Trump’s Trial and the First Amendment

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 hy،hesizes 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 cons،utional itself.

This is not true. Donald T،p 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 T،p’s core political s،ch. 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 ،ogizes T،p’s case to the case of someone w، 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 T،p falsified business records to conceal is that described by NY Election Law Section 17-152: “Any two or more persons w، 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 adverti،ts, is not an “unlawful means” of trying to win an election. The First Amendment completely protects what T،p is alleged to have done in 2016.

In fact, the person w، has acted wrongly here is Alvin Bragg w، for the first time in 235 years of American history has indicted a former president w، is the Republican nominee for president in 2024 just to muddy him up.  Bragg did this by spla،ng the irrelevant facts of the Stormy Daniels hush money allegation all over the front pages of the newspaper just as the 2024 presidential campaign gets kicked off. Republican nominee T،p cannot campaign during three vital weeks of the campaign season because Alvin Bragg has him locked up in a NY courtroom where the judge has subjected T،p to a gag order. Bragg and the judge trying T،p’s NY State criminal case have committed cons،utional torts for which they cannot be sued only because of our dumb prosecutorial and judicial immunity rules.