XPost: misc.legal, alt.politics.trump, alt.fan.rush-limbaugh   
   XPost: talk.politics.guns, sac.politics   
   From: yourdime@outlook.com   
      
   By Jed Handelsman Shugerman   
      
   Mr. Shugerman is a law professor at Boston University.   
      
   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.   
      
   To recap: Mr. Trump is accused in the case of falsifying business records.   
   Those are misdemeanor charges. To elevate it to a criminal case, Mr. Bragg   
   and his team have pointed to potential violations of federal election law   
   and state tax fraud. They also cite state election law, but state   
   statutory definitions of “public office” seem to limit those statutes to   
   state and local races.   
      
   Both the misdemeanor and felony charges require that the defendant made   
   the false record with “intent to defraud.” A year ago, I wondered how   
   entirely internal business records (the daily ledger, pay stubs and   
   invoices) could be the basis of any fraud if they are not shared with   
   anyone outside the business. I suggested that the real fraud was Mr.   
   Trump’s filing an (allegedly) false report to the Federal Election   
   Commission, and only federal prosecutors had jurisdiction over that   
   filing.   
      
   A recent conversation with Jeffrey Cohen, a friend, Boston College law   
   professor and former prosecutor, made me think that the case could turn   
   out to be more legitimate than I had originally thought. The reason has to   
   do with those allegedly falsified business records: Most of them were   
   entered in early 2017, generally before Mr. Trump filed his Federal   
   Election Commission report that summer. Mr. Trump may have foreseen an   
   investigation into his campaign, leading to its financial records. Mr.   
   Trump may have falsely recorded these internal records before the F.E.C.   
   filing as consciously part of the same fraud: to create a consistent paper   
   trail and to hide intent to violate federal election laws, or defraud the   
   F.E.C.   
      
   In short: It’s not the crime; it’s the cover-up.   
      
   Looking at the case in this way might address concerns about state   
   jurisdiction. In this scenario, Mr. Trump arguably intended to deceive   
   state investigators, too. State investigators could find these   
   inconsistencies and alert federal agencies. Prosecutors could argue that   
   New York State agencies have an interest in detecting conspiracies to   
   defraud federal entities; they might also have a plausible answer to   
   significant questions about whether New York State has jurisdiction or   
   whether this stretch of a state business filing law is pre-empted by   
   federal law.   
      
   However, this explanation is a novel interpretation with many significant   
   legal problems. And none of the Manhattan D.A.’s filings or today’s   
   opening statement even hint at this approach.   
      
   Instead of a theory of defrauding state regulators, Mr. Bragg has adopted   
   a weak theory of “election interference,” and Justice Juan Merchan   
   described the case, in his summary of it during jury selection, as an   
   allegation of falsifying business records “to conceal an agreement with   
   others to unlawfully influence the 2016 election.”   
      
   As a reality check, it is legal for a candidate to pay for a nondisclosure   
   agreement. Hush money is unseemly, but it is legal. The election law   
   scholar Richard Hasen rightly observed, “Calling it election interference   
   actually cheapens the term and undermines the deadly serious charges in   
   the real election interference cases.”   
      
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   In Monday’s opening argument, the prosecutor Matthew Colangelo still   
   evaded specifics about what was illegal about influencing an election, but   
   then he claimed, “It was election fraud, pure and simple.” None of the   
   relevant state or federal statutes refer to filing violations as fraud.   
   Calling it “election fraud” is a legal and strategic mistake, exaggerating   
   the case and setting up the jury with high expectations that the   
   prosecutors cannot meet.   
      
   The most accurate description of this criminal case is a federal campaign   
   finance filing violation. Without a federal violation (which the state   
   election statute is tethered to), Mr. Bragg cannot upgrade the misdemeanor   
   counts into felonies. Moreover, it is unclear how this case would even   
   fulfill the misdemeanor requirement of “intent to defraud” without the   
   federal crime.   
      
   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.   
      
   Mr. Trump’s legal team also undercut itself for its decisions in the past   
   year: His lawyers essentially put all of their eggs in the meritless   
   basket of seeking to move the trial to federal court, instead of seeking a   
   federal injunction to stop the trial entirely. If they had raised the   
   issues of selective or vindictive prosecution and a mix of jurisdictional,   
   pre-emption and constitutional claims, they could have delayed the trial   
   past Election Day, even if they lost at each federal stage.   
      
      
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