The expected criminal charges against former President Donald Trump in New York reportedly hinge on a violation of federal election law with which Trump was never charged. That fact in itself suggests how dubious the case against Trump is: To convert a state misdemeanor involving falsification of business records into a felony, Manhattan District Attorney Alvin Bragg, a Democrat, is relying on the theory that Trump was trying to cover up another crime. But federal prosecutors apparently did not think the evidence of that second crime was strong enough to charge Trump.
The New York case is based on a 2016 hush payment to porn star Stormy Daniels, who claims she had a sexual affair with Trump in 2006, when he was married to his current wife, former First Lady Melania Trump. Although Trump denies the affair, his lawyer at the time, Michael Cohen, paid Daniels $130,000 to keep the story out of the press. While that payment was not inherently criminal, federal prosecutors viewed it as an illegal campaign contribution because, they said, its "principal purpose" was "influencing [the] election," as opposed to avoiding personal embarrassment for Trump or sparing his wife's feelings.
Cohen accepted that characterization in 2018, when he pleaded guilty to violating federal limits on campaign contributions. Based on that view of the transaction, Trump, who reimbursed Cohen for the money he paid to Daniels, could have been charged with soliciting or accepting an illegal campaign contribution. But in the five years since Cohen's guilty plea, the Justice Department has conspicuously declined to charge Trump. In 2021, an evenly divided Federal Election Commission (FEC) declined to pursue charges against Trump, his business, or his campaign.
A criminal case would have required proving that Trump "knowingly and willfully" violated federal election law. But it is not clear that Trump had the requisite intent, because he seemed confused about what federal election law requires.
Such confusion would be understandable. "The best interpretation of the law is that it simply is not a campaign expense to pay blackmail for things that happened years before one's candidacy—and thus nothing Cohen (or, in this case, Trump, too) did is a campaign finance crime," former FEC Chairman Bradley Smith wrote in a 2018 Reason essay. "But at a minimum, it is unclear whether paying blackmail to a mistress is 'for the purpose of influencing an election,' and so must be paid with campaign funds, or a 'personal use,' and so prohibited from being paid with campaign funds."
The New York case against Trump is based on a state law that makes it a misdemeanor to falsify business records "with intent to defraud." Trump did that, Bragg thinks, when his business falsely identified Cohen's reimbursement as payment for legal services. The misdemeanor becomes a Class E felony, punishable by up to four years in prison, when the defendant's "intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof." But if Trump did not think the payment to Daniels violated federal election law—and if it is in fact unclear that it did, as Smith argues—it is hard to see how he could have intended to "conceal" that alleged crime.
Nor is it clear that the uncharged and unproven federal violation counts as "another crime" under New York's statute. Last November, The New York Times reported that prosecutors working for Bragg's predecessor, Cyrus R. Vance Jr., "concluded that the most promising option for an underlying crime was the federal campaign finance violation to which Mr. Cohen had pleaded guilty." But "the prosecutors ultimately concluded that approach was too risky—a judge might find that falsifying business records could only be a felony if it aided or concealed a New York state crime, not a federal one." While "the prosecutors briefly mulled using a state election law violation," the Times said, they rejected that idea: "Since the presidential race during which the hush-money payment occurred was a federal election, they concluded it was outside the bounds of state law."
Bragg evidently decided otherwise. But that conclusion is so legally iffy that it reinforces Trump's reflexive complaint that he is, as always, a victim of a long-running Democratic "witch hunt."
Although the essence of Bragg's case against Trump is shaky, his prosecutors seem to have found a way around another potential obstacle: New York's statute of limitations, which ordinarily requires that misdemeanors be prosecuted within two years and that Class E felonies be prosecuted within five years. If the falsification of business records happened in 2017, as the sentencing memorandum in Cohen's federal case indicates, it has been six years since that alleged crime was committed. But as Times reporter Charlie Savage notes, the statute of limitations includes an exception for "any period following the commission of the offense during which…the defendant was continuously outside this state."
Trump lived largely in Washington, D.C., during his presidency, and in 2019 he switched his official state of residence to Florida. In determining whether the prosecution can proceed, a 1999 ruling by the New York Court of Appeals indicates, the time that Trump spent in D.C. and Florida should be subtracted from the time that has elapsed since the Trump Organization misrepresented Cohen's reimbursement.
Still, why pursue a case based on debatable facts and an untested legal theory that looks like a politically motivated attempt to "get" Trump? "The evidence that Trump broke the law seems substantial," say Times reporters David Leonhardt and Ian Prasad Philbrick. "The hush money and the cover-up of it, in the final weeks of a close presidential race, seem to have been a brazen violation of campaign finance rules. To overlook the violation could encourage future candidates to ignore the law, too." But if the payment was "a brazen violation of campaign finance rules," why did the Justice Department decline to prosecute Trump for arranging it?
The other argument that Leonhardt and Philbrick summarize gives the game away. Trump "has repeatedly shown disdain for laws and traditions that predecessors from both parties followed," they write. "He told thousands of lies while in office; refused to participate in a peaceful transfer of power; used the power of the presidency to benefit his company; pressured a foreign leader to smear a political rival; and much more. At a certain point, the rule of law becomes meaningless if anybody can repeatedly ignore it."
Trump, in other words, is an awful person who has done awful things, and this prosecution, no matter how weak its basis, is an opportunity to deliver his well-deserved comeuppance. But Bragg's case against Trump requires proving beyond a reasonable doubt that the former president committed a specific crime under New York law. Prosecuting him for other reasons is the antithesis of "the rule of law."
New York Times columnist David French, no fan of Trump, argues that "the rule of lenity," which says ambiguous criminal statutes should be read in a defendant's favor, counsels against prosecuting Trump for falsifying business records in an attempt to cover up another crime he may or may not have committed. "As a matter of justice, should our nation be prosecuting citizens criminally under novel legal theories?" French asks. "The law should give fair notice of its scope, and it should be clear enough to permit us to conform our conduct to the relevant legal standards. Expanding the reach of laws beyond their plain text violates this principle and undermines trust in law enforcement."
The Manhattan District Attorney's Office has been debating for years whether these charges are legally justified. Prosecutors initially decided they were not, and now they have changed their minds. It is hard to escape the conclusion that the desire to punish Trump overrode the considerations that French highlights. This case undermines the rule of law in the name of upholding it.
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