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.
