WHEN THE JUDGE GAGS A KEY WITNESS FOR TRUMP’S DEFENSE. The false bookkeeping trial of former President Donald Trump is now in its fourth week. This newsletter has pointed out lots of times, most recently last Friday, that while we know that Manhattan District Attorney Alvin Bragg has charged Trump with falsifying bookkeeping records of a nondisclosure payment in order to commit or conceal another crime, Bragg still hasn’t revealed what that other crime is. It’s really the key to the whole case. Without the other crime, there would be no charges against Trump in this matter. The fact that we — and that includes the defendant — still don’t know what the other crime is is one of the great injustices of a felony prosecution that never should have happened.
But now we’re getting an idea of where prosecutors are going. Perhaps the leading theory — they’re all just theories — of the other crime is that in addition to violating New York’s misdemeanor law against falsifying bookkeeping records, Trump also violated another New York misdemeanor law, 17-152, which prohibits conspiring “to promote or prevent the election of any person to a public office by unlawful means.” Put those two misdemeanors together, and bingo! Trump stands accused of 34 felony counts, which could put him in prison for a maximum of 136 years.
Obviously 17-152 depends on specifying what “unlawful means” the defendant used to promote or prevent the election of any person. Otherwise, it’s just campaigning. So at some point prosecutors will have to reveal what those “unlawful means” were. But here’s something that nonlawyers should know: To win a felony conviction, Bragg does not have to prove Trump committed the other crime, whatever it might be. “The statute does not require a defendant to actually be convicted of the ‘other crime,’ but merely that he intend to commit another crime,” wrote the judge in the case, Juan Merchan, on Feb. 15. “The focus here is on the element of intent.”
The prosecution has four theories for the other crime Trump might have committed, or might not have committed but intended to commit, or might not have committed but intended to conceal. The leading theory is that Trump “violated federal election laws” because the nondisclosure agreement payments to Stormy Daniels and Karen McDougal “violated FECA’s restrictions on corporate and individual contributions.” “FECA,” a pretty awful acronym, stands for the 1971 Federal Election Campaign Act, which established the Federal Election Commission and is the main enforcer of federal election law, such as limits on campaign contributions.
The theory is that if Michael Cohen paid Daniels $130,000 in the fall of 2016 to keep her from going public with her story that she and Trump had a sexual encounter and then Trump repaid Cohen in 2017, then that was a campaign contribution and should have been reported to the FEC. The payments were made “for the purpose of influencing any election,” the theory continues, and the Trump campaign should have filed a document with the FEC listing among its campaign contributions and expenditures that it received and spent $130,000 for “hush money.”
If you think that sounds a little odd for an FEC disclosure, you’re right. That’s where one of the critical witnesses to be called by the Trump defense comes in. Bradley Smith is a former chairman of the FEC, and on many occasions, including long before Trump, he has argued that there are all sorts of things a candidate can spend money on that are not legally classifiable as “for the purpose of influencing any election.” (I did my first article on Smith for National Review back in 2005.) This is from an op-ed Smith wrote for the Washington Post in 2018:
Hush money payments to mistresses are not really campaign expenditures. It is true that “contribution” and “expenditure” are defined in the Federal Election Campaign Act as anything “for the purpose of influencing any election,” and it may have been intended and hoped that paying hush money would serve that end. The problem is that almost anything a candidate does can be interpreted as intended to “influence an election,” from buying a good watch to make sure he gets to places on time, to getting a massage so that he feels fit for the campaign trail, to buying a new suit so that he looks good on a debate stage. Yet having campaign donors pay for personal luxuries — such as expensive watches, massages, and Brooks Brothers suits — seems more like bribery than funding campaign speech. That’s why another part of the statute defines “personal use” as any expenditure “used to fulfill any commitment, obligation, or expense of a person that would exist irrespective of the candidate’s election campaign.” These may not be paid with campaign funds, even though the candidate might benefit from the expenditure. Not every expense that might benefit a candidate is an obligation that exists solely because the person is a candidate.
Smith, having headed the FEC, has many examples from the commission’s enforcement of federal election law that illustrate his point. He knows what he is talking about, and it seems clear that his expert opinion is that paying off Daniels, no matter what one might think of it, is not a campaign expenditure or donation that FECA requires a candidate to disclose.
The Trump defense plans to call Smith as a witness. Not because he has any personal knowledge of the Trump transaction but because he understands, and has enforced, the campaign law that Bragg’s prosecutors appear to be planning to use against Trump. But Merchan has forbidden Smith from testifying about most of the issues involved in the case.
Among the things Smith might be able to testify about is the novelty of the current Trump prosecution. Merchan will not allow it. “Defendant seeks to elicit from Smith, among other things, that at the time Cohen paid Daniels, there had never been a case in which anyone had been convicted of a federal campaign finance law violation for the making of ‘hush money payments,'” Merchan wrote. Smith might also be asked about “the facts surrounding the trial of former U.S. Senator and presidential candidate John Edwards, his subsequent acquittal, and that the case was heavily criticized.” Merchan will not allow it.
Other things Smith might be able to testify about are the FEC’s decision to dismiss a complaint against Trump for this very matter and the Justice Department’s decision not to prosecute Trump for the same set of actions. But Merchan said Smith cannot say a word about those matters. “That the FEC dismissed the complaint against defendant and the DOJ decided against prosecuting defendant for potential FECA violations are probative of nothing,” Merchan wrote on March 18. “These matters are therefore irrelevant and defendant is precluded from eliciting testimony or introducing evidence or both.”
So Smith can talk about none of that. None of it. The only topics Merchan will allow Smith to “testify generally” on are the “general background as to what the Federal Campaign Commission is, background as to who makes up the FEC, what the FEC’s function is, what laws, if any, the FEC is responsible for enforcing, and general definitions and terms that relate directly to this case, such as for example ‘campaign contribution,'” Merchan wrote.
Another way of saying it is that Trump isn’t the only one under a gag order in this trial. If prosecutors decide to pursue an alleged campaign finance violation as the essential “other crime” in this case — and remember, there is no prosecution without the “other crime” — then Smith would be one of the most knowledgeable and experienced witnesses who could be called to testify. Under Merchan’s restrictions, the jury will get to hear very little of what Smith has to say.
