Last week, a Manhattan jury delivered a historic verdict, finding former President Donald Trump guilty on all 34 counts of falsifying business records in his hush money criminal trial. This unprecedented decision marked the first time in U.S. history that a former president has been convicted of a felony. However, renowned legal scholar Steven Calabresi argues that the conviction is likely to be overturned due to the absence of a predicate crime, which is necessary to sustain the charges.

The trial, overseen by Judge Juan Merchan, concluded with the jury siding with prosecutors, determining that Trump participated in an illegal conspiracy to compromise the integrity of the 2016 presidential election. The allegations focused on a purported scheme to suppress damaging information, particularly through the concealment of a $130,000 hush money payment to adult film star Stormy Daniels. Trump’s sentencing hearing is scheduled for July 11, and the outcome could result in either prison time or probation.

Calabresi, a co-founder of the Federalist Society and a respected expert on constitutional law, expressed his concerns about the legal basis of the charges against Trump. According to Calabresi, the convictions hinge on a misapplication of New York State law, which criminalizes the falsification of business records only if it is intended to conceal another crime.

“Altering business records under New York State law is only a crime if it is done to conceal the violation of some other law,” Calabresi wrote for Reason magazine’s Volokh Conspiracy column. “Manhattan District Attorney Alvin Bragg alleged that the documents were allegedly falsely altered 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.”


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To bolster his argument, Calabresi cited several landmark Supreme Court cases, including Buckley v. Valeo (1976) and Citizens United v. FEC (2010). These cases collectively emphasize the protection of political expenditures under the First Amendment. In Buckley v. Valeo, the Supreme Court ruled that limits on political campaign expenditures violate the freedom of speech. Additionally, Citizens United affirmed the right of corporations and other entities to make independent political expenditures, further highlighting the constitutional safeguards for political spending.

“Under Buckley v. Valeo, an individual like Trump can spend an unlimited amount of his own money to promote his campaign,” Calabresi explained. He also highlighted the federal government’s historical reluctance to prosecute similar cases involving hush money payments. Notably, the unsuccessful prosecution of former Democratic Vice Presidential candidate John Edwards set a precedent for handling such cases. Edwards faced accusations of using campaign funds to conceal an extramarital affair, but the charges were ultimately dropped after the jury failed to reach a verdict.

“The U.S. Supreme Court needs to hear this case as soon as possible because of its impact on the 2024 presidential election between President Trump and President Biden. 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,” wrote Calabresi.

He firmly emphasized the implications of criminalizing political conduct beyond the legal arguments. He adamantly warned that allowing politically charged prosecutions to proceed unchecked could have perilous consequences for the American political system. He added: “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.”


Disclaimer: This article may contain commentary which reflects the author’s opinion.