My opinion on New York’s prosecution of Donald Trump is mixed. When considering all the crimes Trump has committed, the ones charged in New York seem relatively minor. However, I do not agree with my co-blogger Steve Calabresi’s assertion that Trump has a First Amendment defense to the charges.
Firstly, Trump was not specifically charged with paying hush money. According to the indictment, Trump faces 34 counts of maintaining false business records. The alleged crime is not the payments to silence Daniels, but the falsification of records to conceal those payments. (In other words, it’s not the act of covering up, but the act of covering up the cover-up.) Whether Trump would have a First Amendment right to pay Daniels for silence is irrelevant, as that was not the basis of the charges.
To claim that Trump has a First Amendment defense, one would have to argue that crimes related to campaign spending are protected under the First Amendment. Even if Steve’s argument is based on a theoretical interpretation of the First Amendment rather than existing law, I fail to see how there could be a constitutional right to engage in such behavior. As far as I know, there is no First Amendment protection for committing election-related offenses. Supporting a candidate does not justify fraudulent activities.
