Contrary to the conventional anti-wisdom, I think it's pretty clear from the letter of the law that Alvin Bragg's legal theory isn't all that shaky.
There's been a lot of talk about a putative SCOTUS appeal eventually invoking "lenity" — defaulting in favor of a defendant when the law is unclear — but that all depends on the actual text being unclear. It's not.
The only real question is whether state statutes can point to federal crimes, even if those crimes haven't been charged. We know that Michael Cohen is already guilty of federal felonies related to the same scheme. The only reason Trump wasn't charged by DOJ in the same case is because he was president, and the DOJ was merely defending a shaky legal theory of its own in that regard. Regardless, the statute doesn’t say that Trump must also be the one who committed the federal crime, it just says that Trump’s crime of fraud at the state level must have been in service of the federal crime.
But even without those facts, if the NY statute doesn’t apply to federal crimes, then we end up with a hole in the law.
Imagine that instead of Donald Trump, the state of NY was charging Cohen with roughly the same set of 34 counts of business fraud for his own role. Cohen’s already guilty of federal felonies and serving his sentence in prison, but NY wants its pound of flesh for the business fraud. Given that the federal crimes are already proven, why shouldn’t NY’s statute be able to point to them? We know that they happened. NY isn’t conjuring them out of thin air. NY isn’t enforcing federal law, which is certainly the federal government’s prerogative alone. NY is simply enforcing its own law, which says that if you commit a federal felony, then any related state-level business fraud is also a felony.
Even if NY would still have gotten the misdemeanor against Cohen without this law, I find it hard to see how NY doesn’t deserve to get the felony against Cohen if its legislature has so decided. NY has every right to classify serious crimes as serious crimes in its own statutes, after all.
What this demonstrates to us is that there’s no principle for entirely ruling out the NY statute’s validity with respect to federal felonies. If the statute is valid and reasonable for upgrading the state’s charges of someone who is guilty of a federal felony, and there’s no esoteric state-federal separation argument that can easily disqualify this, then the converse has to be invalid: it’s not inherently invalid for a state law to hinge on federal crimes. The state has to be allowed to charge crimes in ways it sees fit, as long as they comport with the Constitution.
Now imagine a drug kingpin in NY who instructs his CPA to launder drug money. The CPA is charged with federal money laundering, and there’s a clear nexus of evidence between the kingpin and the CPA; but the feds decline to charge the kingpin for some inscrutable reason, while the CPA pleads guilty. However, as part of the crime, the kingpin signed some fraudulent checks to the CPA, and that constitutes business fraud under NY state law. Putting the kingpin away for a mere state misdemeanor simply doesn’t fit the seriousness of the crime, and isn’t worth the state’s resources. But getting the guy off the streets for a decade? That’s a prize.
The nexus is the key to the legal theory, not the “unproven” aspect. The nexus, after all, is all that matters. If there’s a nexus to a crime, and the statute is worded such that it can be any federal crime that has been duly convicted, then that fits the statute’s literal meaning, and resolves any confusion that lenity might have defaulted against us here.
To be clear, none of my armchair legal reasoning means the courts will see it this way. As we just saw in Texas and Washington, federal judges will make up all kinds of shit. But by the same token, we as the public are likewise under no obligation to pretend that Bragg’s theory is “shaky”.
Thanks for educating me on the state statutes in question as well as a useful analogy.
I’ve been frustrated at the first indictment being about small potatoes, but putting him in prison, ideally solitary confinement because it would drive him bonkers, is an end that justifies most means..