Legal Problems of the New York Criminal Case against Trump

In the case brought by the New York County District Attorney,  Trump’s goose would be pretty well cooked on the misdemeanor Falsification of Business Records in the Second Degree, NYPL. §175.05. There are 34 counts of the indictment listing e.g., invoices and checks falsified to cover up the hush money payments made via Michael Cohen to Stormy Daniels. That is, it would be cooked but for the two year misdemeanor statute of limitations.

Did Trump committed the felony of falsification of business records in the first degree, §175.10, for which there is no limitations problem?

It requires that the falsification be done with “intent to commit another crime or to aid or conceal the commission thereof.” The D.A.’s Office has been cagey as to just what crime they will cite to the jury as the basis for this felony bump up.

Some commentators have assumed that the prosecution would argue that the crime is a violation of the federal election law. This would raise preemption issues because, the New York statute would, in effect, add punishment on top of that mandated by the federal law. See Pennsylvania v. Nelson 350 U.S. 497 (1956). So, there would be an argument that §175.10 so applied would be unconstitutional (Supremacy Clause). Yet preemption might be avoided by an argument citing the state's special interest with respect to the New York delegates to be sent to the Electoral College

We don’t have to get to the subtleties of preemption, however, because the §175.10 crime, it appears, must be a New York crime, not a federal crime:

“Crime” means a misdemeanor or a felony. §10.00 (6)

“Felony” means an offense for which a sentence to a term of imprisonment in excess of one year may be imposed. §10.00 (5)

“Misdemeanor” means an offense, other than a “traffic infraction,” for which a sentence to a term of imprisonment in excess of fifteen days may be imposed, but for which a sentence to a term of imprisonment in excess of one year cannot be imposed. . . §10.00 (4)

“Offense” means conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state or by any law, local law or ordinance of a political subdivision of this state, or by any order, rule or regulation of any governmental instrumentality authorized by law to adopt the same. §10.00 (1) (All emphases added.)

An argument might be made that the last clause of subsection (1) makes a New York “crime” out of whatever is deemed criminal by federal law. There is, after all, the Supremacy Clause.

If violation of the federal election law cannot furnish the bump from misdemeanor to felony falsification of business records, how about criminal violation of New York election law? The best candidate statute I have found for this is section 17-152 of the New York Election Law: 

Any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor.

Arguably, Trump and Cohen could be seen as having conspired to promote Trump’s election to the public office of President of the United States by omitting to supply true information as required by federal law regarding campaign expenses, the hush money payments to Stormy Daniels. I haven’t found case support for such any such use of ELN §17-152, but neither have I found anything clearly to the contrary.

Could the bump up crime be an offence against members of the electorate pursuant to the fraud section of the New York Penal Law? Here is a possibility NYPL § 190.65(1):

A person is guilty of a scheme to defraud in the first degree when he or she: (a) engages in a scheme constituting a systematic ongoing course of conduct with intent to defraud ten or more persons or to obtain property from ten or more persons by false or fraudulent pretenses, representations or promises . . . 

You may be wondering whether “defraud” here could possibly include inducing a voter to vote for one candidate rather than another via omission of information on election financing forms. Your doubts are well placed. What I elided from the statue is “and so obtains property from one or more of such persons.”(Emphasis added.)  A good generalization is that fraud in the New York criminal statute is all about wrongfully getting another’s property. Affecting votes won’t do it.

The D.A.’s office is being cagey about the bump up crime for a reason.