I have argued that former president Donald Trump’s prosecution in the so-called hush-money case brought by Manhattan’s elected progressive Democratic district attorney Alvin Bragg is offensive in various ways.
Bragg, an election denier, is trying to convict Trump of a crime that is not charged in the indictment — to wit, conspiracy to steal the 2016 election by suppressing negative information in violation of federal campaign law. This violates the Fifth Amendment to the United States Constitution, which requires a felony charge to be spelled out in an indictment whose criminal elements have been established by probable cause to the satisfaction of a grand jury. Here, the problem is not just that there is no indication the grand jury was presented with an election-theft conspiracy offense; there is no such conspiracy crime in New York penal law. As a state prosecutor, moreover, Bragg has no jurisdiction to enforce federal law — as to which Congress vested “exclusive” criminal- and civil-enforcement authority, respectively, in the Justice Department and the Federal Election Commission.
Worse still is that Judge Juan Merchan is not just letting Bragg get away with this; he is consciously abetting the district attorney — thus adding heft to Trump’s claim that Merchan is deeply conflicted by political bias.
Nevertheless, the violation of Trump’s rights is even more basic.
Once one clears away the election-theft and federal-law underbrush, Trump is actually charged not with a conspiracy but with 34 substantive felony violations of a New York statute that makes it a crime to falsify business records with the fraudulent intent to conceal “another crime.”
What other crime? The penal statute in question doesn’t say. That’s a fatal problem because New York State’s constitution mandates that a statute must spell out any statutory terms it is incorporating. Under Article III, §16, of the state constitution, incorporation by reference is not permitted.
To be more specific, Trump is charged under §175.10 of the state penal law with “falsifying business records in the first degree.” Here is that provision, in pertinent part:
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. [Emphasis added.]
Note that, following New York’s afore-described constitutional rule, the felony business-records statute expressly incorporates the misdemeanor crime of “falsifying business records in the second degree.” This kind of incorporation has been approved by the Court of Appeals, New York’s highest court, only because it expressly states the terms of a specified statute that are being included. That is, §175.10 expressly cites to and expressly requires commission of the second-degree offense. That offense, §175.05, states exactingly what conduct the legislature has criminalized: in Trump’s case, “with intent to defraud, . . . caus[ing] a false entry to be made in the business records of an enterprise.” Ergo, people cannot complain that they are not on notice of what it means to falsify business records.
The remainder of §175.10, however, provides virtually no notice — including with respect to its most consequential aspect: the additional element that makes first degree falsification a felony, punishable by up to four years’ imprisonment.
The difference between the misdemeanor prescribed by §175.05 and the felony prescribed by §175.10 is that the latter requires proof that the falsifier’s fraudulent intent included the concealment of “another crime.” But the statute is constitutionally infirm — probably in all cases, but at least as applied to Trump — because it does not state what “other crimes” trigger felony liability.
Under Article III, §16 of the New York Constitution:
No act shall be passed which shall provide that any existing law, or any part thereof, shall be made or deemed a part of said act, or which shall enact that any existing law, or part thereof, shall be applicable, except by inserting it in such act. [Emphasis added.]
This is a due-process provision meant to prevent exactly what Bragg has done here: force a defendant to go to trial without being put on notice of the charge.
As I explained in my weekend column, Bragg insists — with the ready indulgence of Judge Merchan — that he is free to enforce the complex corpus of federal campaign-finance law because §175.10 allows him to contend that any conceivable “other crime” that a defendant might have been trying to conceal triggers the business-records falsification felony — the other crime is not specified in the business-record statute, and according to Bragg and Merchan, the prosecutor does not even have to state it in the indictment.
Manifestly, however, due process requires that there must be some limiting principle. I deduced that, since we’re talking about a provision of the New York penal code that a New York state prosecutor would have authority to enforce, “another crime” under §175.10 must be a New York crime. Otherwise, I observed:
Bragg similarly has jurisdiction to enforce, say, Chinese penal statutes, sharia’s hudud crimes, and perhaps even the criminal laws of Rome (after all, under the Bragg/Merchan rationale, the statute doesn’t say the “other crime” must still be in existence).
Well, it turns out that, despite the insouciance of the district attorney and the judge, the New York constitution is even more stringent than I supposed — i.e., even more solicitous of the rights of defendants. Article III, §16, mandates that if a prosecutor is to be enabled by a penal statute to enforce another law, including federal law, the conduct proscribed by that other law, or at very least the citation of that other law, must be spelled out in the penal statute. A penal statute may not just vaguely incorporate “another crime” by reference and leave everyone guessing about what that other crime might be – i.e., what conduct it proscribes, or at least where in law it is codified.
Other New York provisions elucidate this point.
For example, Article III of the state constitution also provides, in §22, that “notwithstanding . . . any other provision of this constitution,” the legislature, in defining the “income” on which taxes may be imposed, may refer “to any other provision of the laws of the United States.” That is, the drafters of the state constitution understood the need to expressly refer to federal law and expressly grant the legislature authority to incorporate federal law, for the specific and narrow purpose of defining taxable income. Otherwise, they would have run afoul of the principle — made explicit in §16, excerpted above — that statutes must spell out any other statutes they are incorporating.
Or take §220.00 of state public-health law, which defines the “controlled substances” that state criminal law makes illegal for drug-trafficking purposes. Unlike the felony business-record falsification statute (§175.10, excerpted above), §220.00 does not refer to just any “controlled substance” or “another controlled substance”; it exactingly provides that a controlled substance is actionable only if it is listed in specific, expressly stated provisions of state public-health law (e.g., §3306, whose lists of controlled substances, and the “schedules” of varying seriousness on which those substances appear, is cited several times).
If the New York legislature meant to give state prosecutors authority to enforce federal campaign law, then to be in compliance with the New York constitution they had to do it expressly — by expressly describing the specific conduct that they were purporting to criminalize, or by at least referring to the specific provisions of federal law they were purporting to authorize for state prosecution.
Not only would that have put the public on notice that a state prosecutor might try to use the state business-records crimes to reach campaign-finance activity in federal elections; it would also have given the federal government notice so that it could object.
As I’ve pointed out, Congress gave the Justice Department and the FEC exclusive enforcement authority over federal campaign law to ensure uniform application nationally of what is an esoteric, constitutionally fraught area of law. To allow any local prosecutor in the country, despite having no federal jurisdiction, to implicate these laws and impose his own version of them is the antithesis of what Congress intended.
I do not know if Trump’s lawyers have raised a New York constitutional objection to the felony business-records-falsification statute. There is no indication in Judge Merchan’s omnibus ruling on pretrial motions that the defense claimed the statute was unconstitutional, either on its face or at least as applied to Trump in Bragg’s case. This is a profound state-constitutional issue, however, casting doubt on the legitimacy of a prosecution: The legislature has failed to put an accused on notice of what conduct has been proscribed. Defense attorneys should raise it if they haven’t already.
Bragg’s prosecution violates the U.S. Constitution because he is trying Trump on a crime — conspiracy to steal an election by violating federal campaign law — that is not charged in the indictment and is not even a New York crime. Bragg’s prosecution also violates the New York constitution because the felony business-records-falsification statute he invokes fails to spell out, expressly and with specificity, the “other crimes” that trigger it — and, in the instance of this prosecution against Trump, fails to spell out whether the state legislature intended to empower state prosecutors to enforce federal campaign law.