The Volokh Conspiracy

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President Donald Trump's Manhattan Convictions are Unconstitutional

The first amendment protects the alleged payment of hush money to a porn star to influence an election outcome as the u.s. supreme court will eventually rule


President Donald Trump was convicted yesterday of allegedly altering business records to conceal his alleged payment of money to a porn star, Stormy Daniels, in order to influence the 2016 presidential election. But, altering business records under New York State law is only a crime if it is done to conceal the violation of some other law. Manhattan District Attorney Alvin Bragg alleged that the documents were allegedly falsely altered to conceal a contribution of money in violation of federal campaign finance laws or in pursuance of winning the 2016 election by defrauding the voters of information they had a right to know. Neither argument passes First Amendment scrutiny.

The federal campaign finance laws were partially upheld in Buckley v. Valeo, 424 U.S. 1 (1976). In that case, campaign expenditure limits were ruled to be flatly unconstitutional as a violation of the First Amendment's protection of freedom of speech. Under Buckley v. Valeo, an individual like Donald Trump can spend an unlimited amount of his own money promoting his own campaign. But, the Supreme Court in Buckley did uphold contribution limits on how much an individual or a group could contribute to influence an election. Alvin Bragg argues that the Trump organization's contribution of $130,000 to pay Stormy Daniels hush money exceeded federal campaign finance limits on contributions. The federal government itself has adopted a policy of not prosecuting hush money payments as illegal campaign contributions in the wake of its embarrassing loss of such a prosecution brought against Democratic Vice Presidential contender John Edwards.  Edwards had paid hush money during the 2004 presidential election to a mistress with who he had had a child out of wedlock.

In 2010, in Citizens United v. Federal Election Commission, 558 U.S. 310, the Supreme Court held 5 to 4 that the freedom of speech clause of the First Amendment prohibits the government from restricting independent expenditures for political campaigns by closely allied corporations and groups like The Trump Organization. Under Citizens United, it was perfectly legal for The Trump Organization to pay Daniels $130,000 in hush money to conceal her alleged affair with Donald Trump.

The opinion in Citizens United was written by former Justice, and liberal icon, Anthony M. Kennedy, and it was joined by Chief Justice John Roberts, Justice Clarence Thomas, and Justice Samuel Alito all three of whom are still on the Supreme Court. Given the Court's current membership, it is highly likely that the outcome in Citizens United would prevail again today by a vote of 6 to 3. If Buckley v. Valeo was argued to be an obstacle to Trump prevailing, the Supreme Court would today, in 2024, and should today, in 2024, overrule the campaign finance contribution limits of federal election law as violations of the freedom of speech. Groups contributing to election campaigns can pay for advertising to promote candidates, and they can also pay hush money to keep bad or false stories out of the news. The effect either way is to help the candidate. You can contribute money to generate good publicity.  And, you can contribute money to avoid bad publicity.  The First Amendment protects freedom of speech in both cases.

Campaign finance limits prevent speech by people who want to engage in it. They have changed Congress so badly that today Members of Congress spend 70% of their time raising money rather then legislating or meeting with their constituents because of absurdly low campaign finance limits that have not been adequately raised to match inflation since those laws were enacted in the 1970's.  The post-Watergate campaign finance laws were and always have been flagrantly unconstitutional in their totality.

Federal Campaign Finance laws are an incumbent protection measure that makes it too hard for challengers to knock off incumbents who have much higher name id and who have franking privileges which allow them unlimited free correspondence with their constituents through the mail. That it is not to mention the power of incumbents to steer pork-barrel spending back to their own states and districts so that they will be endlessly re-elected.

The First Amendment Freedom of Speech Clause also rules out of order Alvin Bragg's argument that Trump defrauded American voters by preventing them from hearing about Trump's affair with Stormy Daniels. Theories as broad as this one is, of "defrauding voters" would end up eliminating the freedom of speech in American elections. Voters had no "right" to know about Donald Trump's sex life. He was obviously not monogamous being married to a third wife, and voters who adhere to traditional values voted for him anyway because of the kind of stellar conservative justices he went on to appoint to the Supreme Court.

There was thus no predicate crime that Trump could have been concealing when he allegedly altered business records at The Trump Organization. Trump's convictions in the Manhattan trial are unconstitutional because they violate the First Amendment as it was originally understood.

The U.S. Supreme Court needs to hear this case as soon as possible because of its impact on the 2024 presidential election between President Trump and President Biden. Voters need to know that the Constitution protected everything Trump is alleged to have done with respect to allegedly paying hush money to Stormy Daniels. This is especially the case because the trial judge in Trump's Manhattan case wrongly allowed Stormy Daniels to testify in graphic detail about the sexual aspects of her alleged affair with Trump. This testimony tainted the jury and the 2024 national presidential electorate, impermissibly, and was irrelevant to the question of whether President Trump altered business records to conceal a crime. The federal Supreme Court needs to make clear what are the legal rules in matters of great consequence to an election to a federal office like the presidency.  A highly partisan borough, Manhattan, of a highly partisan city, New York City, in a highly partisan state, like New York State, cannot be allowed to criminalize the conduct of presidential candidates in ways that violate the federal constitution.

The Roman Republic fell when politicians began criminalizing politics. I am gravely worried that we are seeing that pattern repeat itself in the present-day United States. It is quite simply wrong to criminalize political differences.