Isuspect there may also be a First Amendment issue with the idea that the "other" crime that the (mis?)characterization of the payments was designed to further was (mis?)leading the public about whether Trump was involved with Daniels.
I think that notion is at the root of the theory that the "other" crime was committing some kind of fraud, either federal or State, on the electorate. To make this clearer, let's imagine that Trump was charged directly with obtaining the Presidency by fraud by concealing a relationship with Daniels - which he would otherwise be perfectly entitled to do. Wouldn't that prosecution get laughed out of court? Otherwise anytime a politician lied about something to win an election he would be commiting the crime of fraud on the public. Clinton saying but on TV that he never had sex with Monica Lewinski. Biden saying when he took office inflation was 22%.
The problem is that the courts getting into the business of policing this stuff would quickly end up policing core political speech. And I am pretty sure the US Supreme Court has said as much. Probably even the New York Court of Appeal would have a First Amendment problem with saying New York law reaches such statements - and therefore at a minimum construe the law not to.
This strikes me as another problem with not specifying what the "other crime" was - but on appeal I think it becomes the prosecution 's problem. Because if I am right that if this version of the "other" crime would be unconstitutional, and if at least some jurors may reasonably have thought this was the "other" crime the (mis?)classification of the business records was intended to conceal I would think that ALSO requires reversal.
Hmm I don't seem to be able to edit my own comment. So let me 1) apologize for the typo - obviously this comment should start out "I suspect" - and 2) note that Biden has been saying that inflation was 9% when he took office, not 22%. I must have compounded somehow in my head. That said that is a verifiably false claim about the past that he has been repeating despite having to know that it is false, and yet it seems as if it would be outlandish to charge him for trying to obtain election by fraud on account of it.
Also just to put a point on how this problem interacts with the failure to specify the "other crime" problem: because both the prosecution and the judge took the position that the jury did not have to agree on which crime it was that Trump was trying to conceal by falsifying the records, it seems to me that if the First Amendment makes it unconstitutional to prosecute Trump for one of the crimes that the prosecution proposed as options to the jury, the whole conviction falls. This might not have been the case if the jury was told they had to agree on each crime before it could serve as a predicate for the records violation. In that case, if the jury had agreed he was trying to conceal two different crimes, one of which was constitutional and one of which turned out not to be, the conviction would be insulated from the constitutional problem with one of them. This is in addition to the other potential problems created by not specifying the crime.
Isuspect there may also be a First Amendment issue with the idea that the "other" crime that the (mis?)characterization of the payments was designed to further was (mis?)leading the public about whether Trump was involved with Daniels.
I think that notion is at the root of the theory that the "other" crime was committing some kind of fraud, either federal or State, on the electorate. To make this clearer, let's imagine that Trump was charged directly with obtaining the Presidency by fraud by concealing a relationship with Daniels - which he would otherwise be perfectly entitled to do. Wouldn't that prosecution get laughed out of court? Otherwise anytime a politician lied about something to win an election he would be commiting the crime of fraud on the public. Clinton saying but on TV that he never had sex with Monica Lewinski. Biden saying when he took office inflation was 22%.
The problem is that the courts getting into the business of policing this stuff would quickly end up policing core political speech. And I am pretty sure the US Supreme Court has said as much. Probably even the New York Court of Appeal would have a First Amendment problem with saying New York law reaches such statements - and therefore at a minimum construe the law not to.
This strikes me as another problem with not specifying what the "other crime" was - but on appeal I think it becomes the prosecution 's problem. Because if I am right that if this version of the "other" crime would be unconstitutional, and if at least some jurors may reasonably have thought this was the "other" crime the (mis?)classification of the business records was intended to conceal I would think that ALSO requires reversal.
Hmm I don't seem to be able to edit my own comment. So let me 1) apologize for the typo - obviously this comment should start out "I suspect" - and 2) note that Biden has been saying that inflation was 9% when he took office, not 22%. I must have compounded somehow in my head. That said that is a verifiably false claim about the past that he has been repeating despite having to know that it is false, and yet it seems as if it would be outlandish to charge him for trying to obtain election by fraud on account of it.
Also just to put a point on how this problem interacts with the failure to specify the "other crime" problem: because both the prosecution and the judge took the position that the jury did not have to agree on which crime it was that Trump was trying to conceal by falsifying the records, it seems to me that if the First Amendment makes it unconstitutional to prosecute Trump for one of the crimes that the prosecution proposed as options to the jury, the whole conviction falls. This might not have been the case if the jury was told they had to agree on each crime before it could serve as a predicate for the records violation. In that case, if the jury had agreed he was trying to conceal two different crimes, one of which was constitutional and one of which turned out not to be, the conviction would be insulated from the constitutional problem with one of them. This is in addition to the other potential problems created by not specifying the crime.