY can prohibit asking for blackmail payments. But there is no law paying blackmail.

Would such a law violate the 1A? Interesting question.

[David Nieporent]

Trump was the one being blackmailed.

No, he wasn't. None of the three people involved in this scheme — the doorman, McDougal, or Daniels — asked Trump for money in exchange for keeping quiet. Trump approached them. (Through intermediaries, of course.)

[Roger S]

So you mean they asked intermediaries for money, in exchange for silence?

They ended up getting money for silence, so they must have asked for it somehow.

[David Nieporent]

No, I don't mean that. I don't know much about the doorman's situation, but neither of the other two asked anyone for anything in exchange for silence. They did not ask for that at all. AMI approached them, not the other way around, and they thought they were selling their stories, not their silence.

[Tax Litigator]

I am not a Calabresi expert. But as I read his pieces, principally on The Volokh Conspiracy, Calabresi lives up to what one might infer from his position per his NW Law bio as Chairman, Board of Directors of the Federalist Society. More than that, he seems to be a Trump apologist reaching for ways to justify some of Trump's antics (a broader term than illegalities, but certainly including illegalities) that many of us older guys (I am 81) would have thought beyond the pale in our prime (as well as in our old age). I just wonder if Calabresi's pieces are auditions for some position in his hoped for Trump administration. Just wondering.

[Sarcastr0]

It's interesting - he's said some really harsh things about Trump, and so pretty much scuttled any such hope.

He also has had the Federalist Society distance themselves from him - he cannot introduce himself as a founder of the Federalist Society in media appearances (! Petty!)

But in the end, it's less the motives or the outcome that's notable, it's the incredible legal ignorance evident in his arguments.

Has he always been this dumb? Is he just not trying now? Maybe he has always had collaborators that kept him in line? One day I'll do a quick skim through is past scholarship to see if it's notably dumb like his posts here.

[grb]

Tax Litigator : “I just wonder if Calabresi’s pieces are auditions for some position…”

I’m not sure you need look at things so narrowly. Remember the case of Ken Starr? In August of ’94 he accepts the position of Special Counsel. By early ’96, he realizes nothing he is investigating amounts to anything & decides to bail, accepting a position at Pepperdine.

The result was four days of scorching hot invective, mob anger, and brutal criticism – all from his own side. Starr realized he’d never eat rubbery chicken at another political banquet or get a freebie think tank position unless he fell in line. So he backtracked and two plus years playing Ahab to Clinton’s Moby Dick was the result.

Before he lucked into blowjobs, the man was growing increasingly frantic to deliver the goods. He refused to disclose the findings of all his little bullshit “investigations” for years (Travelgate, Filegate Foster Suicide, Whitewater, etc.) because every one exonerated Clinton. Only after he hit on Lewinsky did Starr suddenly announce everything he’d supposedly been investigating was already concluded.

You can argue Starr was unusually spineless and weak-willed, and the rest of his life bears that out. Still, tribal enforcement in the world of Right-Wingers wasn’t as harsh then as now, yet was enough to make Starr dance as told. Calebrese might just want to come out of exile and be welcome back in the bosom of his tribe. Plus (judging by the tenure of his posts) he could give the late Mr. Starr a lesson or two in ethical flexibility and toadying spinelessness.

[Rev. Arthur L. Kirkland]

In a just world a special counsel would release a report on Ken Starr's work on behalf of rapists at Baylor.

Conservative values, ladies and gentlemen!

[Kazinski]

Calabresi, is a 66 year old law professor at Northwestern, what possible gig do you think he is he hungering for?

He's already on record as a never Trumper, although certainly it doesn't seem like he sees Biden as an alternative.

Starr was only 50 when he first floated the Pepperdine gig in '96, and 58 when he actually took it in 2004.

[Roger S]

I thought that everyone was convinced that the special prosecutor is a bad idea.

[DaveM]

I'm sorry I read this thread. New York is trolling all of you. They're getting you to spend actual time discussing a legal theory that is laughably bad. Yes, I said it. Bragg is LAUGHING at you, right now.

[Kazinski]

And Merchan is in his chambers, head in his hands, wondering how he let Bragg rope him into this mess.

[Roger S]

Kerr never address the free speech argument. Trump paid a legal bill to help preserve his reputation, and booked it as a legal expense. He has a free speech right to do these things, unless there is some 1A exception. Kerr has failed to point out any exception.

Kerr does say that punching someone would be an exception. Not similar to Trump's situation at all.

[David Nieporent]

Trump paid a legal bill to help preserve his reputation, and booked it as a legal expense.

Repeating this lie won't make it true.

He has a free speech right to do these things,

In what way does he have a "free speech right" to pay Stormy Daniels not to tell her story? What does that have to do with Trump's speech?

[Roger S]

Trump does have a free speech right to campaign for President, to present and preserve his reputation to the public, and to spend money to that end. I think everyone agrees to that.

I guess you are suggesting that there is an exception to that free speech right, in that it does not include suppressing facts. But Daniels story is not a fact, as far as we know. She is just someone badmouthing him.

Suppose Trump were to hire Lynne Cheney to be one of his campaign spokesmen, with a contract not to badmouth him. Would that be illegal? Trump has a free speech right to do that, doesn't he?

[David Nieporent]

I guess you are suggesting that there is an exception to that free speech right, in that it does not include suppressing facts.

No, that's not what I'm suggesting. I'm suggesting that paying someone for her silence has nothing whatsoever with one's free speech, and that it is thus not an "exception" at all. It doesn't matter whether one is suppressing facts, opinions, or lies. No more than paying someone to mow one's lawn would be an exercise of one's free speech rights. Such a payment might be legal under all, some, or no circumstances, but it isn't one's speech.

[Roger S]

Candidates do spend money to control their reputations. The whole case is premised on the hush money being such a campaign expense. If it is not speech, then what is it, and how can it be a campaign expense?