My latest Constitutional Vanguard newsletter makes the announcement:
The good folks at The Dispatch have published my 4,400 word analysis of the Trump indictment. I’m very happy with the way it came out. The piece is free for all to read; you need only set up a free Dispatch account, which is accomplished in seconds.
In the piece, I go through the charges and the possible evidence Bragg might present in support of those charges. I also offer a rebuttal to some of the specific arguments raised by critics of the indictment.
I am somewhat more sanguine about Alvin Bragg’s prospects for this case than most. You might have noticed that there are many, many critics of the indictment, from both the right and the left. I’m not one of them. (Interestingly, New York state practitioners tend to view the indictment in a more positive light.) As such, my piece offers something of a contrarian viewpoint. I don’t say the indictment is strong, necessarily—just that it might be.
In the extended entry I have several additional observations, including some that were cut from the piece for reasons of length and cohesion, and others that I have thought about since it was published. Here is one of the latter variety:
I also think it’s worth addressing another deep-dive issue that some critics have argued: the indictment charges Trump with falsifying records in 2017. How can Trump have been intending to influence the election held in November 2016 by falsifying records in 2017?
The answer is: he wasn’t, and nobody is saying he was. Cohen is the one who had to have the intent to influence the election, which is something he admitted under oath in his allocution. He had to make the payment in coordination with Trump, but from the jury instructions in the John Edwards case quoted above, the relevant intent appears to be that of the donor. Under the New York statute, Trump’s intent 1) must include an intent “to defraud” (which is a very broad concept under New York state law), and 2) must also “include” an intent to conceal Cohen’s crime. It’s not really important under New York state law whether Trump had mixed motives for trying to conceal Cohen’s crime. As far as I can tell, it doesn’t really matter why Trump intended to conceal Cohen’s crime. Maybe it was to save his own marriage, to help out his loyal lawyer, and/or to save himself personal embarrassment. But under New York state law, if Cohen violated federal campaign finance law by paying off Daniels to influence the campaign, and Trump falsified documents to cover up that crime for any reason, I think that’s enough under the state statute.