WSJ: Without limits placed on testimony, the jurors can now learn why the case was faulty

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In the Manhattan trial of former President Donald Trump, it seems that partisan judge Juan Merchan insisted on so many limits on the potential testimony of former Federal Election Commission Chairman Bradley Smith that the defense decided it was pointless to put him on the stand. But now the jurors can learn what Journal readers have known for more than a year—hush-money payments to alleged mistresses are not campaign contributions.

This weekend Mr. Smith noted this again on X and also explained in a series of posts why there was a big chronological hole in the claim that a 2016 payment to alleged mistress Stormy Daniels was improperly reported to avoid damaging news prior to that year’s election:

The payment to Daniels was made on Oct. 27. So the payment would not have been reported on the Pre-election report… The next report is the Post-Election Report…

In 2016, the Post-Election Report was required to be filed on December 8, one month after the election. So the prosecution’s theory, that Trump wanted to hide the expenditure until after the election, makes no sense at all…

Even if we assume, incorrectly, that it was a campaign expenditure, it wouldn’t have been reported until 30 days after the election. But again, none of this got to the jury, either through testimony or the judge’s instructions…

Merchan was rather obviously biased here, but I’ll give him the benefit of a doubt and say he was just thoroughly ignorant of campaign finance law, and had no interest in boning up on it to properly instruct the jury.

Mr. Smith sums up the issue under relevant federal law:

There was no illegal contribution or expenditure made, and no failure to report an expenditure. And even if we assume otherwise, the prosecution’s theory made no sense, suggesting no criminal intent.

Could this case look any worse? It seems that even if one made the error of regarding the hush-money payment as a campaign contribution, there would still be ample reason to question the constitutionality of the verdict. Steven Calabresi, who teaches law at Northwestern and Yale, writes for Reason magazine:

In 2010, in Citizens United v. Federal Election Commission, 558 U.S. 310, the Supreme Court held 5 to 4 that the freedom of speech clause of the First Amendment prohibits the government from restricting independent expenditures for political campaigns by closely allied corporations and groups like The Trump Organization. Under Citizens United, it was perfectly legal for The Trump Organization to pay Daniels $130,000 in hush money to conceal her alleged affair with Donald Trump…

Groups contributing to election campaigns can pay for advertising to promote candidates, and they can also pay hush money to keep bad or false stories out of the news. The effect either way is to help the candidate. You can contribute money to generate good publicity. And, you can contribute money to avoid bad publicity. The First Amendment protects freedom of speech in both cases.

Mr. Calabresi adds:

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. This is especially the case because the trial judge in Trump’s Manhattan case wrongly allowed Stormy Daniels to testify in graphic detail about the sexual aspects of her alleged affair with Trump. This testimony tainted the jury and the 2024 national presidential electorate, impermissibly, and was irrelevant to the question of whether President Trump altered business records to conceal a crime. The federal Supreme Court needs to make clear what are the legal rules in matters of great consequence to an election to a federal office like the presidency. A highly partisan borough, Manhattan, of a highly partisan city, New York City, in a highly partisan state, like New York State, cannot be allowed to criminalize the conduct of presidential candidates in ways that violate the federal constitution.

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.

Some readers were disappointed in your humble correspondent for suggesting on Friday that Gov. Kathy Hochul (D., N.Y.) should pardon Mr. Trump. Given the logical and constitutional flaws in the case, these disgruntled readers think it would be better to have this outrage exposed in the appeals process and completely repudiated, whereas a pardon might appear to some to be a merciful response to a legitimate prosecution for the sake of political comity. Perhaps such readers needn’t worry. Jon Levine reports for the New York Post:

A person close to Hochul said a pardon was “unlikely.”

“I cannot image a world where she would consider doing this, this makes no sense,” said the insider.

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