By Jed Handelsman Shugerman

Mr. Shugerman is a law professor at Boston University.

About a year ago, when Alvin Bragg, the Manhattan district attorney,
indicted former President Donald Trump, I was critical of the case and
called it an embarrassment. I thought an array of legal problems would and
should lead to long delays in federal courts.

After listening to Monday�s opening statement by prosecutors, I still
think the Manhattan D.A. has made a historic mistake. Their vague
allegation about �a criminal scheme to corrupt the 2016 presidential
election� has me more concerned than ever about their unprecedented use of
state law and their persistent avoidance of specifying an election crime
or a valid theory of fraud.

To recap: Mr. Trump is accused in the case of falsifying business records.
Those are misdemeanor charges. To elevate it to a criminal case, Mr. Bragg
and his team have pointed to potential violations of federal election law
and state tax fraud. They also cite state election law, but state
statutory definitions of �public office� seem to limit those statutes to
state and local races.

Both the misdemeanor and felony charges require that the defendant made
the false record with �intent to defraud.� A year ago, I wondered how
entirely internal business records (the daily ledger, pay stubs and
invoices) could be the basis of any fraud if they are not shared with
anyone outside the business. I suggested that the real fraud was Mr.
Trump�s filing an (allegedly) false report to the Federal Election
Commission, and only federal prosecutors had jurisdiction over that
filing.

A recent conversation with Jeffrey Cohen, a friend, Boston College law
professor and former prosecutor, made me think that the case could turn
out to be more legitimate than I had originally thought. The reason has to
do with those allegedly falsified business records: Most of them were
entered in early 2017, generally before Mr. Trump filed his Federal
Election Commission report that summer. Mr. Trump may have foreseen an
investigation into his campaign, leading to its financial records. Mr.
Trump may have falsely recorded these internal records before the F.E.C.
filing as consciously part of the same fraud: to create a consistent paper
trail and to hide intent to violate federal election laws, or defraud the
F.E.C.

In short: It�s not the crime; it�s the cover-up.

Looking at the case in this way might address concerns about state
jurisdiction. In this scenario, Mr. Trump arguably intended to deceive
state investigators, too. State investigators could find these
inconsistencies and alert federal agencies. Prosecutors could argue that
New York State agencies have an interest in detecting conspiracies to
defraud federal entities; they might also have a plausible answer to
significant questions about whether New York State has jurisdiction or
whether this stretch of a state business filing law is pre-empted by
federal law.

However, this explanation is a novel interpretation with many significant
legal problems. And none of the Manhattan D.A.�s filings or today�s
opening statement even hint at this approach.

Instead of a theory of defrauding state regulators, Mr. Bragg has adopted
a weak theory of �election interference,� and Justice Juan Merchan
described the case, in his summary of it during jury selection, as an
allegation of falsifying business records �to conceal an agreement with
others to unlawfully influence the 2016 election.�

As a reality check, it is legal for a candidate to pay for a nondisclosure
agreement. Hush money is unseemly, but it is legal. The election law
scholar Richard Hasen rightly observed, �Calling it election interference
actually cheapens the term and undermines the deadly serious charges in
the real election interference cases.�

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In Monday�s opening argument, the prosecutor Matthew Colangelo still
evaded specifics about what was illegal about influencing an election, but
then he claimed, �It was election fraud, pure and simple.� None of the
relevant state or federal statutes refer to filing violations as fraud.
Calling it �election fraud� is a legal and strategic mistake, exaggerating
the case and setting up the jury with high expectations that the
prosecutors cannot meet.

The most accurate description of this criminal case is a federal campaign
finance filing violation. Without a federal violation (which the state
election statute is tethered to), Mr. Bragg cannot upgrade the misdemeanor
counts into felonies. Moreover, it is unclear how this case would even
fulfill the misdemeanor requirement of �intent to defraud� without the
federal crime.

In stretching jurisdiction and trying a federal crime in state court, the
Manhattan D.A. is now pushing untested legal interpretations and
applications. I see three red flags raising concerns about selective
prosecution upon appeal.

First, I could find no previous case of any state prosecutor relying on
the Federal Election Campaign Act either as a direct crime or a predicate
crime. Whether state prosecutors have avoided doing so as a matter of law,
norms or lack of expertise, this novel attempt is a sign of overreach.

Second, Mr. Trump�s lawyers argued that the New York statute requires that
the predicate (underlying) crime must also be a New York crime, not a
crime in another jurisdiction. The Manhattan D.A. responded with judicial
precedents only about other criminal statutes, not the statute in this
case. In the end, they could not cite a single judicial interpretation of
this particular statute supporting their use of the statute (a plea deal
and a single jury instruction do not count).

Third, no New York precedent has allowed an interpretation of defrauding
the general public. Legal experts have noted that such a broad �election
interference� theory is unprecedented, and a conviction based on it may
not survive a state appeal.

