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

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

February 29, 2024, in the Wall Street Journal

Many observers thought the Supreme Court would decline to consider Donald Trump’s claim that presidential immunity shields him from prosecution for his conduct on Jan. 6, 2021. But on Wednesday the justices announced that they will hear the former president’s case in April. Mr. Trump could eventually face a trial on those charges, but the justices had little choice but to take up this question because the lower court’s ruling was so sweeping and dangerous.

Mr. Trump claims that his allegedly criminal actions were “official acts” taken as president. The U.S. Circuit Court of Appeals for the District of Columbia held that it didn’t matter if they were—that no president is entitled to immunity from “generally applicable criminal laws.” That decision violates the separation of powers, threatens the independence and vigor of the presidency, and is inconsistent with Supreme Court precedent.

The justices are unlikely to decide whether Mr. Trump’s actions were in fact “official acts.” Instead, they will consider the key legal question, “whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”

That’s a novel question, but in Nixon v. Fitzgerald (1982), the high court held that a president enjoys absolute immunity from civil suits predicated on his “official acts,” even if they fall foul of “federal laws of general applicability.” Justice Lewis Powell wrote that such immunity is a “functionally mandated incident of the President’s unique office, rooted in the constitutional tradition of the separation of powers and supported by our history.” Such 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.”

Mr. Trump maintains that he believed the 2020 presidential election was riddled with fraud and that his conduct on Jan. 6 was fully consistent with his constitutional obligations to “take care that the laws be faithfully executed.” Whatever the merits of that claim, it raises weighty questions of law and fact that the D.C. Circuit was wrong to brush aside—most centrally, that the president’s power is granted by the Constitution, which, as the supreme law of the land, overrides ordinary, “generally applicable” statutes.

The D.C. Circuit decision opened the door to all manner of constitutional crises. A former president could be prosecuted for ordering a military attack on an American affiliated with a foreign terrorist organization, even though such an order is clearly within his authority as commander in chief. Aggressive prosecutors motivated by ideology or partisanship could use capaciously worded criminal statutes—including those regarding mail or wire fraud, racketeering, false statements and misrepresentations—to challenge almost any presidential action, including those related to national security activities.

As with civil suits, it isn’t enough to say that the former president would have the opportunity to mount a defense in court. The mere possibility of personal prosecution for official actions would chill future presidential decisions. The D.C. Circuit casually disregards this danger, asserting simply that the “public interest” in prosecuting crimes is weightier than the risk of chilling impartial and fearless presidential action. It asserts that a president wouldn’t be “unduly cowed” by the prospect of criminal liability, “any more than a juror” or “executive aide” would be. That analogy is inapt because the president’s responsibilities are much weightier than those of jurors or aides. He alone is the singular head of a constitutional branch of government. As the justices recognized in Nixon v. Fitzgerald, the “greatest public interest” isn’t in enforcing ordinary statutes against the president. Immunity is necessary to ensure he has “the maximum ability to deal fearlessly and impartially with the duties of his office.”

The D.C. Circuit dismissed as “slight” the risk that former presidents will be politically targeted because prosecutors “have ethical obligations not to initiate unfounded prosecutions” and there are “additional safeguards in place,” including the requirement of seeking an indictment from a grand jury. These arguments border on frivolous. Not all prosecutors are ethical, and even those who are may be overzealous. Many cases have featured prosecutorial misconduct or abuse. And the justices have surely heard the saying that a prosecutor can indict a ham sandwich. Lawyers in civil cases are also bound by ethical obligations, but that didn’t vitiate the case for presidential immunity in 1982.

Jack Smith, the special counsel in the Trump cases, has asserted that federal prosecutors make decisions without regard to politics—but his conduct in this case belies that claim. His chief argument against Mr. Trump’s petition for a stay of the D.C. Circuit’s decision denying his immunity was that such a delay would cause “serious harm to the government—and to the public” because the case “presents a fundamental question at the heart of our democracy.” Many Supreme Court cases raise such questions, and Mr. Smith avoids saying what distinguishes this one. The obvious answer is the election timetable.

Mr. Smith’s demand for fast-tracking the Supreme Court’s consideration thus contradicts the D.C. Circuit’s suppositions about prosecutorial ethical probity. Trying Mr. Trump, the all-but-certain Republican nominee for president, before the election is inconsistent with Section 9-27.260 of the Justice Department’s Justice Manual, which makes clear that prosecutors “may never make a decision regarding . . . prosecution or select the timing [thereof] . . . for the purpose or affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.”

The question of presidential immunity is an important one for our constitutional democracy of separated government powers, and the D.C. Circuit made a grievous error in disposing of it so casually. The justices were right to halt the proceedings until they can give the issue the careful consideration it deserves.

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/why-the-justices-had-to-hear-trumps-case-presidential-immunity-125803c6