What Happens When the Law and the Indictment Do Not State What the Crime Is:Bragg makes it up as he goes along, shredding due process along the way.Andrew C. McCarthy
I have a column up today on why Manhattan DA Alvin Bragg’s prosecution of former president Donald Trump violates both the federal and state constitutions.
It offends the U.S. Constitution because the indictment pleads a crime (felony falsification of business records) that is different from the one Bragg is presenting to the jury (the “crime” of conspiracy to steal an election by violating federal campaign-finance statutes — a crime that does not exist in New York law). The prosecution flouts New York’s constitution because the felony business-records-falsification statute (§175.10) does not describe with specificity what is meant by “another crime” — i.e., assuming a person falsifies business records with a fraudulent intent to conceal “another crime,” the statute does not elaborate, by describing conduct or citing other statutory provisions, what these other crimes are that would trigger the felony penalty.
When it comes to due process, it is about as basic as it gets that, to be sufficient, penal statutes and indictments must put people on notice of, respectively, what conduct has been proscribed and what proscribed conduct has been charged.
When basic due process is denied, we get the confusing farce that is the ongoing trial. The newest actor in this romp is Keith Davidson, a lawyer who represented Playboy model Karen McDougal and porn star Stormy Daniels, the two women who claim to have had sexual liaisons with Trump circa 2006 — i.e., a decade before he ran for president.
Here’s a dispatch from this morning by the New York Times’ Jonah Bromwich, who is reporting from inside the courthouse (the trial is not being televised, so we much rely on such reporting):
We are still looking at the texts between Dylan Howard, then the editor of The National Enquirer, and Keith Davidson. Davidson tells Howard that Karen McDougal’s story “should be told” and Howard responds “I agree.” The Enquirer, as the jurors already know, had no intention of telling the story — instead it sought to bury it. So not only does this evidence remind us of David Pecker’s testimony last week, it also helps prosecutors double down on the idea that The National Enquirer was involved in a secret plot to help Trump. It’s a reasonable explanation for why Howard was lying.
Sigh. Yes, the Enquirer had a stealthy arrangement with Trump and his “fixer,” Michael Cohen, to help Trump’s election prospects by burying politically damaging information, such as claims of extramarital affairs. But it is not against the law to bury damaging stories, as Rich reminded us yesterday in recalling the energetic 1992 Clinton-campaign project to bury the stories of numerous women who claimed to have had flings with Bill Clinton.
And was the Enquirer lying to McDougal’s lawyer when its editor told him that he “agreed” that McDougal’s story should be told? Sure he was. That’s very dishonest, to be sure, so perhaps McDougal was right to file a civil lawsuit against the Enquirer, as David Pecker — then CEO of the tabloid’s parent company — related that she did.
Nevertheless, the stealth and dishonesty do not violate the criminal law because the legislature did not make them statutory crimes. The jurors are probably under the misimpression that Trump, Cohen, and Pecker were complicit in a conspiracy to suppress information because that’s what prosecutors have told them. But no conspiracy is charged against Trump in the indictment, and there is no conspiracy statute in New York law that criminalizes a “secret plot” to help a candidate suppress politically damaging information.
When Trump’s lawyers pointed that out last week, noting that nondisclosure agreements (a.k.a. “hush-money” deals) are legal and common, Bragg’s assistant prosecutor Joshua Steinglass countered that there was a conspiracy statute in the case — the New York crime of “conspiracy to promote or prevent election,” codified in §17-152 of the state’s election law. As I’ve explained, this is preposterous. That conspiracy crime is not charged or even mentioned in the indictment. It is not specified in the felony business-records-falsification statute, as the New York constitution requires if it is going to be enforced as part of that statute.
Moreover, if it really applied, as Bragg and Steinglass now claim it does, one would naturally ask, “Why didn’t prosecutors just charge it in the indictment?” There are two answers.
First, because a §17-152 conspiracy is a misdemeanor — i.e., just like the misdemeanor business-records-falsification statute (§175.05) that Bragg also didn’t charge, §17-152 has a two-year statute of limitations. Ergo, as to the conduct in this case, the time to charge that conspiracy lapsed in 2019. And yes, Bragg is now trying to qualify for the six-year felony statute of limitations — so he could charge 34 felonies with a potential of 136 years’ imprisonment — by stitching together two misdemeanors as to which the statute of limitations lapsed four years before Bragg finally indicted the case.
Second, to establish a §17-152 conspiracy, it is not enough for prosecutors to prove that a defendant conspired to promote a candidate’s election; they also have to establish an intent to promote it “by unlawful means.” Even if such a conspiracy charge hadn’t been time-barred, Bragg would not have wanted to spell the supposedly “unlawful means” out in an indictment because the illegality he wants to prove is a supposed violation of federal campaign-finance law. Bragg, as a state DA, has no jurisdiction to prosecute federal campaign-finance law.
Nondisclosure agreements are legal. They do not run afoul of campaign law because they are technically not campaign expenditures — which is why the Justice Department and FEC, which have exclusive prosecutorial authority over federal campaign law, decided not to prosecute Trump.
Why is this so important? Because if, as an objective legal matter, a disbursement of money is not a campaign expenditure, then it does not matter what the people involved in the disbursement were subjectively thinking. They could have guilty consciences. They could be sneaky, stealthy, and dishonest. But if the payment of “hush money” is not a campaign expenditure, then there is no crime, period.
Nor, in any event, is conspiracy to violate federal campaign-finance law the crime Bragg charged. But it’s often hard to know what Bragg charged, especially by reading news coverage, because the business-records statute he invoked does not state the crime he indicted (concealment of a federal campaign violation), and the indictment he filed does not charge the “offense” he is presenting to the jury (conspiracy to suppress politically damaging information).
This is a prosecutor making it up as he goes along. Due process worthy of the name does not tolerate that.
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