In the Wall Street Journal, 27 December 2024

Some of the greatest defenders of American liberty have been men born in tyranny who made their way to these shores and appreciated from personal experience the country’s precious legal protections. So it was with David Rivkin, our frequent contributor and champion of the U.S. Constitution who died Friday at age 68.

Rivkin’s life is a great American story. He was born in the city of Pskov in what was then the Soviet Union. He made his way to America alone as a 19-year-old in 1976 amid the wave of Jewish emigration. (He later converted to Catholicism.)

Rivkin worked multiple jobs, including busboy and gas-station attendant, and he talked his way into Georgetown by asking the dean if he could attend classes. He earned a bachelor’s degree and a master’s in Soviet affairs and went on to Columbia law school. He quickly made a name for himself in the legal world, and in the 1980s became an associate in the White House counsel’s office, in the Justice Department’s policy shop, and as legal counsel and adviser to Vice President Dan Quayle.

Only in America, as they say, could someone arrive as an immigrant without a dime and a decade or so later work in the White House. Conservatives who want to ban all immigration might reflect that they would have lost the contributions of a man who became a leading conservative legal mind.

Even as he represented clients as a partner in BakerHostetler, Rivkin played an active role in America’s policy and intellectual debates. He took pride in winning an essay contest in a naval trade magazine in 1984 defending the Reagan maritime strategy. He made himself an expert on nuclear deterrence strategy, and one of our more memorable experiences was listening to David and Henry Kissinger discuss Russian foreign policy over lunch.

Rivkin’s special passion was for the Constitution and what he called its “elegant” structure for protecting individual liberty. He saw the separation of powers as the bulwark of that protection, both the vertical separation between states and the federal government, and the horizontal separation among the three branches of U.S. government. These checks and balances are as crucial as the Bill of Rights to the defense against dictatorship.

This conviction led Rivkin to take the intellectual lead in challenging ObamaCare’s individual insurance mandate. The Supreme Court embraced his argument on the limits of the Commerce Clause even as it upheld the law on other grounds. Rivkin advised many state Attorneys General on how to challenge federal intrusions on enumerated state power. He played a leading role in overturning the Obama Clean Power Plan, among other abuses.

Rivkin didn’t mind controversy, and he was a rare member of the Washington legal establishment willing to deplore the use of lawfare against Donald Trump. His argument in these pages explaining why Presidents have some constitutional immunity from criminal prosecution was ignored at the time by the conformist legal press, but again he was vindicated by the Supreme Court.

A search of our data base found no fewer than 243 David B. Rivkin Jr. bylines in these pages over the years, often with a co-author, and the first appearing in 1988 on the Byrd Amendment to the INF missile treaty. Excerpts from his writing appear nearby.

Even as he was burdened by illness in his final weeks, David was on the phone urging us to weigh in editorially on this or that subject of the current day. He was a great friend of ours, and of America’s vital role in the world, and his wisdom will be missed.

Source: https://www.wsj.com/opinion/david-b-rivkin-jr-dies-age-68-u-s-constitution-law-soviet-russia-obamacare-02fafc9d

The special prosecutor focuses on then-President Trump’s motives—a critical legal error.

By David B. Rivkin, Jr., and Elizabeth Price Foley

October 14, 2024, in the Wall Street Journal

Jack Smith made no concessions in his response to the Supreme Court’s July ruling in Trump v. U.S., which rejected the special counsel’s contention that he had unlimited authority to prosecute Donald Trump for alleged crimes that involved official presidential acts. Chief Justice John Roberts provided a framework for distinguishing official acts from private ones and for determining which official acts could be prosecuted.

In a 165-page brief filed with Judge Tanya Chutkan, who is presiding over the election-fraud case, Mr. Smith acknowledges only that Mr. Trump’s communications with Justice Department officials were official acts and can’t be prosecuted—as the justices expressly said. But Mr. Smith characterizes then-President Trump’s official conversations with the vice president as outside the zone of immunity and his communications with state officials and the public not as official acts of the president but private acts of a candidate. In so doing he gives short shrift to the separation-of-powers justification for immunity.

