The following is a guest post from Stephen R. Weissman:
President-elect Donald Trump is scheduled to be sentenced on November 26th for 34 New York State felonies. Even if his lawyers are able to secure an indefinite postponement of that occasion, there is a serious, legal flaw in his criminal convictions that has gone unrecognized. Furthermore, this consequential misstep is a symptom of the increasing challenges confronting American federalism.
In a nutshell, Trump’s state convictions rest on jurors’ likely conclusion that Trump conspired to violate federal campaign finance and/or tax laws. Under federal legal precedents, such violations require that defendants know that their actions are illegal. But New York Judge Juan Merchan omitted this crucial standard from his jury instructions. This failure brings into question the legitimacy of the verdicts and their sustainability upon appeal to state and federal courts. Whether or not Trump was guilty, his judicial process was clearly deficient.
To recap, the jury determined that Trump broke a state law by falsifying business records to conceal his reimbursement of his attorney, Michael Cohen, who paid $130,000 to a porn star on the eve of the 2016 presidential election to prevent her from alleging a past sexual liaison. It further concluded that Trump did so with “intent to commit, aid or conceal another crime,” raising the business records misdemeanors to felonies. This second crime was breaking another state law which barred conspiracies to “promote” the election of a candidate for public office by “unlawful means.” But what were these “unlawful means”? Here is where federal law comes in.
Drawing from prosecutors suggestions, Judge Merchan offered the jurors three “theories” of the unlawful means. The first one he mentioned was violations of the Federal Election Campaign Act (FECA), described as limiting individual contributions to candidates to $2,700 per election and prohibiting corporate contributions. This was the theory that most resonated with the prosecution’s broad argument to the jury: that Trump conspired with Cohen and a media company to make large, illegal contributions to buy the silence of a porn star, model and doorman on politically damaging allegations of affairs — and subsequently falsified business records to aid or conceal his conduct. Indeed, the prosecution itself told the jury that FECA violations “may be the most obvious” of the “unlawful means” utilized. Trump was less directly implicated in actions covered by the other two theories —false entries on routine federal and state government tax forms regarding the purposes of payments to Cohen and Cohen’s personally falsified paperwork.
Now, to criminally violate FECA’s contribution limits a defendant must act “knowingly and willfully.” “Knowingly” refers to the intent behind the defendant’s actions. “Willfully,” according to federal legal precedents, goes well beyond that. It requires a “guilty mind.” For example, in the campaign finance prosecution that most resembles Trump’s – 2008 Democratic Presidential primary candidate and former Senator John Edwards’ alleged complicity with large payments to support and hide his pregnant mistress – the judge instructed jurors that willfulness meant that “Mr. Edwards acted with knowledge that his course of conduct was unlawful and with the intent to do something the law forbids.”
Picking up the ball, Edwards’ lawyer, Abbe Lowell, told the jury, “The most direct path possible” to deciding the complicated case was to answer the question, “What is the evidence that John knew that anything he was doing to hide the affair could be governed by federal campaign laws, let alone that the affair could violate those laws, or that he would not be in good faith to believe otherwise? Sure, he knew there was a $2,300 limit when somebody wrote a check to the John Edwards for President Campaign. But the prosecution wants you to take that one piece of campaign regulation knowledge out of … 120 pages of law, 360 regulations and 1,000 advisory opinions and apply it to his knowing that a third party paying for a mistress could be a campaign contribution.” He urged jurors to use their “common sense” to put themselves in the defendant’s place: “Affairs, mistresses, pregnancies …as opposed to campaign ads, brochures, rallies as campaign contributions?” Edwards got off with a hung jury.
Yet, Trump’s defense was barred from presenting a similar closing argument. This was because although the judge’s jury instructions correctly required willfulness to determine FECA violations, they gave the jurors no guidance as to what that term actually meant. And during the trial Judge Merchan had repeatedly warned opposing counsel that only he could tell the jury what the law provided.
In contrast, during the October 2021 federal trial of Lev Furnas, a Trump supporter charged with involvement in illegal campaign contributions, the judge explained “willful” to the jury In the same words as the judge in the Edwards case. A Lexis-Nexis search shows that this language is typical for FECA trials and guilty pleas.
Merchan further ignored two Trump-related federal agency documents recognizing that “willful” in FECA signifies knowledge of illegal conduct — the “Statement of Admitted Facts” by Trump’s media company co-conspirator obtained by the U.S. Department of Justice and a Report from the Chief Counsel of the Federal Election Commission on a civil complaint regarding the “hush money” paid to the porn star.
In similar fashion, the judge’s instructions disregarded federal courts’ even stricter standard for willfulness regarding Trump’s alleged federal tax violation, featured in a second theory of “unlawful means.” Thus, if even one of the twelve jurors voted “guilty” on the basis of either the federal campaign finance or tax violation, Trump’s felony convictions would stand on shaky ground.
None of this is to say that with a correct judicial definition of willfulness Trump would have necessarily fared as well as Edwards. The case that the former President was implicated in potentially illegal actions related to his political campaign was somewhat stronger than that against the former Senator. And while the prosecution presented no direct contemporary evidence that Trump knew that he was breaking federal laws, the jury might have inferred that his efforts to conceal his actions reflected a consciousness of legal guilt rather than a concern to avoid political damage and personal embarrassment. Unfortunately, we will never know.
The Trump case shows how American federalism is undermined if state judges are permitted to interpret federal laws and court decisions, with which they may be unfamiliar. Recently, some Republican-led state governments have mounted similar challenges to federal authority. For example, Texas attempted to skirt the federal immigration system by enacting its own, alternative regime. And Idaho has advanced its own interpretation of the federal law governing emergency health care to make it consistent with state law restricting abortions. With such state allies, the new Trump administration might ironically tolerate the kind of encroachments on federal law that facilitated Trump’s felony convictions.
Political Scientist Stephen R. Weissman is former Legislative Representative for Campaign Finance and Election Reform of non-partisan Public Citizen and former Associate Director for Policy at the non-partisan Campaign Finance Institute.