Many observers expect New York authorities to arrest former President Donald Trump this week. It's hard to imagine this being anything but a boon for Trump, who is running for president again.
Decisions about whether to bring criminal charges against a politician or authority figure certainly shouldn't hinge on whether it will help or hurt the person's political fortunes. But it's tough to see why Trump opponents would actually be cheering for this arrest.
As it stands, the Republican establishment and electorate both seem much more enamored with the thought of Florida Gov. Ron DeSantis as their party's future than with the continuance of a Trump-helmed GOP. But Trump's arrest could boost his claims of unfair persecution in a way that Trump supporters find sympathetic, compelling conservative officials to rally around him and delegitimizing future attempts to prosecute Trump for more serious offenses. And for what? The expected charges in this case—falsifying business records—will hardly lead to major punishment even if Trump is convicted.
And setting all politics aside, the charges are pretty weak.
The expected indictment stems from money that Trump's former lawyer, Michael Cohen, paid to porn star Stormy Daniels in 2016. The money was intended to keep her quiet about a past Daniels-Trump tryst.
In 2018, Cohen pleaded guilty to paying Daniels $130,000 at Trump's direction "for the principal purpose of influencing the election." This counted as an excessive contribution to the Trump presidential campaign. (Individual donors are permitted to give only relatively small amounts to a candidate each election cycle. There was a $2,700 limit in 2016, though its since been raised to $3,300.) Meanwhile, Trump admitted to reimbursing Cohen for this payment, using his own (not campaign) money. It was "a simple private transaction," said Trump, seeming to believe this made everything legal.
And indeed, experts have been divided over whether this payment counted as a criminal act, a campaign finance law violation, or nothing. As Reason's Jacob Sullum points out, "there is nothing inherently illegal about that payment." The theory underlying the case against Cohen was that he paid the money to influence the 2016 presidential election—but the money could just as well have been "to avoiding personal embarrassment for Trump or [to spare] Melania Trump's feelings."
The Federal Election Commission (FEC) investigated the matter as a possible violation of election law, but eventually decided not to pursue it.
Now, around seven years after Cohen paid Daniels, Manhattan District Attorney Alvin Bragg is pursuing criminal charges against Trump. This time, the case rests on whether Trump falsified business records and with what intent.
In court, Cohen said that Trump's company had "falsely accounted" for the reimbursement payments he received, calling them legal expenses and citing a retainer agreement that didn't exist. Cohen has also claimed that Trump knew about this deception.
"In New York, falsifying business records can amount to a crime, albeit a misdemeanor," notes The New York Times. "To elevate the crime to a felony charge, Mr. Bragg's prosecutors must show that Mr. Trump's 'intent to defraud' included an intent to commit or conceal a second crime. In this case, that second crime could be a violation of New York State election law."
But proving that Trump intentionally violated campaign finance rules is hard, considering Trump's statements that he thought the personal payment was just a private transaction. The lack of evidence that Trump "knowingly and willingly" flouted election law seems to be why a federal case was never pursued. (It's also unclear how New York election law would cover a violation of federal limits on campaign contributions.)
"Even if Mr. Trump is indicted, convicting him or sending him to prison will be challenging," comments the Times. "For one thing, Mr. Trump's lawyers are sure to attack Mr. Cohen's credibility by citing his criminal record. The case against the former president also likely hinges on an untested and therefore risky legal theory involving a complex interplay of laws. Combining the falsifying business records charge with a violation of state election law would be a novel legal theory for any criminal case, let alone one against the former president."
The idea that New York prosecutors will somehow succeed in showing what the FEC and other federal authorities couldn't is suspect. They're also running up against statute-of-limitations constraints. "In New York, misdemeanors have to be prosecuted within two years, and Class E felonies have to be prosecuted within five years," writes Sullum, who points out that the "legal expenses" payments to Cohen were made sometime in 2017. "Prosecutors would have to cite records that were falsified more recently, which maybe they can do, but to what end?"