Trump v. U.S. extended presidential immunity, which the court recognized in Nixon v. Fitzgerald (1982), from civil lawsuits to criminal prosecutions. Like the immunity enjoyed by prosecutors, judges and members of Congress, the president’s immunity for official acts is predicated on separation of powers. Fitzgerald held that immunity is especially important for the president, who “occupies a unique position in the constitutional scheme” as head of a branch of government—an “easily identifiable target” for legal attacks that could thwart the effective functioning of the office.

A president’s immunity from criminal prosecution is absolute when he exercises his core constitutional powers, such as recognizing foreign governments, nominating and firing executive officers, commanding the military, issuing pardons, faithfully executing the laws—and, as in this case, directing an executive-branch department.

Other acts within the “outer perimeter” of the president’s responsibility, the court explained, have “at least” a presumptive immunity. The presumption is rebuttable only if the prosecutor can prove that the acts are “manifestly or palpably beyond” the president’s authority, such that, as Fitzgerald put it, imposing liability would “pose no dangers of intrusion on the authority and functions of the Executive Branch.”

Mr. Smith’s brief falls short of making that case. His primary argument is that the “throughline” of Mr. Trump’s postelection efforts “was deceit,” because the president made “knowingly false claims of election fraud.”

The prosecutor’s focus on Mr. Trump’s motive is a critical legal error. The Trump decision reiterated Fitzgerald’s holding that in distinguishing between official and private acts, “courts may not inquire into the President’s motives.” Allowing such an inquiry would vitiate the president’s immunity, since virtually every presidential decision is based in part on political considerations, and suits against a president would always allege improper motives.

The only relevant questions, therefore, are whether a president’s acts, objectively viewed, are official or unofficial, and if they are official, whether they can be prosecuted without intruding on the president’s legitimate authority. Mr. Smith asserts that when a president seeks “to influence his Vice President” about electoral certification, it is outside the zone of immunity because the vice president exercises this power as president of the Senate, and the “Executive Branch plays no role.” He deems Mr. Trump’s interactions with state officials private because the president has “no official role” in the Electoral College process or enforcing state election law. And he asserts that Mr. Trump made various public statements in his capacity as a candidate, not as president.

The court has rejected Mr. Smith’s cramped view of presidential authority on several occasions. In his concurrence in Youngstown Sheet & Tube v. Sawyer (1952), Justice Felix Frankfurter observed that executive power extends beyond statutes and express constitutional provisions to include the “gloss” of longstanding presidential practice. In Dames & Moore v. Regan (1981), a majority embraced Frankfurter’s view.

The Trump decision also accepted Frankfurter’s view, observing that “some Presidential conduct—for example, speaking to and on behalf of the American people—certainly can qualify as official even when not obviously connected to a particular constitutional or statutory provision.” The president is “expected to comment on those matters of public concern” and in so doing so, he may pressure others—outside the executive branch—to behave in certain ways. In McDonnell v. U.S. (2016), the court held that an “official act” under the federal bribery statute includes using one’s office “to exert pressure on another official to perform an official act.”

Mr. Smith asserts that Mr. Trump’s legal efforts in his “capacity as a candidate” to challenge certain state elections prove that his conversations with officials and statements to the public were private actions. But that gets it backward. Under Trump, the burden is on the prosecutor to show that his allegations don’t infringe on the president’s official duties, not on the president to show that his exercise of those duties is untainted by private considerations.

Chief Justice Roberts writes in Trump that immunity is a “farsighted” constitutional doctrine designed to prevent constant legal harassment from enfeebling the presidency. Without immunity, the threat of civil and criminal liability would create, as George Washington put it in his Farewell Address, the “alternate domination of one faction over another, sharpened by the spirit of revenge” with every new administration.

Democrats profess to be worried that Mr. Trump, if returned to office, will use the justice system to seek retribution against his political opponents. They should stop and consider that presidential immunity also restrains that “spirit of revenge” if Mr. Trump wins in November.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush Administrations. Ms. Foley is a professor of constitutional law at Florida International University. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/opinion/what-jack-smith-gets-wrong-about-immunity-law-election-presidential-power-f4f57ead

It rests on an intent to violate a state law that is pre-empted by the Federal Election Campaign Act.

