All posts by Rick Hasen

Top New York Election Lawyers Cannot Recall Anyone Ever Prosecuted for the NY Election Law Being Used to Try to Turn Trump’s Hush Money Payments into a Felony

campaign finance, chicanery

Business Insider confirms what I suspected:

Now, Manhattan prosecutors now say an old, rarely used section of the state election law is their favorite on the menu of potential underlying crimes.

“As the court is aware, falsifying business records in the first degree requires an intent to commit or conceal another crime,” prosecutor Joshua Steinglass told New York State Supreme Court Justice Juan Merchan on Tuesday.

“The primary crime that we have alleged is New York state election law section 17-152,” Steinglass told the judge, lifting into prominence an arcane measure that had previously played only a supporting role in the case.

“There is conspiracy language in the statute,” the prosecutor said, “The entire case is predicated on the idea that there was a conspiracy to influence the election in 2016.”

Business Insider asked two veteran New York election-law attorneys — one a Republican, the other a Democrat — about the law, also known as “Conspiracy to promote or prevent election.”

Neither one could recall a single time when it had been prosecuted.

“I’ve never heard of it actually being used, and I’ve practiced election law for 53 years,” Brooklyn attorney and former Democratic NY state Sen. Martin Connor said of section 17-152.

“I would be shocked — really shocked — if you could find anybody who can give you an example where this section was prosecuted,” agreed Joseph T. Burns, attorney for the Erie County Republican Committee in Buffalo, New York…

Falsifying business records requires proof of at least an attempt to commit an underlying crime to be a felony.

But what if that underlying crime is section 17-152 — conspiring to mess with an election through “unlawful means?”

Things will get “twisty,” Connor said, when prosecutors try to show that Trump’s falsified business records are felonies because of an underlying crime — 17-152 — that itself needs proof of a conspiracy to do something “unlawful.”

“You’re having an underlying crime within an underlying crime to get to that felony,” Connor told BI….

Proof of an intent to violate any of these three laws would be sufficient to satisfy Section 17-152. And once you prove 17-152, you have the underlying crime you need to raise misdemeanor falsifying business records to a felony.

It’s important to remember that Trump is only charged with 34 counts of this one crime: felony falsification of business records, said election-law scholar Jerry H. Goldfeder.

Trump is not charged with actually committing any of the underlying state and federal laws required to prove felony falsification.

Advertisement

So prosecutors have no legal obligation to prove he’s guilty of any of these underlying laws, 17-152 included, said Goldfeder, senior counsel at Cozen O’Connor and author of Goldfeder’s Modern Election Law.

“They only have to prove he intended to commit these underlying crimes,” which is a far lower bar, said Goldfeder, who also directs the Fordham Law School Voting Rights and Democracy Project.

“I think it’s a very viable case,” he told BI.

“And the testimony so far demonstrates that Trump intended to pursue this catch-and-kill scheme and to falsify business records to cover it up — and did so to influence the election,” he said.

Share this:

Rick Hasen’s Live Blog of the Supreme Court’s Oral Argument Over Trump’s Claim of Immunity in the Federal Election Subversion Case (Updates completed)

election subversion risk, Supreme Court

[This post has been updated.]

After a couple of hours of oral argument, it appears that the Supreme Court is unlikely to embrace either Donald Trump’s extreme position—that would seem to give immunity for a president who ordered an assassination of a rival or staged a coup—or the government’s position that a former president is not absolutely immune even for his or her official acts. Conservatives on the Court are going to make it hard to prosecute a former president for most crimes. But they are likely to reject some of the most extreme, insane, authoritarian arguments that were made by Trump’s lawyer.

The final opinion will likely come closer to the government’s position, but it will almost certainly result in a divided set of opinions (which take more time to draft) and a lot of work on remand to rework the results of the case. The bottom line is that Trump is likely to get what he wants—a further delay of this election subversion case, maybe pushing it to after the election. If that happens, the public won’t get the benefit of having a jury determine before the election if Trump tried to steal the 2020 election. Further, if Trump is elected in 2024, he can end this and the other federal prosecution against him. He also is likely to try to pardon himself. And the Supreme Court will be complicit in much of this.

