Thread by @jedshug

Blogpost:
"A Potential Problem for the Trump Indictment":
Has a NY court ever allowed a conviction from this statute, NYPL 175 requiring "intent to defraud," based on an internal business record, i.e., on which others are not likely to rely?
shugerblogcom.wordpress.com/2023/04/04/a-p…

2/ I haven't done a deep dive. But I have checked the posts and essays by vocal pro-indictment experts arguing that the case is clear.
National reporters have asked this question for over a week. So far, they haven't answered it. The indictment is here:
manhattanda.org/wp-content/upl…

3/ If there isn't a NYPL 175.10 precedent for a purely internal document, it may reflect that "intent to defraud" hasn't applied to internal documents, and that could be a big legal problem.
cc: @RDEliason @alegalnerd @AshaRangappa_ @EricColumbus @lawofruby @LauraAJarrett

4/ The felony NYPL 175.10 requires the cover-up of an underlying crime.
The indictment doesn't specify an underlying crime.
The "statement of facts" doesn't specify an underlying crime.
That's astonishing.

5/ Now @manhattanDA @AlvinBraggNYC is explaining in a press conference that these were campaign violations.
Astonishing.
If that's the theory, these crimes are likely preempted by federal law, i.e., NY state does not have jurisdiction over these cases.

6/ Bragg is asked why he didn't specify any underlying crime. He says "The law didn't require us to."
Terrible answer. This is an embarrassment to the rule of law.

7/ Six and a half years later, and @manhattanDA says he didn't explain why the misdemeanor 175.10 got bumped up to a 175.05 to a felony...
"because the law didn't require us to."
This is indefensible.

8/ In press conference, Bragg finally says "NY state election law" & refers to fed election law.

This case is preempted by the fed statute FECA, and NY state law confirms, no state jurisdiction. Either way, it's headed to fed court for a year:

9/ Teper v. Miller (11th Cir 1996):
"Cases in which preemption was not found invariably involve state laws that are more tangential to the regulation of federal elections."
The filing violation is directly related to the federal campaign.
Remember: The preemption clause is broad.

10/ I don't know what the right answer is on preemption.
But I don't decide these cases. This is headed to fed court for an injunction like Trump v. Vance.
And the Roberts Court, even setting aside political bias, is pro-preemption.
Plus NY state law confirms that preemption.

11/ And even if the Roberts Court is less pro-preemption now than it was with Breyer and Kennedy, the federalism concerns are addressed by NY state campaign law confirming federal jurisdiction for federal campaign violations & filing matters:

12/ I keep hearing it’s standard operating procedure not to specify underlying crimes.
That’s no reason to obscure & hide the case here.
It’s a reason to take a hard look at a bad practice that is morally wrong and should be scrutinized as a 5th/14th due process/6th A. violation.

13/ This thread and the blog post edited and pulled together as a guest essay in @nytimes:
"The Trump Indictment Is a Legal Embarrassment" nytimes.com/2023/04/05/opi…