Why Trumpâs Conviction Canât Stand
It rests on an intent to violate a state law that is pre-empted by the Federal Election Campaign Act.
By David B. Rivkin Jr. and Elizabeth Price Foley
Wall Street Journal
Donald Trump runs no risk of going to prison in the middle of his campaign, thanks to Judge Juan Merchanâs decision Friday to postpone sentencing until Nov. 26. The delay gives his lawyers more time to prepare an appeal. Fortunately for Mr. Trump, his trial was overwhelmingly flawed, and a well-constructed appeal would ensure its ultimate reversal.
A central problem for the prosecution and Judge Merchan lies in Article VI of the U.S. Constitution, which makes federal law the âsupreme law of the land.â That pre-empts state law when it conflicts with federal law, including by asserting jurisdiction over areas in which the federal government has exclusive authority.
Mr. Trumpâs conviction violates this principle because it hinges on alleged violations of state election law governing campaign spending and contributions. The Federal Election Campaign Act pre-empts these laws as applied to federal campaigns. If it didnât, there would be chaos. Partisan state and local prosecutors could interfere in federal elections by entangling candidates in litigation, devouring precious time and resources.
That hasnât happened except in the Trump case, because the Justice Department has always guarded its exclusive jurisdiction even when states have pushed back, as has happened in recent decades over immigration enforcement.
The normal approach would have been for the Justice Department to inform District Attorney Alvin Bragg, who was contemplating charges against Mr. Trump, of the FECA pre-emption issue. If Mr. Bragg didnât follow the departmentâs guidance, it would have intervened at the start of the case to have it dismissed. Instead the department allowed a state prosecutor to interfere with the electoral prospects of the chief political rival of President Biden, the attorney generalâs boss.
Mr. Trump was indicted under New Yorkâs law prohibiting falsification of business records, which is a felony only if the accused intended âto commit another crimeâ via the false record. Judge Merchan instructed the jury that the other crime was Section 17-152 of New York election law, which makes it a misdemeanor to âconspire to promote or prevent the election of any person to a public office by unlawful means.â Prosecutors alleged that Mr. Trump violated this law by conspiring with his lawyer, Michael Cohen, and Trump-related businesses to âpromoteâ his presidential election by coding hush-money payments as âlegal expensesâ when they should have been disclosed publicly as campaign expenses or contributionsâmatters that are governed by FECA.
FECA declares that its provisions âsupersede and preempt any provision of state law with respect to election to Federal office.â The 1974 congressional conference committee report accompanying enactment of FECAâs pre-emption language states: âIt is clear that the Federal law occupies the field with respect to reporting and disclosure of political contributions and expenditures by Federal candidates.â Federal Election Commission regulations likewise declare that FECA âsupersedes State lawâ concerning the âdisclosure of receipts and expenditures by Federal candidatesâ and âlimitation on contributions and expenditures regarding Federal candidates.â
The New York State Board of Elections agreed in a 2018 formal opinion that issues relating to disclosure of federal campaign contributions and expenditures are pre-empted because âCongress expressly articulated âfield preemptionâ of federal law over state law in this areaâ to avoid federal candidatesâ âfacing a patchwork of state and local filing requirements.â
In using New Yorkâs election law to brand Mr. Trump a felon based on his actions with respect to a federal election, Mr. Bragg subverts FECAâs goal of providing predictable, uniform national rules regarding disclosure of federal campaign contributions and expenses, including penalties for noncompliance. Congress made its goals of uniformity and predictability clear not only in FECAâs sweeping pre-emption language but also in its grant of exclusive enforcement authority to the FEC for civil penalties and the Justice Department for criminal penalties. Both the FEC and Justice Department conducted yearslong investigations to ascertain whether Mr. Trumpâs hush-money payments violated FECA, and both declined to seek any penalties.
Prior to Mr. Trumpâs New York prosecution, it would have been unthinkable for a local or state prosecutor to prosecute a federal candidate predicated on whether or how his campaign reportedâor failed to reportâcontributions or expenditures. In 2019 the FEC investigated whether Hillary Clintonâs 2016 presidential campaign failed to disclose millions in contributions from an outside political action committee. The agency deadlocked, and no penalties were imposed. In 2022 the FEC levied $113,000 in civil penalties against Mrs. Clintonâs campaign for violating FECA because it improperly coded as âlegal services,â rather than campaign expenditures, money paid to Christopher Steele for production of the âdossierâ that fueled the Russia-collusion hoax. In neither instance did any state or local prosecutor indict Mrs. Clinton under state election law based on failure to disclose these contributions or expenditures properly. If New Yorkâs Trump precedent stands, Mrs. Clinton could still be vulnerable to prosecution, depending on various statesâ statutes of limitation and the Justice Departmentâs potential involvement.
Mr. Braggâs prosecution of Mr. Trump is plagued by many reversible legal errors, of which the failure to accord pre-emptive force to FECA is the strongest grounds for its reversal on appeal. The prosecutorâs interference in the 2024 presidential election process has created legal and political problems. The Justice Departmentâs failure to intervene before the trial is a dereliction of duty.
The department aggressively prosecuted Mr. Cohen based on the same hush-money payments, so it was well aware that New Yorkâs prosecution invaded its exclusive FECA jurisdiction. This is another stark example of the Biden administrationâs incompetenceâor, worse, the distortion of justice through a partisan lens. It is left to the appellate courts, and ultimately the Supreme Court, to clean up the mess Mr. Bragg and the Justice Department have made.
Mr. Rivkin served at the Justice Department and the White House Counselâs Office during the Reagan and George H.W. Bush Administrations. Ms. Foley is a professor of constitutional law at Florida International University College of Law. Both practice appellate and constitutional law in Washington.
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