Thoughts on the Trump Verdict in New York
Does the Conviction of a Presidential Candidate Even Matter?
As you’ve undoubtedly heard, Donald Trump was convicted yesterday in New York on 34 counts of falsifying business records. On their own, these are misdemeanor charges. Because the falsifying of business records to conceal hush money payments was done with the intent to commit another crime, under New York law (§175.10), the charges became first-degree felonies.
Based on what I can tell, Trump got a fair trial, which is to say that the trial was conducted within the framework of the New York Constitution and the United States Constitution. However, the $35 political contributions that Judge Juan Merchan made approximately four years ago to the Biden campaign and an anti-Republican political action committee can give the perception of a bias. Since political giving by judges in New York is prohibited, an inquiry into the contribution resulted in a warning. Merchan was still allowed to preside over the case.
The motivation behind the charges is an entirely separate question. Some have claimed that Manhattan District Attorney Alvin Bragg campaigned, in part, on prosecuting Trump. These claims come from comments that Bragg made while campaigning for district attorney. From what I can tell, most of these claims were in response to questions during candidate forums and interviews when Bragg and other candidates were directly asked about Trump.
The thing is, there was an existing investigation into Trump and his business dealings started by Bragg’s predecessor, Cy Vance. Bragg had experience with Trump and his businesses prior to taking office in the New York Attorney General’s office, so he largely riffed from that experience but maintained that he would go where the facts took him.
At one point during a forum, Bragg said, “I’m the candidate in the race who has the experience with Donald Trump. I was the chief deputy in the attorney general’s office. We sued the Trump administration over 100 times, for the Muslim travel ban, for family separation at the border, for shenanigans with the census. So, I know how to litigate with him. I also led the team that did the Trump Foundation case. So, I’m ready to go wherever the facts take me, and to inherit that case. And I think it’d be hard to argue with the fact that that’d be the most important, most high-profile case, and I’ve seen him up front and seen the lawlessness that he could do."
When asked if he believed it—presumably, “it” means a prosecution—Bragg said, “I believe we have to hold him accountable. I haven’t seen all the facts beyond the public, but I’ve litigated with him and so I’m prepared to go where the facts take me once I see them, and hold him accountable.”
Pressed further, Bragg added, “You’re right, I am being careful, not just because I am running for office but because every case still has to be judged by the facts and I don’t know all the facts. Right? And so I’ve been doing this for 20 years and I want to be fair. But with that said, there’s a lot that’s out there publicly. I look at what the attorney general is looking at as a civil case, which could become a criminal case at the Manhattan DA’s office. Where on the one hand he’s saying, ‘Hey look, this piece of land is worth a dollar when I want to go pay taxes on it, but when I want to go get a loan, all of a sudden, it’s worth a million.”
Bragg would eventually say that he believed, based on all of the publicly available information, that “there’s a path forward there to make the case.” In other interviews or public appearances, Bragg was more guarded, once even saying, “I will hold him accountable by following the facts where they go. What I’ve seen in the public domain is deeply troubling, this misvaluation of assets to me sounds like the basis of a case that can be criminal. And, as you said, I need to be judicious, as someone who may inherit this case. But what I can say is you look at my record of not just white-collar crimes generally, but specifically with Donald Trump and people can have confidence that I’m going to go where the facts take me.”
If Trump’s appeal rests on the notion that there was a biased prosecutor who was simply out to get him, then I’m not sure he’ll succeed. A candidate for district attorney in a large media market was asked about the potential of prosecuting a high-profile defendant based on an existing investigation. That’s not surprising. Did Bragg campaign on it? It doesn’t seem that way. Did Bragg handle questions about the case well? The answer to that question largely depends on your bias.
On appeal, if Trump’s team is smart, they would target the language of §175.10 as unconstitutionally vague. The statute states, “A person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.”
The question that has to be asked is, “What is the other crime that made these charges felonies?” Well, the prosecution doesn’t have to say. The implication is that the crime is concealing damaging information that may affect the outcome of an election. Trump supporters are quick to note that no federal case was brought against Trump for campaign finance violations. Granted, there was a successful case brought against Michael Cohen on two different counts of federal campaign law violations. Cohen, of course, was the money man in the situation.
Federal prosecutors didn’t bring a case against Trump, who was the sitting president at the time. He was still in office when case investigation ended. No charges were brought against Trump on the matter after he left office. Of course, had Trump been prosecuted for a violation of campaign finance law in connection to the hush money payments, the cacophony of annoying cries that “Biden’s DOJ is prosecuting a political rival” would be even louder than they are now.
There’s almost no way this doesn’t windup before the United States Supreme Court, and the Court has recent caselaw on fair notice and vaguely worded criminal statutes. The ones I’m aware of are Johnson v. United States (2015) and Sessions v. Dimaya (2018). Both cases held that residual clauses of specific statutes (the Armed Career Criminal Act in Johnson and the Immigration Nationality Act in Dimaya) failed to provide fair notice and were, thus, violations of the Due Process Clause of the Fifth Amendment.
At the same time, federal judges can use uncharged and even acquitted conduct at sentencing to give lengthier sentences than provided for under the Sentencing Guidelines. Sentencing for acquitted conduct has even survived Court scrutiny in the past. (There is a bill in Congress, the Prohibiting Punishment of Acquitted Conduct Act, S. 2788 and H.R. 5430, which would end the practice, and the U.S. Sentencing Commission has limited the use of acquitted conduct at sentencing.) Trump does have a favorable Court right now, but that’s not guaranteed in two years or whenever the case finally makes it there on appeal. By then, though, it may not matter.
Will this case have any impact on the election? The electorate has a short-term memory, so who really knows. The expectation is that this will be a close presidential election, so any impact could tilt the results. There’s also the fact that drama and controversy follow Trump pretty much wherever he goes. His supporters don’t care. The question is, do independents care or is this just baked in the cake with Trump? The polls may give us some insight into that, but we’re really not going to know until November.