I thank Steve for clarifying his theory below on why Trump might have a First Amendment defense in the New York case. As I understand it, Steve’s argument can be read as regarding the term “another crime” in New York Penal Code 17.50:
A person commits the crime of falsifying business records in the first degree when his or her intent to defraud includes the intent to commit another crime or to assist or conceal a crime.
Steve’s argument is that concealing the elements of “another crime” must refer to an act that not only satisfies the criminal law elements but that, when interpreted independently, is a crime that satisfies independent First Amendment scrutiny. Therefore, he held that if a jury finds that those elements of another criminal law have been satisfied, then it is not “another crime”—whether under Current law, or, if needed, a better understanding of the law changed by the Supreme Court’s appeal of Trump’s conviction by overturning court precedent.
This is an interesting argument, and I admit it’s not what I thought Steve was arguing in his first post. So I certainly appreciate the clarification and apologize to Steve for the misunderstanding. My response to this is that Steve’s argument raises a very interesting interpretive problem. When the New York Legislature uses the term “another crime” as part of an element, does “another crime” refer to an element of some other criminal law, or is “another crime” more of a separate constitutional concept that means Are some other elements of criminal law limited to the extent that these elements can become independent criminal offenses without violating the Constitution?
I think Steve believes the latter. This may be true. But I’m not entirely sure about that. It suddenly occurred to me that this is a question of statutory interpretation, not a constitutional question of the elements of the crime. Obviously, the crime as a whole must satisfy the First Amendment, but I do not think there is a constitutional issue with the specific elements of the crime involving First Amendment-protected activity. For example, if the Legislature makes it a crime to assault someone during a protest, the fact that the protest is protected by the First Amendment does not mean that it is a crime to assault someone during the protest. If I’m correct, then I think this ends up being an interesting question of statutory interpretation, assuming Steve is correct about the First Amendment issue (either under current law or possible future law).
I did a quick browse on Westlaw to see if I could find any New York cases on this issue, but I didn’t find anything useful. This is a difficult question to study because related terms end up giving rise to many unrelated cases. But thanks again Steve for the clarification, I’d be interested to know if anyone else has made more progress on the statutory issue than I have.
