ALL DEFENDANTS MUST HAVE 'FAIR NOTICE' OF ALLEGED CRIMES, THE MIX OF LAWS DONALD TRUMP WAS CONVICTED OF DIDN'T PROVIDE IT.

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NEWS ANALYSIS

Former Pres. Donald J. Trump was convicted of 34 counts of falsifying business records on Thursday, by a jury in New York City, for providing “hush money” payments to a porn actress and marking it down as a legal expense. But under New York law, falsifying business records is only a misdemeanor unless the prosecution proves the defendant falsified the records with “intent to commit another crime or to aid or conceal the commission thereof.”

What does that mean? No one really knows for sure and no New York court has ever definitively explained it. That’s why every single one of Trump’s 34 felony convictions will be vacated, under the Rule of Lenity. And, while Trump may have committed misdemeanors, by the time Manhattan District Attorney Alvin Bragg brought the charges the two-year statute of limitations for misdemeanors had long expired. Here’s the breakdown.

The ancient "rule of lenity" requires all accused criminals be afforded "fair warning" of both crimes and their potential punishments.

"Although it is not likely that a criminal will carefully consider the text of the law before he murders or steals," the Supreme Court wrote in applying the Rule of Lenity to vacate a criminal conviction in 1931, "it is reasonable that a fair warning should be given to the world, in language that the common world will understand, of what the law intends to do if a certain line is passed."

The court added: "To make the warning fair, so far as possible, the line should be clear."

The facts of the 1931 case explain the legal principle. The defendant, McBoyle, stole an airplane. The legal issue for the Supreme Court to decide was whether the "National Motor Vehicle Theft Act" applied to aircraft. The statute defined "motor vehicle" as "an automobile, automobile truck, automobile wagon, motor cycle, or any other self-propelled vehicle not designed for running on rails." 

Notwithstanding the law's expansive wording—"or any other self-propelled vehicle not designed for running on rails"—the Supreme Court held the "National Motor Vehicle Theft Act" didn't plainly cover an airplane. Therefore, it dismissed the charge.

"In everyday speech, 'vehicle' calls up the picture of a thing moving on land," the Court explained. "When a rule of conduct is laid down in words that evoke in the common mind only the picture of vehicles moving on land, the statute should not be extended to aircraft simply because it may seem to us that a similar policy applies."

Recently, the Supreme Court applied the Rule of Lenity in 2015 to vacate a criminal conviction when it held that a fish was not plainly a "tangible object” under a federal law that prohibits obstructing federal investigations.

A plurality of the Court again applied the Rule of Lenity in 2021 to vacate the sentence of a criminal defendant given a mandatory minimum because he'd previously been convicted of burglarizing 10 different storage units in one storage facility on a single occasion. 

The Armed Career Criminal Act mandates a 15-year minimum sentence for crimes like the one the defendant in the case was convicted of if the defendant committed at least three prior felonies “on occasions different from one another.” Robbing 10 different storage units in one storage facility on a single occasion was one "occasion" the Court ruled, not "occasions different from one another.”

While a plurality of the Court based its decision on statutory interpretation, Justices Neil Gorsuch and Sonia Sotomayor wrote separately to explain a sentence reduction was also required by the Rule of Lenity. 

"It is about protecting an indispensable part of the rule of law—the promise that ... [defendants] can suffer penalties only for violating standing rules announced in advance," Gorsuch wrote.  Quoting the Federalist Papers, he added subjecting "men to punishment for things which, when they were done, were breaches of no law . . . has been, in all ages, the favorite and most formidable instrument of tyranny.” 

A year later, a 5-4 Gorsuch-led majority again invoked the Rule of Lenity to deny the US Government the power to fine citizens multiple times for failing to report bank accounts held overseas. Not even accountants anticipated the Government's interpretation of the Bank Secrecy Act, the court noted.

"If many experienced accountants were unable to anticipate the government’s current theory, we do not see how 'the common world' had fair notice of it," the Court wrote, quoting language from its 1931 McBoyle decision, the airplane thief case.

Trump was convicted of 34 counts of violating New York Penal Law section 175.10: falsifying business records in the first degree. The law, in whole, reads:

A person is guilty of falsifying business records in the  first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.

What “intent to defraud” and what “another crime or to aid or conceal” mean are the core of the problem.

Though it refers to “another crime,” the law does define what that "other crime" is. It does not say whether it is a crime under state law or whether it includes federal crimes too. Nor does it say whether it only applies to "another crime" committed by the defendant, or whether it applies to any "other crime" committed by anyone.  

And it definitely doesn’t proscribe paying “hush money”—hush money payments are totally legal. Federal, state and local Governments across America pay “hush money” whenever they settle a lawsuit and demand the plaintiff signs a “confidentiality agreement” as part of the settlement.

Even one of the prosecutors who investigated Trump agrees the law he was convicted of violating is “ambiguous.”

That’s what Mark Pomerantz wrote in his 2023 book, The People v. Donald Trump. Pomerantz is a former prosecutor in Manhattan District Attorney Alvin Bragg's office. He played a significant role in the Trump investigation prior to resigning in 2022.

Highlighting the law's vagueness, as applied to Trump, is the Feb. 15, 2024 decision by the judge presiding over Trump’s prosecution denying Trump's motion to dismiss the case.

Acting State Supreme Court Justice Juan Merchan had to go far beyond the confusing language of the law itself and quilt together what appellate courts said about the law in 13 entire pages of double-spaced legalese to explain his decision. While those appellate decisions announced general principles that guided Judge Merchan's decision, “no appellate court in New York has ever upheld (or rejected)" the interpretation of the law prosecutors convinced Merchan to accept, Pomerantz explained in The People v. Donald Trump.

If the law's words alone were not enough even for a judge to understand their meaning, how can they supply the average lay person with fair warning of what, exactly, it makes illegal—as required by the Rule of Lenity?

The question what a particular state law means is usually reserved for the highest court of the state to resolve. When lawyers talk about "federalism," that's what they mean. That’s because decisions of a state’s highest court, only interpreting state law, are not subject to review by the Supreme Court.

But since the Rule of Lenity is based on the 14th Amendment right to due process of law, whether Trump's convictions should be dismissed based on it is a federal constitutional question—making it fair game for the Supreme Court to resolve, where he appointed three of its current 9 justices, including Justice Gorsuch who stressed the importance of the rule just two years ago.

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