By David B. Rivkin, Jr., and Elizabeth Price Foley

September 8, 2024, in the Wall Street Journal

Donald Trump runs no risk of going to prison in the middle of his campaign, thanks to Judge Juan Merchan’s decision Friday to postpone sentencing until Nov. 26. The delay gives his lawyers more time to prepare an appeal. Fortunately for Mr. Trump, his trial was overwhelmingly flawed, and a well-constructed appeal would ensure its ultimate reversal.

A central problem for the prosecution and Judge Merchan lies in Article VI of the U.S. Constitution, which makes federal law the “supreme law of the land.” That pre-empts state law when it conflicts with federal law, including by asserting jurisdiction over areas in which the federal government has exclusive authority.

Mr. Trump’s conviction violates this principle because it hinges on alleged violations of state election law governing campaign spending and contributions. The Federal Election Campaign Act pre-empts these laws as applied to federal campaigns. If it didn’t, there would be chaos. Partisan state and local prosecutors could interfere in federal elections by entangling candidates in litigation, devouring precious time and resources.

That hasn’t happened except in the Trump case, 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.

The normal approach would have been for the Justice Department to inform District Attorney Alvin Bragg, who was contemplating charges against Mr. Trump, of the FECA pre-emption issue. If Mr. Bragg didn’t follow the department’s guidance, it would have intervened at the start of the case to have it dismissed. Instead the department allowed a state prosecutor to interfere with the electoral prospects of the chief political rival of President Biden, the attorney general’s boss.

Mr. Trump was indicted under New York’s law prohibiting falsification of business records, which is a felony only if the accused intended “to commit another crime” via the false record. Judge Merchan instructed the jury that the other crime was Section 17-152 of New York election law, which makes it a misdemeanor to “conspire to promote or prevent the election of any person to a public office by unlawful means.” Prosecutors alleged that Mr. Trump violated this law by conspiring with his lawyer, Michael Cohen, and Trump-related businesses to “promote” his presidential election by coding hush-money payments as “legal expenses” when they should have been disclosed publicly as campaign expenses or contributions—matters that are governed by FECA.

FECA declares that its provisions “supersede and preempt any provision of state law with respect to election to Federal office.” The 1974 congressional conference committee report accompanying enactment of FECA’s pre-emption language states: “It is clear that the Federal law occupies the field with respect to reporting and disclosure of political contributions and expenditures by Federal candidates.” Federal Election Commission regulations likewise declare that FECA “supersedes State law” concerning the “disclosure of receipts and expenditures by Federal candidates” and “limitation on contributions and expenditures regarding Federal candidates.”

The New York State Board of Elections agreed in a 2018 formal opinion that issues relating to disclosure of federal campaign contributions and expenditures are pre-empted because “Congress expressly articulated ‘field preemption’ of federal law over state law in this area” to avoid federal candidates’ “facing a patchwork of state and local filing requirements.”

In using New York’s election law to brand Mr. Trump a felon based on his actions with respect to a federal election, Mr. Bragg subverts FECA’s goal of providing predictable, uniform national rules regarding disclosure of federal campaign contributions and expenses, including penalties for noncompliance. Congress made its goals of uniformity and predictability clear not only in FECA’s sweeping pre-emption language but also in its grant of exclusive enforcement authority to the FEC for civil penalties and the Justice Department for criminal penalties. Both the FEC and Justice Department conducted yearslong investigations to ascertain whether Mr. Trump’s hush-money payments violated FECA, and both declined to seek any penalties.

Prior to Mr. Trump’s New York prosecution, it would have been unthinkable for a local or state prosecutor to prosecute a federal candidate predicated on whether or how his campaign reported—or failed to report—contributions or expenditures. In 2019 the FEC investigated whether Hillary Clinton’s 2016 presidential campaign failed to disclose millions in contributions from an outside political action committee. The agency deadlocked, and no penalties were imposed. In 2022 the FEC levied $113,000 in civil penalties against Mrs. Clinton’s campaign for violating FECA because it improperly coded as “legal services,” rather than campaign expenditures, money paid to Christopher Steele for production of the “dossier” that fueled the Russia-collusion hoax. In neither instance did any state or local prosecutor indict Mrs. Clinton under state election law based on failure to disclose these contributions or expenditures properly. If New York’s Trump precedent stands, Mrs. Clinton could still be vulnerable to prosecution, depending on various states’ statutes of limitation and the Justice Department’s potential involvement.

