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Moreover, the prosecutor’s case against Trump is strengthened by Cohen’s guilty plea. In his plea, Cohen confessed to violating federal campaign finance laws in connection to the Daniels and McDougal payoff schemes. Under federal campaign finance law, a key question is whether the Daniels payments were made to influence the election. Cohen, during his guilty plea in federal court, specifically stated that he “participated in this conduct” for “the principal purpose of influencing the election.”
Bragg also presented evidence that Trump considered delaying the payments as long as he could; if he could delay until after the election, he suggested he wouldn’t make the payoffs at all, “because at that point it would not matter if the story became public,” according to the statement of facts accompanying the indictment. This strongly implies that one of the Trump team’s past defenses — that he made the payments not to help him win the election but to prevent embarrassment to his wife and family — is highly implausible.
What is the weakest part of the district attorney’s case against Trump?
The law. First, there is a very real question as to whether the relevant New York state election statutes are pre-empted by federal law. Under pre-emption doctrine, federal law essentially trumps state law when federal law conflicts with state law or when federal law occupies the field. When the federal government comprehensively regulates an area of law, courts will often apply only federal law and ignore state or local statutes. Thus, the state election statutes that constitute the other crimes that Bragg relies on may not apply to Trump.
Second, the relevant federal election law is unsettled, and Cohen’s guilty plea does not provide prosecutors with a true legal precedent to claim that the matter is decided. In 2018 a former member of the Federal Election Commission, Bradley A. Smith (a Republican), made the compelling argument, in a National Review article titled “Michael Cohen Pled Guilty to Something That Is Not a Crime,” that the Supreme Court would not be sympathetic to the claim that a hush-money payment was a campaign contribution for purposes of federal criminal law. “When faced with the vague, sweepingly broad ‘for the purpose of influencing any election’ language,” Smith argued, “the Supreme Court has consistently restricted its reach to brightly defined rules.”
I disagreed with Smith at the time, arguing that the relevant law did encompass Cohen’s crimes, but I freely acknowledge that there is no binding legal precedent that supported either Smith’s or my arguments. Smith could well be right, and I could well be wrong. Our arguments depended more on legal predictions than controlling precedent. Indeed, the uncertain scope of the underlying federal election law claims is one factor that renders Bragg’s theory of the case largely untested.
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