According to my co-blogger Orin Kerr, the NY Falsifying Business Records law, Section 175.10, consists of two elements: 1) falsifying business records; and 2) doing so “when the intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.” Orin suggests that the second element of this law may not withstand First Amendment scrutiny on its own. He argues that this element only needs to be a part of the overall crime and does not need to be constitutional itself.
However, I disagree with this interpretation. Donald Trump, as a candidate, had a First Amendment right to spend money to protect his reputation during the 2016 presidential election. Orin’s interpretation of NY law could potentially restrict Trump’s core political speech. NY cannot have a two-element crime where one element violates the First Amendment. Orin compares Trump’s situation to someone committing battery during a political debate, which is not protected by the First Amendment. But spending money to defend one’s reputation before an election is a protected right.
Alvin Bragg argues that Trump falsified business records to conceal a crime outlined in NY Election Law Section 17-152, which involves conspiring to influence an election through unlawful means. However, paying hush money, like purchasing advertising, is not considered an “unlawful means” of campaigning. Trump’s actions in 2016 are fully protected by the First Amendment.
It is actually Alvin Bragg who has acted improperly by indicting a former president, who is also the Republican nominee for the 2024 presidential election, just to tarnish his reputation. Bragg’s actions have prevented Trump from campaigning during a crucial period due to a gag order imposed by the court. Bragg and the judge handling Trump’s case have violated constitutional rights, but are protected by prosecutorial and judicial immunity rules.
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