Mr. Bragg’s prosecution of Mr. Trump is plagued by many reversible legal errors, of which the failure to accord pre-emptive force to FECA is the strongest grounds for its reversal on appeal. The prosecutor’s interference in the 2024 presidential election process has created legal and political problems. The Justice Department’s failure to intervene before the trial is a dereliction of duty.

The department aggressively prosecuted Mr. Cohen based on the same hush-money payments, so it was well aware that New York’s prosecution invaded its exclusive FECA jurisdiction. This is another stark example of the Biden administration’s incompetence—or, worse, the distortion of justice through a partisan lens. It is left to the appellate courts, and ultimately the Supreme Court, to clean up the mess Mr. Bragg and the Justice Department have made.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush Administrations. Ms. Foley is a professor of constitutional law at Florida International University College of Law. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/opinion/why-trumps-hush-money-conviction-cant-stand-appeal-federal-law-pre-empts-11ae9dc3

By David B. Rivkin, Jr., and Andrew M. Grossman

August 25, 2024, in the Wall Street Journal

Democrats have made clear that if they win the presidency and Congress in November, they will attempt to take over the Supreme Court as well. Shortly after ending his re-election campaign, President Biden put forth a package of high-court “reforms,” including term limits and a “binding” ethics code designed to infringe on judicial authority. Kamala Harris quickly signed on, and Majority Leader Chuck Schumer has made clear that bringing the justices to heel is a top priority.

Democrats proclaim their devotion to democratic institutions, but their plan for the court is an assault on America’s basic constitutional structure. The Framers envisioned a judiciary operating with independence from influences by the political branches. Democratic “reform” proposals are designed to change the composition of the court or, failing that, to influence the justices by turning up the political heat, as President Franklin D. Roosevelt achieved with his failed 1937 court-packing plan.

Now as then, the court stands between a Democratic administration and its ambitions. The reformers’ beef is precisely that the court is doing its job by enforcing constitutional and statutory constraints on the powers of Congress and the executive branch.

Roosevelt sought to shrug off limits on the federal government’s reach. What’s hamstrung the Obama and Biden administrations is the separation of powers among the branches. President Obama saw his signature climate initiative, the Clean Power Plan, stayed by the court, which later ruled that it usurped Congress’s lawmaking power. The Biden administration repeatedly skirted Congress to enact major policies by executive fiat, only for the courts to enjoin and strike them down. That includes the employer vaccine mandate, the eviction moratorium and the student-loan forgiveness plan.

That increasingly muscular exercises of executive power have accompanied the left’s ascendance in the Democratic Party coalition is no coincidence. The legislative process entails compromise and moderation, which typically cuts against radical goals. That was the lesson self-styled progressives took from ObamaCare, which they’ve never stopped faulting for failing to establish a government medical-insurance provider to compete directly with private ones. Similarly, Congress has always tailored student-loan relief to reward public service and account for genuine need.

Then there’s the progressive drive for hands-on administration of the national economy by “expert” agencies empowered to make, enforce and adjudicate the laws. The Supreme Court has stood as a bulwark against the combination of powers that James Madison pronounced “the very definition of tyranny.” Decisions from the 2023-24 term cut back on agencies’ power to make law through aggressive reinterpretation of their statutory authority, to serve as judge in their own cases, and to evade judicial review of regulations alleged to conflict with statute. By enforcing constitutional limits on the concentration of power in agencies, the Roberts court has fortified both democratic accountability and individual liberty.

That explains the Democratic Party’s attacks on the court. The New York Times’s Jamelle Bouie recently praised Mr. Biden for identifying the court as the “major obstacle to the party’s ability” to carry out its agenda and commended the president’s “willingness to challenge the Supreme Court as a political entity.” That explains the ginned-up “ethics” controversies: The aim is to discredit the court, as has become the norm in political warfare.

