The Manhattan DA offered four potential object offenses in response to President Trump’s request for a Bill of Particulars. Keep in mind that the Manhattan DA’s initial indictment in April 2023 was completely silent about what alleged crimes were the basis for upgrading the misdemeanor business filings into 34 felonies.
Trump’s lawyers asked for a standard practice in New York, to receive a bill of particulars to clarify the case in compliance with the Sixth Amendment’s right for a defendant “to be informed of the natureand cause of the accusation.”
The judge allowed the Manhattan D.A. to refuse to give a bill of particulars- a surprising decision, especially in a case of such significance and with such ambiguity and complexity. Instead, Judge Merchan counted the D.A.’s reply, providing only a vague outline of the case, as sufficient information. (Side note: How often do NY judges allow such unclear indictments without bills of particulars? Are NY judges regularly letting prosecutors under-inform defendants?)
This blogpost tries to explain that, even though the prosecutor has cited four possible underlying crimes, the case turns on proving the violation of a federal statute, the Federal Election Campaign Act.
Let’s start with the New York misdemeanor, before the allegation of another crime would upgrade it to a felony:
§ 175.05 Falsifying business records in the second degree.
A person is guilty of falsifying business records in the second degree when, with intent to defraud, he:
1. Makes or causes a false entry in the business records of an enterprise; or
2. Alters, erases, obliterates, deletes, removes or destroys a true entry in the business records of an enterprise; or
3. Omits to make a true entry in the business records of an enterprise in violation of a duty to do so which he knows to be imposed upon him by law or by the nature of his position; or
4. Prevents the making of a true entry or causes the omission thereof
in the business records of an enterprise.
Falsifying business records in the second degree is a class A misdemeanor.
If the false record with “intent to defraud” also included intent to commit or conceal another crime, then it becomes a felony:
§ 175.10 Falsifying business records in the first degree
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.
Falsifying business records in the first degree is a class E felony.
The bottom line is that the only crime that could count for the concealed “other crime” in this case is a violation of the Federal Election Campaign Act, a complex federal crime. This state prosecution is really for prosecution for a federal crime shoehorned into a state business filing statute. Without the federal crime, there is no basis for the felony, and there is also no apparent basis even for the misdemeanor — because without the federal crime, what is the “intent to defraud”?
Here are the four alleged crimes that would be the basis for upgrading the misdemeanor to a felony:
- the Federal Election Campaign Act (“FECA”), 52 U.S.C. § 30101 et seq.;
- New York Election Law § 17-152;
- and 4. New York Tax Law §§ 1801(a)(3) and 1802.
Let’s start with the two tax statutes. Notice that Bragg has dropped any references to taxes and instead calls it an “election interference” case. Judge Merchan has adopted the same framing as “unlawful election influence.” No independent tax charge has ever been filed. For over a year, tax experts have generally explained that Trump and Cohen likely overpaid their taxes precisely because they were covering up a business expense – and by treating it as “income” for service, rather than a business expense, it would have been taxed at a higher rate. No one thinks an overpayment of taxes constitutes tax fraud. Bragg has never shown evidence of underpayment. The question is why Trump and Cohen classified the exchange as income and then overpaid the taxes: It was to hide a federal election crime.
As for the state election law claim, it probably does not count at all for any federal election, and even if it did, it would rely on the federal crime and piggyback on it. Here’s the statute:
ELN § 17-152. Conspiracy to promote or prevent election
“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.”
One big problem is the definitional section for this part of the NY Code for “public office.” Article 17 (Election Law) 17-100 defines “public officer” as holding state or local office, not federal office. I can’t find any court applying this statute to federal office.
Second, even if this statute applies to a federal campaign, the state election statute is still tethered to the federal violation as the only plausible basis for the “unlawful means” and conspiracy.
So this is state prosecution for a violation of the Federal Election Campaign Act. There are a series of problems with a state prosecutor trying this crime:
The Federal Election Campaign Act has a broad pre-emption clause: “The provisions of this act, and of rules prescribed under this act, supersede and pre-empt any provision of state law with respect to election to federal office.” New York State law confirms state “filing requirements and the expenditure, contribution and receipt limits” under state law “shall not apply” if there is a federal requirement and a federal filing (in other words, they don’t apply to federal elections).
