Former President Donald Trump's ongoing trial in New York: A confusing prosecution of a bewildering case against a stupid defendant

Despite the best efforts of many an investigative reporter, former President Donald Trump's ongoing prosecution in New York for alleged violations of state election law has remained a confusing affair. As the case progresses, it becomes increasingly clear that the confusion is not all the result of a lack of information on the part of the press. Here I attempt to disentangle some of the complexities of the case, which, to this point, have not been successful in stopping the prosecution, but which may yet result in an acquittal.

The case against Trump rests on the interpretation and application of New York's law regarding the falsifying of business records with fraudulent intent. The statute in question, New York's section 175.10, makes it a misdemeanor to, "knowingly falsify, conceal, or cover up a written instrument or other record, including by making, creating, altering, or deleting an entry therein." The statute goes on to say that the offense becomes a felony if the defendant's fraudulent intent includes an intent to commit another crime, or to aid or conceal the commission thereof.

The prosecutors in the case, led by District Attorney Alvin Bragg, have alleged that Trump's alleged offenses of falsifying business records with fraudulent intent (the business records offense) are elevated to a felony by the defendant's fraudulent intent to commit another crime, in this case, the commission of state election law violations (the object offense). In other words, the prosecutors contend that Trump's intent in falsifying business records was to commit state election law violations, and that this constitutes felony falsification of business records.

The heart of the case is thus an allegation that Trump's conduct amounted to a conspiracy to influence the election in 2016, in violation of New York's election law. This is where the case becomes truly confusing, and where the prosecution has seemingly ventured into novel and untested legal territory.

The first issue that has been the subject of much confusion and debate is the question of whether a violation of federal law can serve as the object offense under New York's section 175.10. Judge Merchan has ruled that it can, despite the fact that such a reading of the statute seems to violate federalism and the separation of powers.

The second issue concerns the novelty of the prosecution's case. New York's election law, section 17-152, which criminalizes conspiracies to promote or prevent an election by unlawful means, appears to have never been used to prosecute anyone before. Despite this, and despite some skepticism from experts, the law school professors who spoke to Business Insider expressed confidence that the law would lead to a conviction.

The prosecution's case appears to be predicated on the novel andtwisty argument that Trump's alleged conspiracy to violate state election law amounts to a conspiracy to commit a conspiracy, which is itself a violation of section 17-152. As one attorney commented, "You're having an underlying crime within an underlying crime to get to that felony."

It remains to be seen whether the prosecution's innovative use of New York's election law will be enough to secure a conviction. With the case currently underway, we will have to wait and see what the jury thinks of the prosecution's innovative legal strategy.

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