An even bigger lie is the refrain that the court is “out of control” and “undemocratic.” Consider the most controversial decisions of recent terms. Dobbs v. Jackson Women’s Health Organization (2022) returned the regulation of abortion to the democratic process. West Virginia v. EPA(2022) and Loper Bright Enterprises v. Raimondo (2024) constrained agencies’ power to say what the law is, without denying Congress’s power to pursue any end. Securities and Exchange Commission v. Jarkesy (2024) elevated the Seventh Amendment right to a jury in fraud cases over the SEC’s preference to bring such cases in its own in-house tribunals. And Trump v. U.S. (2024), the presidential immunity ruling, extended the doctrine of Nixon v. Fitzgerald (1982) to cover criminal charges as well as lawsuits, without altering the scope of presidential power one iota.

Meanwhile, the administrative state has scored wins in some of this year’s cases. In Consumer Financial Protection Bureau v. Community Financial Services Association, the justices rejected a challenge to the CFPB’s open-ended funding mechanism. A ruling to the contrary could have spelled the agency’s end. In Moody v. NetChoice, it reversed a far-reaching injunction restricting agencies’ communications with social-media companies seeking to censor content. And in Food and Drug Administration v. Alliance for Hippocratic Medicine, it reversed another injunction, against the FDA over its approval of an abortion pill. The last two decisions were notable as exercises of judicial restraint. In both cases, the court found the challengers lacked standing to sue.

What Mr. Biden, Ms. Harris, Mr. Schumer and their party are attempting to do is wrong and dangerous. They aim to destroy a branch of federal government. For faithfully carrying out its role, the court faces an unprecedented attack on its independence, beyond even Roosevelt’s threats. Unlike then, however, almost every Democratic lawmaker and official marches in lockstep, and the media, which were skeptical of Roosevelt’s plan, march with them.

As Alexander Hamilton observed, the “independence of the judges” is “requisite to guard the Constitution and the rights of individuals” from the actions of “designing men” set on “dangerous innovations in the government.” The political branches have forgone their own obligation to follow the Constitution, which makes the check of review by an independent judiciary all the more essential. Ms. Harris and Mr. Schumer would put it under threat.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Grossman is a senior legal fellow at the Buckeye Institute. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/opinion/harris-and-schumer-target-supreme-court-2024-election-destroy-judicial-independence-3ca50d5b

By David B. Rivkin, Jr., and Elizabeth Price Foley

July 1, 2024, in the Wall Street Journal

The Supreme Court on Monday rendered the most important defense of separation of powers in its history. Trump v. U.S. concluded that the Constitution requires immunity from criminal prosecution for official presidential acts. The decision isn’t about Donald Trump so much as it is about protecting the presidency itself; future occupants of that office, including President Biden; and the ability of the government to function.

In Federalist No. 70, Alexander Hamilton explained that the executive branch is embodied in a single person, the president, to avoid the “habitual feebleness and dilatoriness” inherent in multimember bodies like Congress. A unitary president ensures vigor in the exercise of executive power for the benefit of the nation. “A feeble executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government.”

The Trump opinion acknowledged these truths and built on Nixon v. Fitzgerald (1982), which recognized presidential immunity from civil lawsuits predicated on official acts. In that case, Justice Lewis Powell wrote that such immunity is mandated by the president’s “unique position” and “rooted in the constitutional tradition of the separation of powers.” Lawsuits “could distract a President from his public duties, to the detriment of not only the President and his office but also the Nation that the Presidency was designed to serve.”

As Chief Justice John Roberts noted in Trump, that’s even more true of criminal charges. Given “the peculiar public opprobrium that attaches to criminal proceedings,” they “are plainly more likely to distort Presidential decisionmaking than the potential payment of civil damages.” Without immunity, “a President inclined to take one course of action based on the public interest may instead opt for another, apprehensive that criminal penalties may befall him upon his departure from office.” Immunity is therefore crucial to protect the independence of the executive branch. But the immunity the court recognized isn’t without limit.

The president enjoys absolute immunity for acts undertaken within his exclusive power, as granted by the Constitution. “Once it is determined that the President acted within the scope of his exclusive authority,” the court declared, “his discretion in exercising such authority cannot be subject to further judicial examination.” One of the allegations against Mr. Trump is that he attempted to convince the Justice Department to investigate election fraud. Because the president has ultimate authority over the Justice Department, the high court held that Mr. Trump is absolutely immune from charges relating to his interactions with it.

