by WorldTribune Staff, June 6, 2024 Contract With Our Readers

The Supreme Court will eventually rule that Donald Trump is protected by the First Amendment in the alleged payment of hush money to a porn star to influence an election outcome, a constitutional scholar wrote.

“Altering business records under New York State law is only a crime if it is done to conceal the violation of some other law,” Steven Calabresi, a Clayton J. & Henry R. Barber Professor of Law at Northwestern Pritzker School of Law, wrote for Reason on June 1.

Manhattan District Attorney Alvin Bragg charged Trump allegedly falsely altered records to conceal a contribution of money in violation of federal campaign finance laws or in pursuance of winning the 2016 election by defrauding the voters of information they had a right to know.

“Neither argument passes First Amendment scrutiny,” Calabresi wrote.

Calabresi pointed out that federal campaign finance laws “were partially upheld in Buckley v. Valeo, 424 U.S. 1 (1976). In that case, campaign expenditure limits were ruled to be flatly unconstitutional as a violation of the First Amendment's protection of freedom of speech. Under Buckley v. Valeo, an individual like Donald Trump can spend an unlimited amount of his own money promoting his own campaign. But, the Supreme Court in Buckley did uphold contribution limits on how much an individual or a group could contribute to influence an election.”

Bragg argues that the Trump Organization's contribution of $130,000 to pay Stormy Daniels hush money exceeded federal campaign finance limits on contributions.

“The federal government itself has adopted a policy of not prosecuting hush money payments as illegal campaign contributions in the wake of its embarrassing loss of such a prosecution brought against Democratic Vice Presidential contender John Edwards,” Calabresi noted.

Edwards had paid hush money during the 2004 presidential election to a mistress he had had a child out of wedlock with.

In 2010, in Citizens United v. Federal Election Commission, 558 U.S. 310, the Supreme Court held 5 to 4 that the freedom of speech clause of the First Amendment prohibits the government from restricting independent expenditures for political campaigns by closely allied corporations and groups like The Trump Organization.

“Under Citizens United, it was perfectly legal for The Trump Organization to pay Daniels $130,000 in hush money to conceal her alleged affair with Donald Trump,” Calabresi noted.

The First Amendment Freedom of Speech Clause also rules out of order Bragg's argument that Trump defrauded American voters by preventing them from hearing about Trump's affair with Stormy Daniels.

“Theories as broad as this one is, of 'defrauding voters' would end up eliminating the freedom of speech in American elections. Voters had no 'right' to know about Donald Trump's sex life. He was obviously not monogamous being married to a third wife, and voters who adhere to traditional values voted for him anyway because of the kind of stellar conservative justices he went on to appoint to the Supreme Court,” Calabresi noted.

“There was thus no predicate crime that Trump could have been concealing when he allegedly altered business records at The Trump Organization. Trump's convictions in the Manhattan trial are unconstitutional because they violate the First Amendment as it was originally understood,” Calabresi added.

Calabresi said the Supreme Court needs to take up the case as soon as possible because “voters need to know that the Constitution protected everything Trump is alleged to have done with respect to allegedly paying hush money to Stormy Daniels. This is especially the case because the trial judge in Trump's Manhattan case wrongly allowed Stormy Daniels to testify in graphic detail about the sexual aspects of her alleged affair with Trump. This testimony tainted the jury and the 2024 national presidential electorate, impermissibly, and was irrelevant to the question of whether President Trump altered business records to conceal a crime.”

The Supreme Court, Calabresi added, “needs to make clear what are the legal rules in matters of great consequence to an election to a federal office like the presidency. A highly partisan borough, Manhattan, of a highly partisan city, New York City, in a highly partisan state, like New York State, cannot be allowed to criminalize the conduct of presidential candidates in ways that violate the federal constitution.”

Calabresi concluded: “The Roman Republic fell when politicians began criminalizing politics. I am gravely worried that we are seeing that pattern repeat itself in the present-day United States. It is quite simply wrong to criminalize political differences.”

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  Alvin Bragg, First Amendment, Law scholar: Constitution protects everything Trump is alleged to have done in hush money payout, WorldTribune.com