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Trump’s Strongest New York Defense Has Nothing To Do With Alvin Bragg Or Judge Merchan



Much of the commentary on the case has consisted of accusations against Alvin Bragg and Judge Merchan, but Trump has a strong defense on the merits — and his supporters should use it.

The first Trump trial is here, set to begin on Monday, with the allegation being that the former president violated New York law by having his company misreport payments to Stormy Daniels as “legal fees” rather than campaign expenditures.

Much of the commentary on the case — at least from those defending the former president — has consisted of accusations that Manhattan District Attorney (DA) Alvin Bragg is abusing his power on a political vendetta and that Judge Juan Merchan is a biased partisan. These accusations go to the heart of the rule of law and should not be made lightly. But equally important, they do not address whether Trump is actually guilty as charged, and that is the question soon to be before a jury. Better, then, to assume the good faith and professionalism of the public officials involved and explain why the DA’s case is wrong as a matter of law.

Misreporting business expenses is normally, at most, a misdemeanor. Bragg seeks to ratchet it up to a felony here by arguing that the misreporting was done to cover up a crime. That alleged crime is a violation of the Federal Election Campaign Act (FECA). The theory is that Trump’s payments to Daniels were campaign expenditures and thus needed to be publicly reported as such. By not reporting the expenditure, the theory goes, Trump prevented the public from knowing information that might have influenced their votes.

There is one big problem with this theory: The payments to Daniels were not campaign payments.

In Bragg’s defense, FECA does define a campaign expenditure as any payment, “for the purpose of influencing an election.” And there is certainly some evidence that Trump agreed to a nondisclosure deal with Daniels, at least in part, to keep her from telling her story during the closing days of the campaign — i.e., to “influence an election.”

But let’s think about this for a minute. Political candidates do things all the time that are “for the purpose of influencing an election,” but that, nonetheless, are not considered campaign expenditures. For example, a candidate cannot buy a new suit, get his teeth whitened, or pay for cosmetic surgery with campaign funds, even if he does so for the purpose of looking good on the campaign trail…


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