I am grateful to Steve for providing clarification on his theory regarding Trump’s potential First Amendment defense in the New York case. From my understanding, Steve’s argument revolves around the interpretation of the phrase “another crime” in New York Penal Law 17.50:
A person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.
Steve posits that the concept of concealing the commission of “another crime” must pertain to an act that not only meets the criteria of a criminal statute but also, when viewed independently, constitutes a crime that would withstand scrutiny under the First Amendment. Therefore, he suggests that if the jury finds these elements of another criminal law to be fulfilled, it does not constitute “another crime” if there could be a First Amendment defense to liability for those elements independently – either based on current laws or a potential reevaluation of the law by the Supreme Court following Trump’s conviction.
This argument presents an intriguing perspective, different from what I initially perceived from Steve’s initial post. I appreciate the clarification and apologize to Steve for any misunderstanding. One aspect worth considering is the interpretive question raised by Steve’s argument. When the New York legislature employs the term “another crime” as part of a requirement, does it signify the elements of a different criminal law, or does it denote an autonomous constitutional concept where the elements of another criminal law are only relevant if they could constitute a standalone criminal offense without infringing upon the Constitution?
Steve seems to support the latter interpretation, which may be valid. However, I am uncertain about this distinction. My initial inclination is to view it as a matter of statutory interpretation rather than a constitutional issue concerning the elements of crimes. While offenses must adhere to the First Amendment in its entirety, I do not believe there is a constitutional dilemma if a specific element of a crime involves activities protected by the First Amendment. For instance, if a legislature decrees that assaulting someone during a protest is a crime, the fact that the protest is protected by the First Amendment does not absolve the act of assault. If my understanding is correct, this question becomes an intriguing inquiry into statutory interpretation assuming Steve’s stance on the First Amendment matter (be it under current laws or potential future alterations).
Although I conducted a brief search on Westlaw to explore New York cases addressing this issue, I did not discover any pertinent information. Researching this topic proves challenging, as the relevant terms often yield unrelated cases. Nonetheless, I extend my gratitude to Steve for his elucidation, and I am eager to learn if others make progress on the statutory query that eluded me.
