This obscure N.Y. election law is at the heart of Trump’s hush money trial

06/05/2024

An obscure New York state election law that has rarely been prosecuted over five decades has been dusted off by Manhattan prosecutors and elevated to a prominent role in Donald Trump’s criminal trial over allegedly falsifying documents related to a hush money payment during the 2016 election campaign.

The law — Section 17-152 of the state’s election code — makes it a misdemeanor for two or more people to “conspire to promote or prevent the election of any person to a public office by unlawful means.” Trump is not being charged under that statute, which apparently has been used only a few times in cases related to state or local elections, though it is a key factor in his case.

The former president faces 34 felony counts of falsifying business records to cover up $130,000 paid to adult film actress Stormy Daniels to keep her allegations of a sexual affair hidden from voters. If convicted, Trump could face up to four years in prison.

In bringing the felony charges, prosecutors are required to prove not just that Trump doctored records, but that he did so to commit or conceal another crime. The underlying crime that motivated Trump’s alleged misconduct, prosecutors said in court, was a conspiracy to defraud voters in his presidential campaign.

“The primary crime that we have alleged is New York state election law section 17-152,” Manhattan Assistant District Attorney Joshua Steinglass told New York Supreme Court Justice Juan Merchan during Trump’s trial on April 23. “There is conspiracy language in the statute. The entire case is predicated on the idea that there was a conspiracy to influence the election in 2016.”

Trump has pleaded not guilty.

Some observers have criticized the case, filed by Manhattan District Attorney Alvin Bragg last year, as a dubious legal move that seeks to tie the records falsification case against Trump to an election conspiracy for which he is not directly facing charges.

Prosecutors say Trump falsely recorded payments to his then-attorney Michael Cohen as a legal retainer instead of what they really were: reimbursement for the payoff to Daniels. In legal filings last year, Bragg’s team members cited statute 17-152 as one of three possible underlying crimes to help make their case. The others they cited were that Trump sought to skirt New York tax laws and that he violated federal campaign finance regulations.

Anna Cominsky, associate professor at New York Law School, said focusing on the state election law statute is a way for prosecutors to present the most straightforward case to jurors. Bragg’s team does not have to prove Trump violated the statute but merely demonstrate that he was falsifying internal Trump Organization records as part of a broader scheme to improperly influence the 2016 election.

The prosecutors “don’t have to prove an underlying crime was committed. They have to make clear enough what their basis is — what that alleged crime is — but not get too deep,” Cominsky said. “They do not want the jury to think they have to find him guilty of another crime, also. That’s definitely a dance they’re playing right now.”

Cominsky said the extraordinary nature of Trump’s case as the first trial of a former president has made for unusual legal scenarios.

“This is that one in a million case, but that doesn’t mean that it’s selective prosecution, and it does not mean they don’t have the facts to back it up,” she said. “To me, it makes sense to use this law because it fits with the facts they have.”

Hope Hicks, a former aide to President Donald Trump, testifies during Trump’s criminal trial before New York Supreme Court Justice Juan Merchan in Manhattan on Friday in this courtroom sketch.

A version of election law 17-152, previously under a different code number, has been on the books since at least the mid-1970s. The New York State Board of Elections counsel has not issued any advisory opinions on the statute, a spokeswoman said.

A search of the New York State Law Reporting Bureau for relevant case law dating to 2000 found two entries in which a judge issued legal opinions on the statute. Both were from Merchan last year in rejecting Trump’s motions to have the case dismissed.

Attorney Martin E. Connor, a former New York state senator, suggested that statute 17-152 is seldom prosecuted because most defendants in such cases also commit more serious crimes and face felony charges.

“Things that might technically fit that [statute] would get prosecuted as bigger crimes,” said Connor, who has practiced law in New York for 53 years. He added that misdemeanor charges typically get pleaded down to a violation and almost never result in a jail term.

A handful of examples found by The Washington Post in a search of public news accounts demonstrate the parochial nature of the rare cases in which statute 17-152 has been prosecuted: a state assembly campaign, a school board election, a mayoral race.

In 1979, a four-term state assemblyman, Nicholas Calogero, was charged on five counts related to the improper use of absentee ballots, as well as a misdemeanor charge for conspiring with two others to promote his candidacy. Calogero, who died in 2004, was exonerated in that case, according to news accounts, but lost his seat in the statehouse a year later.

In May 2011, Aron Wieder, then the vice president of the school board in East Ramapo, N.Y., was charged under statute 17-152 after being accused of blocking the entrance to a polling site at an elementary school and intimidating voters.

Albert D’Agostino, then the school board’s attorney, said in a recent interview that Wieder was assisting voters in long lines who had been told they could not bring infants in strollers into the polling site.

The local district attorney dropped the case two months later, calling the charges unwarranted. Wieder now serves as a Rockland County legislator.

D’Agostino was not impressed by how statute 17-152 is being used in Trump’s case.

“I’m having difficulty understanding the convoluted path the prosecution is taking with that,” he said. “How I say it is, they are making legal connections with sky hooks. Using that [statute] to step up the case to a felony — to me, it’s incredulous.”

Clement Campana, the former city council president in Troy, N.Y., also expressed surprise that statute 17-152 is playing such an important role in Trump’s case. In 2011, Campana was among nine Democrats charged in a sweeping election fraud case connected to the use of falsified absentee ballots.

Like Trump, Campana, who had launched a mayoral bid, was charged with a felony count of falsifying business records and a misdemeanor count of election conspiracy under statute 17-152. Though four others involved were convicted on separate charges, special prosecutor Youel “Trey” Smith dropped the case against Campana, who had quit the mayoral race, two years later.

In an interview, Smith said he ended the prosecution because of mounting financial costs to the public. He suggested prosecutors in Trump’s case might be leery about directly tying his charges to federal campaign finance law over concerns about legal jurisdiction.

“They may be trying to avoid that complication,” Smith said. “They can say, ‘We’ve got this New York law right here, a statute that says you cannot conspire to illegally promote or prevent an election,’ and they’re choosing that as a perfectly legitimate way to do that.”