https://www.nationalreview.com/2024/04/alvin-braggs-outrageous-conspiracy-theory/
Alvin Bragg’s Outrageous Conspiracy Theory
As I’ve related a few times, Alvin Bragg, Manhattan’s elected progressive Democratic district attorney, is trying to hoodwink the jury into believing that (a) it is a crime for a candidate for public office to conspire with others to suppress politically damaging information, and (b) that Donald Trump was charged with such a conspiracy in the indictment that has resulted in the ongoing trial. In point of fact, there is no such information-suppression conspiracy crime in the law and the indictment against Trump does not charge a conspiracy — it charges 34 counts of falsifying business records with fraudulent intent to commit or conceal another crime.
In court on Tuesday, Bragg’s prosecutors became a bit more transparent in arguing that this “other crime” is a New York election statute that contains a conspiracy provision. But the theory is ridiculous. The statute does not criminalize what Bragg claims Trump did — again, suppress politically damaging information. The invocation of it still calls for Bragg to enforce federal election law, which he has no jurisdiction to do. It is plainly intended for state elections because Congress enacted federal campaign law — which is not Bragg’s remit — to control federal elections. And, cherry on top, the election law Bragg invokes is a misdemeanor — that is, Bragg is trying to exacerbate a single misdemeanor falsification of business records into 34 felony counts by rationalizing that Trump was trying to commit or conceal another misdemeanor.
As I’ve detailed, even though the word conspiracy does not appear in the grand jury’s indictment against Trump, Bragg published his own purported “statement of facts” when the indictment was unsealed. In it, the DA endeavored to spin what the grand jury had charged into a “scheme” to steal the 2016 election by suppressing politically damaging information. Once the trial started, Bragg’s prosecutors upped the ante, claiming this “scheme” was a “conspiracy” involving Trump, his lawyer/fixer Michael Cohen, and David Pecker, then CEO of the National Enquirer’s parent company.
The trial jurors could be forgiven if, after hearing the prosecutors’ opening statement and sitting through two days of testimony, they believe Trump has been charged with conspiracy to steal the 2016 election. That’s what Bragg’s minions keep telling them, and Judge Juan Merchan is allowing them to do it. Juries take cues from the judge; if Merchan won’t put a stop to what the prosecutors are doing, the jurors are going to figure that conspiracy must be the charge in the case.
With that as background, the New York Times reports as follows regarding this exchange during Pecker’s testimony on Tuesday:
Trump’s lawyers have objected all along to prosecutors couching Trump’s relationship with Pecker and Michael Cohen as a conspiracy — after all, Trump is not facing a conspiracy charge. But Joshua Steinglass, one of the prosecutors, just noted for the first time in court that one of the election statutes the case is based on does in fact have a conspiracy provision. That could prove important later when the jury is instructed on the laws they must consider in reaching a verdict.
Now, when the Times says, “one of the election statutes the case is based on,” it is talking nonsense. In the United States, the Constitution requires that what the case is based on be spelled out in the indictment. In Trump’s case, the indictment neither charges Trump with conspiracy nor cites any state election statute.
Rather, the indictment charges Trump with 34 counts of “falsifying business records in the first degree” under §175.10 of New York’s penal law. The crime of falsifying business records is normally a misdemeanor. It is defined in §175.05 as causing false entries to be made in business records if the defendant acts “with intent to defraud.” This misdemeanor can be enhanced into a felony under §175.10 — again, the crime alleged in Trump’s case — if the intent to defraud “includes an intent to commit another crime or to aid or conceal the commission thereof.” [Emphasis added.)]
The indictment does not state what “other crime” Trump allegedly committed or concealed by — allegedly — fraudulently falsifying his business records. This is why since last year, when Bragg unsealed the indictment, I have argued that it is constitutionally insufficient. It does not put the defendant on notice of what crime is alleged. In fact, it does not indicate that the grand jury found probable cause of a particular “other crime” that Trump fraudulently intended to commit or conceal.
Bragg is not an idiot. He is a highly experienced prosecutor. He did not forget to include this vital detail. He intentionally omitted it because the crime he wants to allege is a federal campaign-finance violation. As a county district attorney, Bragg is well aware that he has no jurisdiction to enforce federal law.
Indeed, before becoming a top lawyer in the state attorney general’s office, Bragg was a federal prosecutor in the Southern District of New York. He knows that, under federal law and guidelines, the Justice Department and the Federal Election Commission have exclusive jurisdiction to bring criminal and civil-enforcement actions in connection with campaigns for elections to federal office. Bragg knew it would be scandalous for him to bring such an enforcement action against Trump when (a) he had no authority to do so and (b) the DOJ and FEC had investigated Trump and decided to bring no enforcement action.