From earlier:

I have called the federal case against Donald Trump for attempting to subvert the results of the 2020 U.S. presidential election perhaps the most important case in U.S. history, at least when it comes to our democracy. That case should have gone to trial last month, but the case got put on hold when Donald Trump filed an interlocutory appeal (that is, an appeal in the middle of trial proceedings) arguing that he is absolutely immune from any criminal prosecution for any acts he undertook as President. Trump lost that argument in the trial court and in the U.S. Court of Appeals for the D.C. Circuit. The Supreme Court agreed to hear the case, on a somewhat expedited basis, but not on the basis that Jack Smith, the special counsel, had asked for (he originally wanted the Court to leapfrog over the D.C. Circuit but the Court said no). Trump already may have effectively won by running out the clock so a trial could not happen before the election. This is the last argument day of the term, and I would not expect an opinion until the very end of the Supreme Court’s term in late June or early July, unless there’s movement to expedite following oral argument.

What I was listening for: how much is there a focus on Trump’s actions in trying to subvert the election? Is there a path to saying that at least such interference is not immune, leaving other immunity issues to another day? Is the Court going to be worried about a slippery slope of potential criminal prosecutions of former presidents after they leave office?

Below the fold you will find my notes that I took as argument went forward:

Continue reading Rick Hasen’s Live Blog of the Supreme Court’s Oral Argument Over Trump’s Claim of Immunity in the Federal Election Subversion Case (Updates completed) →
Share this:

“Trump is a co-conspirator in Michigan’s 2020 false electors plot, state investigator says”

election subversion risk

Detroit News:

Michigan prosecutors consider former President Donald Trump and some of his top aides co-conspirators in the plot to submit a certificate falsely claiming he won Michigan’s 2020 election, an investigator for Attorney General Dana Nessel’s office testified Wednesday in court.

Howard Shock, a special agent for Nessel, said Trump; Mark Meadows, who was Trump’s chief of staff; and Rudy Giuliani, who was his personal lawyer, are “unindicted co-conspirators” in Michigan’s false elector case. That means prosecutors believe they participated, to some extent, in an alleged scheme to commit forgery by creating a false document asserting Trump had won Michigan’s 16 electoral votes when Democrat Joe Biden had won them.

Shock’s testimony came on the sixth day of preliminary examinations in Ingham County District Court as Nessel’s office pursues felony charges against a group of Republican activists who signed the certificate of votes claiming Trump won….

Share this:

Why It Matters Legally Whether We Conceive of the Trump Case as One of “Election Interference”

chicanery

Jed Handelsman Shugerman in NYT oped:

About a year ago, when Alvin Bragg, the Manhattan district attorney, indicted former President Donald Trump, I was critical of the case and called it an embarrassment. I thought an array of legal problems would and should lead to long delays in federal courts.

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….

In stretching jurisdiction and trying a federal crime in state court, the Manhattan D.A. is now pushing untested legal interpretations and applications. I see three red flags raising concerns about selective prosecution upon appeal.

First, I could find no previous case of any state prosecutor relying on the Federal Election Campaign Act either as a direct crime or a predicate crime. Whether state prosecutors have avoided doing so as a matter of law, norms or lack of expertise, this novel attempt is a sign of overreach.

Second, Mr. Trump’s lawyers argued that the New York statute requires that the predicate (underlying) crime must also be a New York crime, not a crime in another jurisdiction. The Manhattan D.A. responded with judicial precedents only about other criminal statutes, not the statute in this case. In the end, they could not cite a single judicial interpretation of this particular statute supporting their use of the statute (a plea deal and a single jury instruction do not count).

Third, no New York precedent has allowed an interpretation of defrauding the general public. Legal experts have noted that such a broad “election interference” theory is unprecedented, and a conviction based on it may not survive a state appeal.

AP:

Lead prosecutor Matthew Colangelo wasted little time during opening statements tying the case to Trump’s campaigning during his first run for the presidency. He said the payments made to Stormy Daniels amounted to “a criminal scheme to corrupt the 2016 presidential election.”

Whether the jury accepts that connection will be pivotal for Trump’s fate. The presumptive GOP nominee faces charges related to falsifying business records that would typically be misdemeanors unless the alleged act could be tied to another crime. Prosecutors were able to charge them as felonies because they allege that the false records were part of an effort to cover up state and federal election law violations — though that’s still not the type of direct election interference that Trump is charged with elsewhere….

ome legal experts monitoring the cases against Trump said they were skeptical of connecting the payments to a form of “election interference.” Doing so also runs the risk of diminishing the gravity of the other charges in the public mind.

Richard Painter, a University of Minnesota Law School professor and former associate White House counsel during the George W. Bush administration, said he believed the facts of the case met the evidence needed to determine whether a felony had been committed that violated campaign law, but added, “The election interference part, I have a little bit of trouble on this.”

Richard Hasen, a UCLA law school professor, said the New York case does not compare to the other election-related charges Trump faces.

