I continue to demonstrate an exceptional sense of timing, by using the date of the first Republican primary debate to publish another giant legal piece on a Trump indictment . . . the Bragg indictment. What am I doing writing about this again? Well, I finally got around to reading the federal decision rejecting Trump’s efforts to permanently remove the case to federal court — and I found, to my delight, that the decision backs up my previous criticism of two key legal arguments advanced by critics of the indictment.
This is another marathon, with 5200 words of free content and 4100 words of paid content. I’ll warn you: it’s pretty heavy on the legal wonkery. The portion available to all addresses the argument that federal law preempts the crimes Bragg is charging.
The judge gives specific examples of state laws that have been found not to be preempted by FECA. In one case, the state of New York was allowed to bring an action against the directors of a corporation for using the corporation’s money to contribute to federal PACs. The court held that, even though there are laws about donations to federal PACs, New York nevertheless had an interest in making sure that the directors of a corporation “exercise sound judgment in the expenditure of corporate funds.”
In another case, state Attorneys General investigated a PAC for violating state consumer protection laws. The PAC used a combination of pre-checked boxes and fine print that tricked potential donors into making recurring donations that they did not intend to make. (This PAC is the same WinRed racket that peppers me with several texts a day. Probably you get the same texts. The death penalty is too weak a punishment for these people. But I digress.) The PAC sought to enjoin these state AG investigations, arguing that they were subject to FECA only, and that the state AGs had no business trying to investigate their relentless and dishonest scamming. No dice, said the Eighth Circuit. Because FECA preemption is narrowly construed, states can investigate violations of consumer protection laws even though a PAC is soliciting money only for federal elections. A different result would immunize WinRed “from many generally applicable state laws.”
A key factor in these decisions is the fact that the state statutes in question are laws of general applicability and not ones that specifically purport to regulate federal campaign finance issues. The judge cites a long line of cases that find no preemption when the state laws are “tangential to the regulation of federal elections.” These cases stand in contrast to cases involving state statutes that “regulate conduct specifically covered by FECA.” It is this latter category of cases in which preemption doctrine kicks in.
The portion for paid subscribers is probably the more fun of the two, and addresses the argument that Bragg has to show that Trump committed a federal campaign violation. This passage appears, although it serves as something of a teaser for the actual analysis:
When the judge says that “[t]he People need not establish that Trump or any other person actually violated NYEL § 17-152 or FECA,” there are two aspects to this statement: one simple, and one mindboggling.
The first aspect of the judge’s statement—a concept which I have argued before—is very straightforward and easy to understand: the prosecution doesn’t have to show that Trump himself committed a campaign finance violation (or any other crime) himself.
The mindboggling aspect is the claim is the claim that the prosecution doesn’t have to show anyone else committed that other crime either.