Here's the text of the law:
>>>§ 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.<<<
The statute of limitations on second degree falsifying (a misdemeanor) has run so the prosecutor will need to show falsifying and "his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof."
. . .
There are two prime candidates for the second crime: 1) violation of state election laws, or 2) violation of federal election laws.
Simplifying for purposes of discussion, the arguments against these two possibilities are: 1) he was running for federal office which is not governed by state election laws, and 2) a state criminal action cannot be based on a violation of federal law because a state court has no power to decide a federal legal question.
I'm not saying these arguments will necessarily be successful, but the outcome is not clear.
. . .
In other words, Bragg will probably need to show that the falsification was done with the intent to violate a specific state election law, and that this specific state election law is not preempted by federal law.
Wow, now that I've read the court order in more detail, I have to say it's a pretty serious *ss kicking for Trump on a couple issues.
Here's what the court said about Trump's first defense:
>>>Trump first raises an immunity defense. . . . he argues that he is immune from prosecution
under the Supremacy Clause because his conduct "w[as] taken solely because he was President
of the United States" and, "[a]s such, [his] decision to retain Michael Cohen to act as his personal
lawyer arose out of his duties as President." . . . Reimbursing Cohen for advancing hush money
to Stephanie Clifford cannot be considered the performance of a constitutional duty. Falsifying
business records to hide such reimbursement, and to transform the reimbursement into a business
expense for Trump and income to Cohen, likewise does not relate to a presidential duty.
Trump
is not immune from the People's prosecution in New York Supreme Court.<<<
The federal judge also rejected Trump's preemption defense. From the court order:
>>>Trump . . . argues that the provision of NYPL § 175.10 that raises falsification of business records to a
felony if there is an intent to commit, aid, or conceal another crime is preempted if the crime involves federal
elections. But violations of PECA and NYEL § 17-152 are not elements of the crime charged.
The only elements are the falsification of business records, an intent to defraud, and an intent to
commit or conceal another crime. The People need not establish that Trump or any other person
actually violated NYEL § 17-152 or PECA. . . . the only "relevant actus reus . . . is the creation of a false entry in a
business record," which is "elevated to a first-degree offense on the basis of an enhanced intent
requirement .... ". . .
Trump can be convicted of a felony even if he did not commit any crime
beyond the falsification, so long as he intended to do so or to conceal such a crime.<<< (internal citations omitted)
That last sentence is a doozy.
My sense is that both federal and state court judges are getting fed up with Trump's antics.
The federal court order is in the context of deciding a jurisdictional issue (i.e. it's not a final determination of the substantive law), and it is not binding precedent on the NY state court. Nevertheless, I'd be shocked if a state court were to go the other way on this issue.
If he's convicted in NY state court for violation of state criminal laws, no President can pardon him.
Trump will still have defenses that can be raised at trial, but his odds of being convicted just went up significantly (obviously, that's just my opinion, no one has to agree with me)
Time for more crying by the orange man-baby.