Mr. Trump�s legal team also undercut itself for its decisions in the past
year: His lawyers essentially put all of their eggs in the meritless
basket of seeking to move the trial to federal court, instead of seeking a
federal injunction to stop the trial entirely. If they had raised the
issues of selective or vindictive prosecution and a mix of jurisdictional,
pre-emption and constitutional claims, they could have delayed the trial
past Election Day, even if they lost at each federal stage.

Another reason a federal crime has wound up in state court is that
President Biden�s Justice Department bent over backward not to reopen this
valid case or appoint a special counsel. Mr. Trump has tried to blame Mr.
Biden for this prosecution as the real �election interference.� The Biden
administration�s extra restraint belies this allegation and deserves more
credit.

Eight years after the alleged crime itself, it is reasonable to ask if
this is more about Manhattan politics than New York law. This case should
serve as a cautionary tale about broader prosecutorial abuses in America �
and promote bipartisan reforms of our partisan prosecutorial system.

Nevertheless, prosecutors should have some latitude to develop their case
during trial, and maybe they will be more careful and precise about the
underlying crime, fraud and the jurisdictional questions. Mr. Trump has
received sufficient notice of the charges, and he can raise his arguments
on appeal. One important principle of �our Federalism,� in the Supreme
Court�s terms, is abstention, that federal courts should generally allow
state trials to proceed first and wait to hear challenges later.

This case is still an embarrassment of prosecutorial ethics and apparent
selective prosecution. Nevertheless, each side should have its day in
court. If convicted, Mr. Trump can fight many other days � and perhaps win
� in appellate courts. But if Monday�s opening is a preview of exaggerated
allegations, imprecise legal theories and persistently unaddressed
problems, the prosecutors might not win a conviction at all.

Jed Handelsman Shugerman (@jedshug) is a law professor at Boston
University.

https://www.nytimes.com/2024/04/23/opinion/bragg-trump-trial.html

On 4/24/2024 2:00 AM, useapen wrote:
> By Jed Handelsman Shugerman
>
> Mr. Shugerman is a law professor at Boston University.
>
> About a year ago, when Alvin Bragg, the Manhattan district attorney,
> indicted former President Donald Trump, I was critical of the case and
> called it an embarrassment. I thought an array of legal problems would and
> should lead to long delays in federal courts.
>
> After listening to Monday’s opening statement by prosecutors, I still
> think the Manhattan D.A. has made a historic mistake. Their vague
> allegation about “a criminal scheme to corrupt the 2016 presidential
> election” has me more concerned than ever about their unprecedented use of
> state law and their persistent avoidance of specifying an election crime
> or a valid theory of fraud.

Alvin Bragg, black. Letitia James, black. Fat Fani Willis, black.
Kamala Harris, pretends to be black. No left-wing progressive black
conspiracy here...

> To recap: Mr. Trump is accused in the case of falsifying business records.
> Those are misdemeanor charges. To elevate it to a criminal case, Mr. Bragg
> and his team have pointed to potential violations of federal election law
> and state tax fraud. They also cite state election law, but state
> statutory definitions of “public office” seem to limit those statutes to
> state and local races.
>
> Both the misdemeanor and felony charges require that the defendant made
> the false record with “intent to defraud.” A year ago, I wondered how
> entirely internal business records (the daily ledger, pay stubs and
> invoices) could be the basis of any fraud if they are not shared with
> anyone outside the business. I suggested that the real fraud was Mr.
> Trump’s filing an (allegedly) false report to the Federal Election
> Commission, and only federal prosecutors had jurisdiction over that
> filing.
>
> A recent conversation with Jeffrey Cohen, a friend, Boston College law
> professor and former prosecutor, made me think that the case could turn
> out to be more legitimate than I had originally thought. The reason has to
> do with those allegedly falsified business records: Most of them were
> entered in early 2017, generally before Mr. Trump filed his Federal
> Election Commission report that summer. Mr. Trump may have foreseen an
> investigation into his campaign, leading to its financial records. Mr.
> Trump may have falsely recorded these internal records before the F.E.C.
> filing as consciously part of the same fraud: to create a consistent paper
> trail and to hide intent to violate federal election laws, or defraud the
> F.E.C.
>
> In short: It’s not the crime; it’s the cover-up.
>
> Looking at the case in this way might address concerns about state
> jurisdiction. In this scenario, Mr. Trump arguably intended to deceive
> state investigators, too. State investigators could find these
> inconsistencies and alert federal agencies. Prosecutors could argue that
> New York State agencies have an interest in detecting conspiracies to
> defraud federal entities; they might also have a plausible answer to
> significant questions about whether New York State has jurisdiction or
> whether this stretch of a state business filing law is pre-empted by
> federal law.
>
> However, this explanation is a novel interpretation with many significant
> legal problems. And none of the Manhattan D.A.’s filings or today’s
> opening statement even hint at this approach.