“We can draw a fairly bright line between attempting to change vote totals to flip a presidential election and failing to disclose embarrassing information on a government form,” he wrote in a recent Los Angeles Times column.

In an email, Hasen said New York prosecutors were calling the case election interference “because that boosts what may be the only case heard before the election.”

Some said prosecutors’ decision to characterize the New York case as election interference seemed to be a strategy designed to raise its visibility.

“When (Manhattan District Attorney) Alvin Bragg calls it an election interference case, that’s more of a public relations strategy,” said Paul Butler, a professor at Georgetown Law and former federal prosecutor. “I think there was concern that people were looking at the other prosecutions and they weren’t discussing the Manhattan case.”…

Josh Gerstein for Politico:

That means prosecutors usually need evidence that the defendant was an expert in the law, was told what he or she was doing was illegal, or told someone else to ignore the law. Some lawyers believe that may explain why federal prosecutors never charged Trump with the campaign finance crime that Cohen admitted to working with Trump to commit.

“I assume that’s why SDNY didn’t indict Trump,” Eliason said, referring to the U.S. attorney’s office in the Southern District of New York. “I think the willfulness would have been a big hurdle to charging Trump himself.”

Smith said the issue in this case, as in Edwards’, isn’t just whether the defendant had a general understanding of campaign finance law, but could really have known for sure that what he was doing was illegal. “The strongest argument for Trump is that in fact there is quite a bit of controversy over whether this is illegal. Look at the FEC’s own rulings,” Smith said.

It’s unclear how Bragg’s prosecutors would meet that burden or if the judge will require them to. Pretrial motions didn’t really tee up the issue. It is likely to arise as the lawyers debate jury instructions or in a motion the defense typically makes asking the judge to toss the case after the prosecution’s witnesses have testified.

Eisen said he thinks Justice Juan Merchan will apply a lower standard in the state prosecution. “It’s so much easier than in federal court,” Eisen said.

However, there’s a risk to allowing prosecutors to get a conviction without having to prove that Trump knew he was breaking the law: That issue could be strong fodder for an appeal and might lead to any guilty verdicts against Trump being overturned.

“I think the likelihood of a conviction is quite high, quite strong,” said Eliason. “On appeal, that’s where some of these issues come up.”

Share this:

“As Meta flees politics, campaigns rely on new tricks to reach voters”

campaigns, cheap speech

WaPo:

After years of pitching its suite of social media apps as the lifeblood of campaigns,Meta is breaking up with politics. The company has decreased the visibility of politics-focused posts and accounts on Facebook and Instagram as well as imposed new rules on political advertisers, kneecapping the targeting system long used by politicians to reach potential voters.

Waves of layoffs have eviscerated the team responsible for coordinating with politicians and campaigns,according to people familiar with the matter who spoke on the condition of anonymity to discuss private personnel matters. This includes foreign-based workers and U.S. employees who promoted the company’s products to politicians and fielded questions from campaigns about their services.

An advertising sales team, which once embedded with the Trump team during the 2016 election campaign, is now responsible for many of their previous responsibilities, the people said.

Meta’s shift away from current events is forcing campaigns to upend their digital outreach in a move that could transform the 2024 election.Comparing March 2020 to March 2024, both the Biden and Trump campaigns saw 60 percent declinesin their average engagement per Facebook post, a Washington Post review found, with double-digit declines on Instagram.

The Trump team has cast Meta’s moves as an effort to tip the scales in favor of Biden. The Biden campaign, meanwhile, had already begun to shift its online focus, rolling out a cadre of influencers and volunteers to spread their messages across private spaces on social networks….

Meanwhile, political campaigns are adjusting to this new reality. Biden appears to be countering the trend by posting more frequently on social media accounts — including from official White House pages — to drive engagement. Biden-linked Facebook posts increased from about 300 in March 2020 to more than 600 in March 2024, while Trump’s posts dropped from more than 1,000 in March 2020 to about 200 in March 2024, the Post analysis found.

While Trump dramatically increased posts to his own social network, Truth Social, he has refrained from publishing frequently on Twitter, Facebook or YouTube. Top Trump campaign adviser Chris LaCivita likened Meta’s push away from politics to a form of shadow banning, when tech companies allow users to post but secretly depress who sees the content.

Share this:

“Supreme Court declines to decide if vote-by-mail restrictions discriminate in some states”

Uncategorized

USA Today:

The Supreme Court on Monday declined to decide if states that automatically let senior citizens vote by mail must let younger voters do the same, an issue that could affect millions of voters…..