For acts “within the outer perimeter” of the president’s official responsibility, the justices held, there is “at least a presumptive immunity.” The president has a broad array of “discretionary responsibilities” that aren’t exclusively his. “At a minimum,” the court held, “the President must . . . be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose ‘no dangers of intrusion on the authority and functions of the Executive Branch.’ ”

Applying that standard, the court concluded that allegations relating to Mr. Trump’s efforts to persuade Vice President Mike Pence to take certain actions during Congress’s certification of electors “involve official conduct,” but left it to the trial judge to determine whether prosecution “would pose any dangers of intrusion on the authority and functions of the Executive Branch.” The court took the same approach to allegations regarding Mr. Trump’s interactions with state officials, private parties and the public. Whether these were “official acts” requires “close analysis” by the trial court, “with the benefit of briefing” by the parties, the justices said. All these questions will be litigated and could again come before the high court.

At the same time, the justices made clear that the president has no immunity from prosecution for private acts. That’s consistent with Clinton v. Jones (1997), which denied Bill Clinton’s claim of immunity in a lawsuit alleging sexual harassment during his time as Arkansas governor. Presidents aren’t “above the law”; they are immune from civil lawsuit or criminal prosecution only for actions undertaken pursuant to the highest law, the Constitution.

The court also wisely rejected special counsel Jack Smith’s argument that determining whether acts are official and therefore immune can wait until after the trial. Presidential immunity “must be addressed at the outset of a proceeding,” the court held, because the mere “possibility of an extended proceeding” may reduce the presidency’s vigor. The justices observed that “we do not ordinarily decline to decide significant constitutional questions based on the Government’s promises of good faith.”

Without immunity and prompt pretrial determination thereof, former presidents could face years of court proceedings fighting novel charges predicated on public speeches; negotiations with state, foreign or congressional leaders; or executive orders lacking clear statutory authorization such as vaccine mandates, eviction moratoriums or actions opening the border. Clever prosecutors could conjure up indictments based on opaque criminal statutes such as conspiracy against rights, conspiracy to defraud the U.S., obstruction of justice, mail or wire fraud, racketeering, and false statements or misrepresentations.

The wisdom of the court’s decision is illustrated by charges Mr. Smith levied against Mr. Trump. The Court concluded that many of them were based on official acts and thus constitutionally inappropriate. Other charges were so poorly developed that they must be decided on remand, necessitating even more litigation.

Any prosecution of a president based on his official acts harms the presidency’s effectiveness. The court has sent a clear message to prosecutors like Mr. Smith: You’d better have a strong case, because presidents have immunity for official acts, and they are entitled to prompt judicial determination thereof. If the justices had decided otherwise, our nation would have descended into a destructive cycle of perpetual lawfare, weakening all presidents—including Mr. Biden—and further politicizing the justice system.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush Administrations. Ms. Foley is a professor of constitutional law at Florida International University College of Law. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/america-depends-on-presidential-immunity-supreme-court-decision-trump-charges-c163ae81

He was denied notice of the charges, meaningful opportunity to respond, and proof of all elements.

By David B. Rivkin, Jr., and Elizabeth Price Foley

June 4, 2024, in the Wall Street Journal

Whether you love, hate or merely tolerate Donald Trump, you should care about due process, which is fundamental to the rule of law. New York’s trial of Mr. Trump violated basic due-process principles.

“No principle of procedural due process is more clearly established than that notice of the specific charge,” the Supreme Court stated in Cole v. Arkansas (1948), “and a chance to be heard in a trial of the issues raised by that charge, if desired, [is] among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.” In in re Winship (1970), the justices affirmed that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” These three due-process precepts—notice, meaningful opportunity to defend, and proof of all elements—were absent in Mr. Trump’s trial.

The state offense with which Mr. Trump was indicted, “falsifying business records,” requires proof of an “intent to defraud.” To elevate this misdemeanor to a felony, the statute requires proof of “intent to commit another crime.” In People v. Bloomfield (2006), the state’s highest court observed that “intent to commit another crime” is an indispensable element of the felony offense.

