Trump’s Constitutional Preemption Claim against Bragg’s Prosecution

David Rivkin and Elizabeth Price Foley have an insightful op-ed in the Wall Street Journal today, arguing that the guilty verdicts against Donald Trump cannot stand. The authors reason that the Federal Election Campaign Act (FECA) preempted state laws under which, they argue, Manhattan district attorney Alvin Bragg prosecuted the former president.

I commend Rivkin and Foley’s analysis. I want to elaborate on three points.

1. Preemption and Trump’s Failed Federal Removal Motion

First, the preemption argument — i.e., that federal law is supreme in areas, such as spending on federal elections, that the Constitution commits to federal authority — is a useful demonstration of how badly Trump’s defense was damaged by the rejection of his attempt to remove Bragg’s state case to federal court. In what was a strained and unpersuasive part of his July 2023 ruling against Trump on removal, Judge Alvin Hellerstein of the federal district court in Manhattan (the Southern District of New York) contended that the state laws at issue were not preempted.

Hellerstein cited precedents (not from the Supreme Court) instructing that the preemption doctrine must be narrowly construed. Okay . . . but the essence of the crime that Bragg alleged was that Trump had falsified his business records to conceal payments that — according to Bragg, though not according to actual federal law — constituted campaign expenditures under FECA. It should be credibly indisputable that, in enacting FECA and vesting the Justice Department with exclusive authority to prosecute FECA crimes, Congress preempted states from regulating campaign expenditures and state district attorneys from enforcing federal election law. (Congress also gave the FEC jurisdiction to enforce FECA by civil actions.)

The state business-records statute that Trump was accused of violating (§175.10) makes it a felony to falsify records with the intent to commit “another crime.” Hellerstein rationalized that preemption does not apply because “another crime” is a general term — it doesn’t require such a crime to be related to a federal election. That’s a disingenuously crimped way of looking at it because, as applied to this case and as alleged by Bragg, Trump was being accused of violating FECA (if a defendant had been accused of falsifying his records to conceal the “other crime” of cocaine trafficking, would Hellerstein claim the drug laws were irrelevant?). Hellerstein further asserted that preemption was somehow not germane to the New York election-law misdemeanor (§17-152) that Bragg cited as a potential “other crime” (and ended up relying on at trial); according to Hellerstein, this was because, under §17-152, Bragg did not need to prove Trump actually violated FECA, only that he intended to do so — a strange distinction, since Trump’s intention in this regard could not be sufficiently proved absent strong evidence of both knowledge that FECA applied and a willful disregard of FECA.

It is also worth noting that Hellerstein appears to have been under a misimpression about what Bragg was alleging (which is not surprising, given the caginess of prosecutors in this regard throughout the proceedings). Hellerstein acknowledged that the categories of state law that FECA preempts include “laws concerning the disclosure of . . . expenditures by Federal candidates”; yet, he concluded that §17-152 did not cover such conduct. At trial, however, prosecutors precisely argued that Trump violated §17-152 by concealing NDA payments that Bragg claimed were required to be disclosed as campaign expenditures under FECA.

The Trump defense team elected not to appeal Hellerstein’s ruling. I believe this was a mistake. Merchan relied on the federal court ruling throughout the pretrial and trial proceedings; because Merchan was a state judge, the federal judge’s rejection of Trump’s federal claim gave cover to Bragg’s illegitimate effort to enforce federal law. And as I related last week, Hellerstein himself relied on his prior ruling in recently rejecting Trump’s second attempt to remove the case to federal court.

2. Preemption and the Biden-Harris Justice Department

Second, there is the dog that didn’t bark. To repeat what I’ve noted a few times, the Justice Department is ordinarily zealously territorial about its turf — especially so when Congress has given it exclusive prosecutorial jurisdiction. Rivkin and Foley make this point persuasively in their op-ed, observing that partisan state prosecutors have not previously sought to entangle candidates for federal office in FECA litigation “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.” If the Trump case had not been a matter of a progressive Democratic DA bringing charges against the Republican opponent of a Democratic president then seeking reelection, it is inconceivable that the Justice Department would not have strenuously objected to the local DA’s usurpation of federal power, and gone to court if necessary to prevent it.

3. Preemption and Judge Merchan’s Suppression of Trump’s Defense

Finally, the preemption issue underscores Congress’s objective of ensuring uniform application of FECA throughout the country; that’s why the FEC and DOJ are given exclusive enforcement jurisdiction. This, in turn, illustrates how badly prejudiced Trump was by Judge Merchan’s refusal to permit the testimony of defense expert and former FEC commissioner Bradley Smith. Without that testimony, the jury was presented only with Bragg’s distortion of FECA, echoed by Merchan, not with FECA as it is interpreted by the commission that Congress created to administer FECA. (On this topic, see this stellar NR column by John Yoo and Robert Delahunty.)

The election law is distinct from the immunity issue that triggered the need to postpone Trump’s sentencing until after the election (see my post on Saturday about that). But unless the guilty verdicts are vacated on immunity grounds, the FECA issues will be prominent on appeal. David Rivkin and Elizabeth Price Foley do an excellent job of explaining why.