Thread by @KingMakerFT

This is a THREAD on the sleight of hand, shell and pea game AG Bragg is playing in his case against Trump in NY. The object of this confidence game is to hide that Bragg is prosecuting a crime he has no authority over and that the court has no jurisdiction to hear.

To understand what’s going on, let’s start with the indictment. Trump is charged with violating NY Penal Law 175.10, providing, “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 first element in this statute is a violation of 175.05, falsifying business records with the intent to defraud. 175.10 turns that misdemeanor into a felony if there’s an intent to commit or conceal some other crime.

The indictment did not specify the other crime and Bragg refused to do so. He did file papers containing a small list of possible “other crimes,” but he refused to be pinned down. One crime on the list was NY Election Law 17-152, which states:

“Any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor.”

This crime requires the prosecutor to prove a conspiracy that is acted upon by one or more of the conspirators. But the indictment doesn’t charge a conspiracy, nor any acts in furtherance. Bragg argued proof of intent to conspire was all that 175.10 required.

In keeping with his hiding the pea, Bragg also articulated another possible crime Trump intended to commit: violations of federal campaign contribution laws (FEC violations) possibility helped serve two purposes: it could be the crime called for in 175.10,

… and it might also supply the “unlawful” element of Section 152. Most agreements to try to influence an election aren’t illegal. Section 152 criminalizes only conspiracies to do so by “illegal means.” Again the indictment doesn’t say what “illegal means” were used.

It’s been clear reading posts on the trial that the “other crime” element of section 175.10, and the “illegal means” element of section 152, are both supplied by alleged campaign finance crimes committed by conspirators Trump, Michael Cohen, and David Pecker.

We finally have some certainty, one might say. Bragg is essentially trying to prove a conspiracy to commit federal campaign law crimes by making false bookkeeping entries to conceal illegal campaign donations. Better late than never, one might say.

Here’s the problem. FEC violations that Bragg is trying to prove are federal crimes that preempt state law. That means to federal law supersedes all state laws on the same subject. Here’s how the federal regulations describe this preemption:

“Federal law supersedes State law concerning the—
….
(2) Disclosure of receipts and expenditures by Federal candidates and political committees; and
(3) Limitation on contributions and expenditures regarding Federal candidates and political committees.”

So what federal law violations does Bragg contend form the “other crime” and “unlawful” components of the NY laws he’s using? He says illegal campaign contributions and false disclosures of campaign expenses- both of which are preempted by federal law.

How did Bragg slip by the NY courts that the state laws he’s relying on are superseded? That’s where his shell and pea game comes into play. He never formally announced that at its heart, this case is all about proving campaign finance violations (federal crimes).

The issue of federal preemption was raised by Trump’s legal team when they removed the case to federal court. They argued that since the NY laws Bragg relied on were preempted, Trump could not be prosecuted under the superseded state laws.

Bragg’s response was to hide the pea. He pointed out that he hadn’t said yet what crimes the defendant intended to commit or conceal by the false book entries. Moreover, Bragg argued, Section 152 conspiracies aren’t limited to campaign finance violations, but include:

Acts that aren’t preempted by federal law, including “Prohibition of false registration, voting fraud, theft of ballots, and similar offenses.”The federal court cited this provision in holding the laws weren’t preempted.

But Bragg had no intent to prove a conspiracy to commit “false registration, voting fraud, theft of ballots, and similar offenses” - crimes left by the feds to the states. Bragg’s case is a campaign finance case, expressly preempted by federal law.

Up to now Bragg’s shell and pea game seems to have worked.

@honornc If prosecutors want to charge a criminal campaign donation, or a conspiracy to make or conceal one, it can only be brought under federal law and in federal court.