Hence, Bragg has been hiding the ball. He did not acknowledge in the indictment that he was trying to enforce federal campaign law. And as I recently detailed, in his “statement of facts,” he purported to establish that Trump had violated federal campaign law by pointing out that Cohen had pled guilty to federal campaign crimes — even though Bragg had to know that Cohen’s guilty plea is not admissible evidence against Trump (and that Cohen pled guilty to those charges because he was desperate to avoid prison for other crimes he’d committed and was hoping — in futility, it turned out — to sell himself to the feds as a cooperating witness against Trump). Bragg must have calculated that (a) the Biden Justice Department would not complain that he was illegitimately seeking to enforce federal law as long as the target was Trump, and (b) he was likely to get a compliant Democratic judge who would not challenge his usurpation of federal authority — and he has certainly hit the jackpot with Judge Merchan.
All Our Opinion in Your Inbox
NR Daily is delivered right to you every afternoon. No charge.
Even now, though, Bragg is reluctant to be transparent about what he’s doing. After all, what he’s trying to enforce is not federal campaign law as it exists; it is a faux federal law that Bragg is making up as he goes along.
Under actual federal election law, payment of an NDA is not a campaign expenditure. Under actual federal election law, even when something is a campaign expenditure, disclosure does not have to be made instantly — it has to be made in the next reporting period, which in connection with the Stormy Daniels NDA would not have been until months after the 2016 election. In Bragg’s peculiar version of federal campaign law, not only do payments to porn stars who extort hush money constitute campaign expenditures, but the moment such payments are made, the candidate — at least if he is Trump — must notify the FEC so the New York Times and MSNBC can give the disclosure maximum publicity.
Manifestly, Bragg law is not federal campaign law. Bragg is smart enough to know this, so he’s come up with yet another facile theory: The “other crime” Trump was trying to commit or conceal was a violation of New York state election law. This, at long last, sets forth the statute that includes “a conspiracy provision,” as prosecutor Joshua Steinglass reminded Judge Merchan (see the Times report excerpted above).
So what is this conspiracy crime? Well, §17-152 of the state’s election laws says a person is guilty of a conspiracy if he agrees with one or more people “to promote or prevent the election of any person to a public office by unlawful means.”
In Bragg’s telling — dutifully quoted by Merchan in his opinion denying Trump’s pretrial motions (at p. 12) — Trump entered “a scheme specifically for purposes of influencing the 2016 election.” But wait: It’s not a crime for a candidate and his supporters to try to influence an election — that’s what a political campaign exists to do. Maybe so, Bragg counters, but under §17-152, such influencing becomes a criminal conspiracy if done “by unlawful means.”
What unlawful means? That brings us back to square one. According to Bragg, the unlawful means was Trump’s supposed violation of federal campaign law.
See? There is no difference between Bragg’s direct reliance on federal campaign law and his invocation of state election law. Either way, Bragg is illegitimately undertaking to enforce federal campaign law and, in so doing, making up his own version of what federal campaign law provides — sharply different from what that law actually says and from the DOJ/FEC standards for enforcing it.
Regarding the prosecutors’ reliance on this state conspiracy law that does not appear in the indictment, three other points are worth making:
First, §17-152 is a state law that is fine for regulating state elections; but Congress enacted federal campaign law to control campaigns for federal office. Trump did not violate federal campaign law, which is why neither the DOJ nor the FEC took enforcement action. (Memo to Alvin Bragg: How is it that you suggest Cohen’s guilty plea to campaign violations is somehow relevant, but you don’t mention the decision by the two authorized federal enforcement agencies not to charge Trump?)
Second, even when §17-152 arguably applies, prosecutors still have to show that the conspirators agreed to do something unlawful. To repeat, it is simply not unlawful to agree to suppress politically damaging information. That legal objective does not become illegal just because §17-152 uses the word conspire.
Third, the conspiracy offense prescribed by §17-152 is a misdemeanor. See what Bragg is trying to do here? The thing that is supposed to turn a business-records-falsification misdemeanor into a much more serious crime — a felony — is proof that the defendant fraudulently intended to commit or conceal another crime. Yet, according to Bragg, that other crime is a misdemeanor, not a serious offense. For that — for a misdemeanor business-records falsification supposedly designed to commit or conceal a misdemeanor state-election violation — Bragg has charged Trump with 34 felonies that, statutorily, add up to a potential 136 years of imprisonment.
What a farce.