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

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.


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.”

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