https://www.nationalreview.com/corner/what-happens-when-the-law-and-the-indictment-do-not-state-what-the-crime-is/?utm_source=recirc-desktop&utm_
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.