Trump May Have Some Good Arguments on Appeal in the Hush Money Case If Convicted, But Steven Calabresi is Likely Very Wrong That Donald Trump Would Have a Good First Amendment Defense

I’ve been critical of the NY district attorney seeking to turn the Trump falsifying business records charges into felony charges in the hush money case now on trial in NY. To turn the misdemeanors into felonies, Trump had to be falsifying the business records to further or conceal “other crime.” The three potential baskets of other crimes are (1) violations of the federal campaign finance law (paying campaign expenses with corporate funds, making it an impermissible corporate campaign contribution, failing to disclose the payments, and lying about the payments as legal expenses); (2) violations of a state election law against influencing an election by unlawful means; and (3) violations of state tax law.

Among other things I noted:

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.

The trial court rejected these arguments in an order before trial, but I expect they will be back on appeal. I also am uncertain if the trial court will require proof to commit or conceal the other crime beyond a reasonable doubt, which seems like it should be required. And I’ve written about my concern about the apparently novel use of the state election law to go after Trump. If the only unlawful means is a federal campaign finance violation, it’s not clear how that could could as “unlawful means” under state law. The state court inexplicably called this a law against “voter fraud and ballot theft” which don’t seem implicated in this case.

So those arguments have a chance on appeal. Aside from those, Steven Calabresi argues that Trump has a First Amendment right to make hush money payments without disclosure, adding: “All that Donald Trump has to do to get any verdict against him overturned is to insist that the predicate felony, which NY alleges he was concealing is not a crime under the Constitution because the First Amendment trumps campaign finance law (pun intended). To the extent that Buckley v. Valeo sustains any such campaign finance violation, Trump should ask the U.S. Supreme Court on his ultimate appeal to overrule Buckley v. Valeo.”

Let’s put aside the state tax law (and maybe the state election law) and focus on the FECA violation. Trump under the FECA theory could have been charged with causing illegal corporate contributions to the campaign and with violating federal campaign finance disclosure laws. For Calabresi to be right, there would have to be a First Amendment right of candidates not to disclose their campaign expenses truthfully. I don’t think even most opponents of disclosure of contributions would find a First Amendment right of candidates to spend money in campaigns without disclosing them. Such payments help deter corruption, inform voters, and help enforce other campaign finance laws. And the Supreme Court in the 2004 case of FEC v. Beaumont has upheld the ban going back to 1910 on direct corporate contributions to candidates. Without such a ban, someone could simply evade individual contribution limits by creating an unlimited number of corporations. The Supreme Court has repeatedly refused to reconsider the Beaumont case even though other aspects of its reasoning have been undermined by subsequent rulings.

In short, Donald Trump may have some potent argument if he’s convicted and loses on appeal, but the First Amendment is not likely one of them.

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