The Electoral College Made Trump President. It Can Also Make Him A Felon

Well, it’s Friday night and for all his efforts to stop it Trump’s criminal trial in Manhattan is set to begin Monday morning. Trump will have to be there, and sit through the tedious process of jury selection. Followed by trial. Hopefully followed by his conviction which seems likely. An issue that gets discussed by pundits, and will surely be raised by Team Trump both during the trial and on appeal is that falsifying business records is a misdemeanor. So they will ask, where is the felony that has caused all this fuss?

There’s a nice article by Forbes which breaks things down. It correctly states that paying hush money isn’t a crime at all. Unless someone is threatened into entering into the agreement. (That would likely be tough to prove) Stormy Daniels seems to have, at least for a time been willing to take the money to keep her mouth shut. Obviously all that changed but let’s not get bogged down. The thing is, Trump tried to hide the payoff.

He will claim in court it was just to keep Melania from finding out about his dalliance with Daniels. Alvin Bragg is claiming there’s more to it than that. I’m going to skip over the issues with New York and federal taxes that were avoided (which are crimes) and talk a bit about campaign finance. Forbes explains how the scheme to hide the payoff to Daniels gets into the area that ELEVATES this into a felony:

In Trump’s case, he’s not being charged with making the payment itself or reimbursing it, but has only been indicted on 34 counts of falsifying business records, based on the fact that his reimbursement payments to Cohen were allegedly disguised as legal payments.

Even if hush money isn’t inherently illegal, some prosecutors have argued the way Daniels was paid—through Cohen, right before the 2016 election—was a campaign finance crime: Cohen pleaded guilty to federal campaign finance violations in 2018, after the Department of Justice alleged the Daniels payment was effectively a donation to Trump’s campaign that exceeded the legal limit on political contributions.

With me so far? Forbes goes on to note:

The alleged crime that Trump’s been charged with, falsification of business records, is typically classified as a misdemeanor under New York law, but is elevated to a felony when it’s done to facilitate another crime. That’s what prosecutors are alleging here—all 34 counts against Trump are classified as felonies—with Manhattan District Attorney Alvin Bragg arguing that the allegedly falsely labeled payments were done to cover up other crimes, including Cohen’s campaign finance crimes and alleged tax issues, as the payments to Cohen were falsely characterized as income rather than repayments.

It’s that part about “elevating” all this to a felony that some say makes for a problem with this prosecution. I’ve heard talk about it from time to time but since we are talking about tax avoidance it seemed to me (I’m not a lawyer, much less a member of the New York Bar) that the tax part was the clincher. One of the ways in which Trump (and Cohen) benefited was in avoiding taxes. Both federal and STATE taxes. The FEC crimes are federal in nature and were used to convict Cohen. (Trump was an unindicted co-conspirator in that case) That doesn’t mean Bragg can’t use evidence from that case but he can’t bring state charges based on them.

THAT is what I think both those who see a potential problem with Bragg’s case, but especially Trump and his lawyers are hanging their hats on. The election interference, covering up the Daniel’s tryst (lest we forget the deal was struck right AFTER the Access Hollywood tape came out and Trump was in deep sh*t) was a federal crime. Ergo how can Bragg bring charges in state court over Trump doing illegal stuff to affect a federal election?

Even before an hour ago I thought the pundits who think Bragg’s case is in fact solid and will hold up on appeal have been correct. My epiphany was to remember how Presidential elections actually work in this country. Technically, and more importantly Constitutionally we don’t have a “national” election. Unlike most democracies we don’t add up all the votes nationwide to decide the winner, which is something that has become quite the issue since 2000. Instead we have the Electoral College. Fifty STATE elections. The Constitution provides that each state will determine the manner for choosing their Electors, and as we know the means for submitting their electoral votes and the certification of them.

It hasn’t happened often in our history but as you know sometimes the person who loses the national popular vote wins the Electoral College vote and that’s the one that counts when it comes to the President and Vice-President. Fifty separate STATE elections. In both 2000 and 2016 Republicans who lost the popular vote won the Electoral College Vote. In Trump’s case in 2016 he lost the popular vote by well over two million votes. (Closer to three) The fact he lost in the state of New York and Hillary Clinton was awarded those electoral votes is to use the legal term moot. Trump attempted to defraud New York voters of information (and voters in every state but the only one that matters here is New York) and committed crimes in doing so.

I don’t know if this has been part of Alvin Bragg’s thinking as he’s prepared  his case but unless I’m way the hell off base it should be. While we commonly think of Presidential elections as strictly federal affairs, the same as for the House or the Senate they are in fact because of the Constitutional vestigial organ we call the Electoral College actually STATE elections that determine which candidate will be awarded any given state’s electoral votes.

For me that does in fact make it a state matter. It could make for an interesting question on appeal I’m sure. But I find more than a little irony in the fact that Trump only became President because of the Electoral College. And that that same mechanism might be the very means by which a felony conviction in Manhattan is upheld.

Trump is on record as being against the EC before he became its biggest fan. It would be funny as hell if it winds up being the “technicality” that turns him into a convicted felon. I don’t expect he’d wind up doing any time in prison. He’d be allowed out on appeal of course (rich and/or powerful people almost always are) but a felony conviction on his record WILL matter should the other three cases finally get to trial. “First time offenders” tend to get treated lightly by the system, especially for white collar and/or non-violent crimes. However, once a person is a convicted felon things change. Sentencing guidelines suddenly provide enhancement to sentences for convicted felons.

Well, I’m getting into a whole new topic here. My main point is that the Electoral College Sword gave us the national disaster of the Trump Presidency. It could also cut off the snakes head.