Rethinking the New York election fraud case

Based on opening arguments, a NYT opinion by a law professor got me to reassess the strength of the ongoing trial:

I Thought the Bragg Case Against Trump Was a Legal Embarrassment. 

Now I Think It’s a Historic Mistake.

After listening to Monday’s opening statement by prosecutors, I still think the Manhattan D.A. has made a historic mistake. Their vague allegation about “a criminal scheme to corrupt the 2016 presidential election” has me more concerned than ever about their unprecedented use of state law and their persistent avoidance of specifying an election crime or a valid theory of fraud.

A year ago, I wondered how entirely internal business records (the daily ledger, pay stubs and invoices) could be the basis of any fraud if they are not shared with anyone outside the business. I suggested that the real fraud was Mr. Trump’s filing an (allegedly) false report to the Federal Election Commission, and only federal prosecutors had jurisdiction over that filing.

A recent conversation with Jeffrey Cohen, a friend, Boston College law professor and former prosecutor, made me think that the case could turn out to be more legitimate than I had originally thought. The reason has to do with those allegedly falsified business records: Most of them were entered in early 2017, generally before Mr. Trump filed his Federal Election Commission report that summer. Mr. Trump may have foreseen an investigation into his campaign, leading to its financial records. Mr. Trump may have falsely recorded these internal records before the F.E.C. filing as consciously part of the same fraud: to create a consistent paper trail and to hide intent to violate federal election laws, or defraud the F.E.C.

In short: It’s not the crime; it’s the cover-up.

Looking at the case in this way might address concerns about state jurisdiction. In this scenario, Mr. Trump arguably intended to deceive state investigators, too. State investigators could find these inconsistencies and alert federal agencies. Prosecutors could argue that New York State agencies have an interest in detecting conspiracies to defraud federal entities; they might also have a plausible answer to significant questions about whether New York State has jurisdiction or whether this stretch of a state business filing law is pre-empted by federal law.

However, this explanation is a novel interpretation with many significant legal problems. And none of the Manhattan D.A.’s filings or today’s opening statement even hint at this approach.

Instead of a theory of defrauding state regulators, Mr. Bragg has adopted a weak theory of “election interference,” and Justice Juan Merchan described the case, in his summary of it during jury selection, as an allegation of falsifying business records “to conceal an agreement with others to unlawfully influence the 2016 election.”

As a reality check, it is legal for a candidate to pay for a nondisclosure agreement. Hush money is unseemly, but it is legal. The election law scholar Richard Hasen rightly observed, “Calling it election interference actually cheapens the term and undermines the deadly serious charges in the real election interference cases.”  

In Monday’s opening argument, the prosecutor Matthew Colangelo still evaded specifics about what was illegal about influencing an election, but then he claimed, “It was election fraud, pure and simple.” None of the relevant state or federal statutes refer to filing violations as fraud. Calling it “election fraud” is a legal and strategic mistake, exaggerating the case and setting up the jury with high expectations that the prosecutors cannot meet.

The most accurate description of this criminal case is a federal campaign finance filing violation. Without a federal violation (which the state election statute is tethered to), Mr. Bragg cannot upgrade the misdemeanor counts into felonies. Moreover, it is unclear how this case would even fulfill the misdemeanor requirement of “intent to defraud” without the federal crime.

Viewed through that analysis, the case now feels to be significantly less solid to me. What surprised me is that paying hush money like DJT did is legal. Lying to the FEC about it (the cover up) might be a federal law violation, but this analysis makes the state case look fairly weak. That casts the prosecution in a different light for me.

What baffles me is why DJT keeps lying about not making a hush money payment to Stormy Daniels when it was legal. That makes no sense. Maybe it can be explained by DJT's deranged ego and shameless contempt for inconvenient facts and truths.

As time passes and more little bits like this pop up, a troubling picture develops of deep flaws in the rule of law. Why on Earth would it be legal for a candidate to pay hush money to hide a sex scandal with intent to deceive the voters? That strikes directly into the heart of democracy and the public trust needed to make it function. People like Trump really are above the law because they can afford it.

And why isn't there a federal prosecution for DJT's lies to the FEC about the hush money payment? Is Merrick Garland really that incompetent, and/or is the federal law inadequate to the task of fending off demagogues making a run at kleptocratic dictatorship by not proscribing hush money payments to hookers before elections? What the hell else is the law Swiss cheese about? What else can demagogic kleptocrats running for office do that most normal people would think should be illegal, e.g., shoot someone in broad daylight for the sheer fun of it?