'cause there ain't one.

> Instead of a theory of defrauding state regulators, Mr. Bragg has adopted
> a weak theory of “election interference,” and Justice Juan Merchan
> described the case, in his summary of it during jury selection, as an
> allegation of falsifying business records “to conceal an agreement with
> others to unlawfully influence the 2016 election.”

Lol. You can accuse Democrats of that every single election.

> As a reality check, it is legal for a candidate to pay for a nondisclosure
> agreement. Hush money is unseemly, but it is legal. The election law
> scholar Richard Hasen rightly observed, “Calling it election interference
> actually cheapens the term and undermines the deadly serious charges in
> the real election interference cases.”

In other words, Bragg preferred bullshit charges.

> Editors’ Picks
>
> Alfred Molina on the Museum He Never Misses When He’s in New York
>
> 36 Hours in Munich
>
> The Best Fish Is Also the Most Local. Why Is It So Hard to Find?
> In Monday’s opening argument, the prosecutor Matthew Colangelo still
> evaded specifics about what was illegal about influencing an election, but
> then he claimed, “It was election fraud, pure and simple.” None of the
> relevant state or federal statutes refer to filing violations as fraud.
> Calling it “election fraud” is a legal and strategic mistake, exaggerating
> the case and setting up the jury with high expectations that the
> prosecutors cannot meet.
>
> The most accurate description of this criminal case is a federal campaign
> finance filing violation. Without a federal violation (which the state
> election statute is tethered to), Mr. Bragg cannot upgrade the misdemeanor
> counts into felonies. Moreover, it is unclear how this case would even
> fulfill the misdemeanor requirement of “intent to defraud” without the
> federal crime.
>
> In stretching jurisdiction and trying a federal crime in state court, the
> Manhattan D.A. is now pushing untested legal interpretations and
> applications. I see three red flags raising concerns about selective
> prosecution upon appeal.
>
> First, I could find no previous case of any state prosecutor relying on
> the Federal Election Campaign Act either as a direct crime or a predicate
> crime. Whether state prosecutors have avoided doing so as a matter of law,
> norms or lack of expertise, this novel attempt is a sign of overreach.
>
> Second, Mr. Trump’s lawyers argued that the New York statute requires that
> the predicate (underlying) crime must also be a New York crime, not a
> crime in another jurisdiction. The Manhattan D.A. responded with judicial
> precedents only about other criminal statutes, not the statute in this
> case. In the end, they could not cite a single judicial interpretation of
> this particular statute supporting their use of the statute (a plea deal
> and a single jury instruction do not count).
>
> Third, no New York precedent has allowed an interpretation of defrauding
> the general public. Legal experts have noted that such a broad “election
> interference” theory is unprecedented, and a conviction based on it may
> not survive a state appeal.
>
> Mr. Trump’s legal team also undercut itself for its decisions in the past
> year: His lawyers essentially put all of their eggs in the meritless
> basket of seeking to move the trial to federal court, instead of seeking a
> federal injunction to stop the trial entirely. If they had raised the
> issues of selective or vindictive prosecution and a mix of jurisdictional,
> pre-emption and constitutional claims, they could have delayed the trial
> past Election Day, even if they lost at each federal stage.
>
> Another reason a federal crime has wound up in state court is that
> President Biden’s Justice Department bent over backward not to reopen this
> valid case or appoint a special counsel. Mr. Trump has tried to blame Mr.
> Biden for this prosecution as the real “election interference.” The Biden
> administration’s extra restraint belies this allegation and deserves more
> credit.
>
> Eight years after the alleged crime itself, it is reasonable to ask if
> this is more about Manhattan politics than New York law. This case should
> serve as a cautionary tale about broader prosecutorial abuses in America —
> and promote bipartisan reforms of our partisan prosecutorial system.
>
> Nevertheless, prosecutors should have some latitude to develop their case
> during trial, and maybe they will be more careful and precise about the
> underlying crime, fraud and the jurisdictional questions. Mr. Trump has
> received sufficient notice of the charges, and he can raise his arguments
> on appeal. One important principle of “our Federalism,” in the Supreme
> Court’s terms, is abstention, that federal courts should generally allow
> state trials to proceed first and wait to hear challenges later.
>
> This case is still an embarrassment of prosecutorial ethics and apparent
> selective prosecution. Nevertheless, each side should have its day in
> court. If convicted, Mr. Trump can fight many other days — and perhaps win
> — in appellate courts. But if Monday’s opening is a preview of exaggerated
> allegations, imprecise legal theories and persistently unaddressed
> problems, the prosecutors might not win a conviction at all.
>
> Jed Handelsman Shugerman (@jedshug) is a law professor at Boston
> University.
>
> https://www.nytimes.com/2024/04/23/opinion/bragg-trump-trial.html