Considering all of this, prosecuting Trump now would basically be an exercise in chest-thumping to score some political points, not a pure effort to see that justice is served. Which means that Trump's claims of a politics-based persecution could, in this instance, be right.
FREE MINDS
Ballot access battles. Republican lawmakers are maneuvering to stop abortion measures from appearing on ballots, reports Politico. Meanwhile, third parties in New York are fighting efforts to keep their candidates off the ballot. Specifically, they're asking the U.S. Supreme Court to intervene.
"After watching the pro-abortion rights side win all six ballot initiative fights related to abortion in 2022—including in conservative states such as Kansas and Kentucky—conservatives fear, and are mobilizing to avoid, a repeat," write Politico's Alice Miranda Ollstein and Megan Messerly. To this effect, "legislatures in Arkansas, Florida, Idaho, Missouri, North Dakota, Ohio and Oklahoma are debating bills this session that would hike the filing fees, raise the number of signatures required to get on the ballot, restrict who can collect signatures, mandate broader geographic distribution of signatures, and raise the vote threshold to pass an amendment from a majority to a supermajority."
In other ballot access news: "The Supreme Court this week officially docketed a petition for a writ of certiorari in the case Libertarian Party of New York, et al. v. New York State Board of Elections, et al.," reports Reason's Brian Doherty. This means that the Court will at least consider hearing the hearing case, which challenges ballot access restrictions in New York state:
A press release from the New York Libertarian Party (NYLP) sums up the tightening of ballot access requirements in its state that led to the lawsuit, in which it is joined by the Green Party of New York: "The threshold for a party to maintain recognized party status and ballot access was increased from 50,000 votes to 130,000 votes or 2% of the vote in the previous gubernatorial or presidential election, whichever is higher."
This led, the press release points out, to four parties that used to have ballot access in New York suddenly losing it: the Libertarian Party, the Green Party, the Independence Party, and the SAM Party. The NYLP press release points out that of the four, only the L.P., whose 2020 presidential candidate Jo Jorgensen got 60,000 votes in the state, would have kept the party's ballot access under the pre-2020 lower threshold.
The NYLP's gubernatorial candidate in 2022, Larry Sharpe, failed to make the ballot under the new rules after gathering 42,000 signatures when he needed 3,000 more to make it—meaning, as the NYLP's press release put it, that Sharpe "actually got more signatures than any other candidate, and yet he was denied a ballot spot due to the increased thresholds for ballot access." The signatures requirement prior to the challenged 2020 change was just 15,000. The signatures must be gathered in a 42-day window, making it even harder. Thanks to the new tougher signature requirement and threshold for staying a recognized party, New York saw only two candidates on the ballot for governor in 2022, for the first time since 1946.
You can find the petition to the Supreme Court—which comes from the Libertarian Party of New York, the Green Party of New York, and several individuals—here.
FREE MARKETS
Wyoming bans abortion pills. Wyoming Gov. Mark Gordon, a Republican, has signed a law explicitly banning abortion pills—a first for a U.S. state. "The pills are already banned in 13 states that have blanket bans on all forms of abortion, and 15 states already have limited access to abortion pills," reports the Associated Press. "Until now, however, no state had passed a law specifically prohibiting such pills."
QUICK HITS
• Twenty years ago today, then-President George W. Bush ordered airstrikes on Baghdad, thus beginning the Iraq War. "The United States spent an estimated $2 trillion in Iraq over the two decades, a price tag that barely begins to express the toll it has taken on both countries," writes Robert Draper at The New York Times. "Roughly 8,500 American military personnel and contractors lost their lives there, according to Brown University's Costs of War project, and as many as 300,000 others returned home suffering from post-traumatic stress disorders. Iraq lost nearly half a million civilians in the war and the subsequent eight-year American occupation."
• Two decades later, the war in Iraq is over—right?
• Bills in Hawaii, New York, and Vermont would decriminalize prostitution.
• California is making its own brand of insulin.
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