This case also raises jurisdictional questions, as election law expert Rick Pildes has noted. Under 18 USC 3231, “The district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States.” The Manhattan DA is essentially trying to prove an intent to violate a federal crime, which seems close enough to giving New York trial court “original jurisdiction” over a FECA prosecution. The Manhattan DA must, in substance, prove a conspiracy or intent to violate a federal law. Federal prosecutors have never attempted to prosecute this case, let alone proven it. The Manhattan DA is alleging this federal crime for the first time.
This kind of prosecution has been allowed in state court when the underlying federal crime has already been established by a federal conviction. Perhaps it has been tolerated when the alleged underlying federal crime is simple, like possession of a gun with intent to commit a federal crime like a drug sale — though it would still seem problematic.
But in this case, reaching into federal jurisdiction is far more problematic. The alleged underlying crime is far more complicated, with gray areas relating to valid business expenses and a higher threshold for mens rea: actual knowledge of the law and specific intent to violate it. Michael Cohen’s guilty plea (for several unrelated crimes, and this crime on top) does not establish Trump’s guilt, because a lawyer is expected to know the law. It is much more difficult to prove a layperson had such specific knowledge and intent. There is good reason that the statute has such an explicit preemption clause against state conflicts, and there is good reason for the FEC to have control over which violations deserve civil process and fines vs. criminal prosecution. And notably, the DOJ under Biden decided not to reopen the case or assign a special counsel. The Biden administration deserves more credit for such wise discretion.
This case is an interjurisdictional use of 175.10 that appears to be an untested theory. Trump’s lawyers raised this questionable use across jurisdictions, and the Manhattan DA could cite no New York precedent reviewing this question and ruling in favor of this use.
Moreover, I can find no reported case from any state in which a state prosecutor has relied on FECA as a direct or indirect crime. This seems to be an unprecedented use of FECA in a state prosecution. Whether this reflects a formal pre-emption and jurisdiction problem or prosecutorial norms, it is a sign of overreach. Campaign finance disclosure errors or violations are common. President Barack Obama’s 2008 campaign missed filing deadlines for nearly 1,300 contributions totaling more than $1.8 million, and the FEC fined the campaign $375,000. Of course, Obama’s misfilings were not related to such a flagrant violation or such a scandalous backstory. Nevertheless, these filing cases are complicated and highly discretionary. There is a good reason for federal officials to enforce these rules, instead of local elected partisan prosecutors. And in this case, the DOJ over seven years declined to bring this case — after AG Barr was long gone, and to the credit of the Biden administration’s caution.
Furthermore, there seems to be no state precedent with such a broad interpretion of “intent to defraud” under 175.05 or 175.10, with the target of the fraud as the general public or “election fraud.” The Manhattan DA is correct that New York courts have allowed “intent to defraud” for non-pecuniary purposes, and they do not require proof that a defendant “acted with intent to defraud a particular person or business entity.” But there is no precedent supporting such a broad “election interference” theory, and a conviction may not survive a state appeal.
So how did a federal case wind up in state court, despite double preemption and jurisdictional questions? Again, the Biden DOJ declined to bring the federal case, and their restraint contradicts Trump’s rhetoric that Biden is the one engaging in election interference. But another reason is that Trump’s lawyers failed to follow the earlier game plan of going to federal court for injunctions and at least long delays. They put all of their eggs in the meritless basket of seeking to remove the trial to federal court, instead of seeking a federal injunction to stop the trial entirely. In the confused context of the removal case, Trump raised and lost the preemption argument, then declined to appeal, and inexplicably failed to raise this or other federal claims to enjoin the case.
Trump can’t win a case of a 6th Amendment claim of ineffective assistance of counsel for these errors. The claims are not strong enough, and the Sixth Amendment is not triggered by likely delays, but by clearer substantive merits. Still, there seems to be lots of ineffective and embarrassing lawyering on both sides.