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.
