According to my co-blogger Orin Kerr, President Donald Trump’s First Amendment rights are not being violated by the NY State prosecution against him. This is because Trump is being prosecuted for falsifying business records, not for any violation of his freedom of speech. However, the indictment against Trump explicitly states that he falsified business records “to conceal another crime.” This suggests that Trump may have been attempting to hide a violation of federal or NY State election law, which would be protected under the First Amendment as his right to make hush money payments for the purpose of winning the 2016 presidential election. Additionally, the 34 counts in the indictment are for misdemeanor offenses that fall outside the statute of limitations.
In a groundbreaking move, Alvin Bragg, the NY State District Attorney, has been vague about the felony that Trump is accused of concealing through falsified expenses. This ambiguity may be due to the fact that there is no other felony being hidden by Trump’s actions. Any potential felony would likely relate to state or federal campaign finance laws, which could potentially infringe on Trump’s First Amendment rights.
If Trump wishes to challenge any verdict against him, he can argue that the alleged predicate felony being concealed is not actually a crime under the Constitution. He could claim that the First Amendment supersedes any campaign finance laws that may have been violated. Trump could also seek to have the U.S. Supreme Court reconsider and potentially overturn the precedent set in Buckley v. Valeo regarding campaign finance violations.