New York courts have concluded that the accused need not be convicted of the other crime since an “intent to commit” it is sufficient to satisfy the statute. But because that intent is, in the words of Winship, “a fact necessary to constitute the crime,” it is an element of felony falsification. Due process requires that the defendant receive timely notice of the other crime he allegedly intended to commit. It also requires that he have opportunity to defend against that accusation and that prosecutors prove beyond a reasonable doubt his intent to commit it.

Mr. Trump’s indictment didn’t specify the other crime he allegedly intended to commit. Prosecutors didn’t do so during the trial either. Only after the evidentiary phase of the trial did Judge Juan Merchan reveal that the other crime was Section 17-152 of New York’s election law, which makes it a misdemeanor to engage in a conspiracy “to promote or prevent the election of any person to a public office by unlawful means.”

To recap, the prosecution involved (1) a misdemeanor elevated to a felony based on an “intent to commit another crime,” (2) an indictment and trial that failed to specify, or present evidence establishing, another crime the defendant intended to commit, and (3) a jury instruction that the other crime was one that necessitated further proof of “unlawful means.” It’s a Russian-nesting-doll theory of criminality: The charged crime hinged on the intent to commit another, unspecified crime, which in turn hinged on the actual commission of yet another unspecified offense.

To make matters worse, Judge Merchan instructed the jury: “Although you must conclude unanimously that the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you need not be unanimous as to what those unlawful means were.”

Due process demands that felony verdicts be unanimous, but in Schad v. Arizona (1991), a murder case, the high court indicated that there need not be unanimity regarding the means by which a crime is committed. But a plurality opinion by Justice David Souter cautioned that if the available means of committing a crime are so capacious that the accused is not “in a position to understand with some specificity the legal basis of the charge against him,” due process will be violated. “Nothing in our history suggests that the Due Process Clause would permit a State to convict anyone under a charge of ‘Crime’ so generic that any combination of jury findings of embezzlement, reckless driving, murder, burglary, tax evasion, or littering, for example, would suffice for conviction,” Justice Souter wrote.

Justice Antonin Scalia concurred, observing that “one can conceive of novel ‘umbrella’ crimes (a felony consisting of either robbery or failure to file a tax return) where permitting a 6-to-6 verdict would seem contrary to due process.” Four dissenting justices argued that the In re Winship precedent requires unanimity regarding all elements of a crime, including the means by which it’s committed.

All nine justices in Schad, then, believed unanimity is required to convict when the means by which a crime can be committed are so broad that the accused doesn’t receive fair notice of the basis of the charge. New York’s election law requires that the violation occur “by unlawful means,” so any “unlawful” act—including, in Scalia’s example, either robbery of failure to file a tax return—can qualify. That’s clearly overbroad. Thus, Judge Merchan’s instruction that the jury “need not be unanimous as to what those unlawful means were” was unconstitutional.

That isn’t all. Judge Merchan hand-selected three laws—federal election law, falsification of “other” business records and “violation of tax laws”—as the “unlawful means” by which state election law was violated. Mr. Trump received no notice of any of these offenses, and the prosecutor briefly alluded only to federal election law, during the trial. Mr. Trump tried to call former Federal Election Commission Chairman Brad Smith to explain why this law wasn’t violated, but Judge Merchan ruled Mr. Smith couldn’t testify on whether Mr. Trump’s conduct “does or does not constitute a violation” of federal election law, denying him a meaningful opportunity to be heard.

Judge Merchan’s second “unlawful” means, falsification of other business records, is circular: A misdemeanor becomes a felony if one falsifies business records by falsifying business records. Further, the prosecution never alleged or provided evidence that Mr. Trump falsified “other” business records. The prosecutors likewise neither alleged nor offered evidence that Mr. Trump had violated tax laws, Judge Merchan’s third predicate.

Mr. Trump, like all criminal defendants, was entitled to due process. The Constitution demands that higher courts throw out the verdict against him. That takes time, however, and is unlikely to occur before the election. That unfortunate reality will widen America’s political divide and fuel the suspicion that Mr. Trump’s prosecution wasn’t about enforcing the law but wounding a presidential candidate for the benefit of his opponent.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush Administrations. Ms. Foley is a professor of constitutional law at Florida International University College of Law. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/trumps-trial-violated-due-process-76fae047