Seven states – Texas, Indiana, Kentucky, Louisiana, Mississippi, South Carolina and Tennessee – allow older voters to request an absentee ballot for any reason but let others do so only under certain circumstances.  

The court on Monday rejected a challenge to these rules brought by three voters in Texas, just as it rejected a similar challenge in 2021 to Indiana’s voting rules. It also twice declined to hear earlier versions of the Texas suit brought by the Texas Democratic Party during the pandemic.

The challengers argued that the unequal treatment of voters is age-based discrimination prohibited by the 26th Amendment.…

Share this:

“Back into the FIRE: Hasen’s response to FIRE and Rohde: Don’t read the press clause out of the Constitution — First Amendment News 420”

First Amendment theory

I have written this reply, as Ron Collins explains:

It all started when I noticed an SSRN post of a forthcoming essay by Richard Hasen. In it, the UCLA School of Law professor took exception to some of what was offered up by FIRE in an amicus brief filed in the Ninth Circuit in TGP Communications v. Sellers. FIRE and Stephen Rohde thereafter weighed in with their responses to Hasen. 

Now, professor Hasen returns to the analytical scene with his rejoinder, which is set out below. 

A few snippets:

Neither FIRE nor Rohde address the problem, “How do you identify journalists when there is finite space or some other scarcity and decide whether to give special treatment like a media shield?” or most of my proposed solutions — such as limiting press protections to professional journalists rather than dabblers, and making the definition of “press” turn on the regularity of engaging in journalistic activities rather than on the type of technology (like a political blog) through which reporting is conveyed.

It may be that FIRE and Rohde believe all the rules that identify professional journalists, including the rules for United States Supreme Court press access that I detail in my chapter, violate the First Amendment. If so, such a ruling would not only eviscerate protection for the press contained in the First Amendment. It would also create Bedlam. Are we going to kick out reporters from The New York Times and Fox News from the White House briefing room and replace them with non-professionals who just have a personal interest in being there? Will this be done by lottery? This system would do a great disservice to the nation and to the ability of the press to serve its educational function — and to serve as a meaningful check on the government.

Are we to give everyone a press shield, essentially ending the pursuit of truth in courts? Or are we to eliminate press protections for professional journalists? Neither FIRE nor Rohde say.

Instead, they focus on only one aspect of my proposal — something which has historically not been a problem, but in the cheap speech era is increasingly becoming one: how to handle people who are professionals in the sense that they write content for websites, but they do not follow journalistic norms. Instead, they are vectors for spreading disinformation, including disinformation about elections being stolen that undermines voter confidence in the democratic process….

Share this:

“My New One in the LA Times: “Why it’s hard to muster even a ‘meh’ over Trump’s New York criminal trial”

chicanery

I have written this piece for the LA Times. It begins:

In watching some of the breathless coverage of Donald Trump’s “hush money” trial, I’m reminded of the 2004 quote from former U.S. Defense Secretary Donald Rumsfeld that, “You go to war with the Army you have, not the Army you might want.” People want the hush money case to be the big case that can take down Trump because it may be the onlyone that goes to trial before the election….

But the hush money case that opens Monday in New York? I have a hard time even mustering a “meh.” Trump may not be convicted of a felony in the case, and if he is, there’s a reasonable chance of an eventual reversal on appeal. Besides, the charges are so minor I don’t expect they will shake up the presidential race. They may actually make that situation worse…

Although the New York case gets packaged as election interference, failing to report a campaign payment is a small potatoes campaign-finance crime. Willfully not reporting expenses to cover up an affair isn’t “interfering” with an election along the lines of trying to get a secretary of state to falsify vote totals, or trying to get a state legislature to falsely declare there was fraud in the state and submit alternative slates of electors. We can draw a fairly bright line between attempting to change vote totals to flip a presidential election and failing to disclose embarrassing information on a government form. If every campaign finance disclosure violation is election interference, our system is rife with it.

I certainly understand the impulse of Trump opponents to label this case as one of election interference — that could resonate with voters and make them less likely to vote for Trump. But any voters who look beneath the surface are sure to be underwhelmed. Calling it election interference actually cheapens the term and undermines the deadly serious charges in the real election interference cases…

Trump also may have serious grounds for appeal in the New York case. It is far from clear that appellate courts would treat the hush money payments as legitimate campaign expenses that needed to be reported, as opposed to personal expenses. And it is uncertain that failing to report a campaign expenditure required by federal law can be a violation of New York state election law against promoting “the election of any person to a public office by unlawful means.” These issues may well have to be sorted out by higher courts.

Share this: