EXCLUSIVE: A member of the House Judiciary Committee is warning the judge presiding over New York v. Trump that the case brought against the former president suffers from "fatal flaws," and could be an example of state prosecutors "[taking] federal law into their own hands."
Rep. Troy Nehls, R-Texas, penned a letter to Acting New York Supreme Court Judge Juan Merchan Thursday. Merchan is reserving his decision on Trump defense attorney’s latest motion to dismiss the charges, which claims there is "no evidence" to connect the former president to falsifying business records.
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"Pending before your court are closing arguments concerning the prosecution of President Donald J. Trump by Manhattan District Attorney Alvin Bragg for alleged unlawful federal political contributions and the subsequent concealment of those contributions," Nehls wrote.
"This prosecution suffers from numerous fatal flaws, but most notably, it is premised upon the baseless contention that a formal finding that a violation of federal law occurred, which the federal government has not affirmatively established within the contours of a final adjudication with proper procedural safeguards," he continued. "This proves fatal to the case at hand."
Nehls explained that it is the Federal Election Commission, not the Manhattan DA, that is charged by Congress with enforcing federal campaign laws and determining in the first instance whether those laws are being followed.
"The FEC has not established that a violation of federal law has occurred," Nehls wrote, noting that the House Judiciary has jurisdiction over law and constitutional rights, and suggested a ruling on the case could raise the "prospect that state and local prosecutors can take federal law into their own hands."
The Federal Election Commission, in 2021, dropped its case into the issue of whether Trump violated election law with his ex-attorney Michael Cohen paying $130,000 to adult pornography actress Stormy Daniels. The investigation was tossed after it "failed by a vote of 2-2 to… find reason to believe that Donald J. Trump knowingly and willfully violated" federal election law.
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Nehls echoed further concerns about the case against the former president, including related to the "applicable statute of limitations, the conversion of a misdemeanor into a felony, and difficulties proving an actual intent to commit fraud by the former president."
Bragg charged Trump with 34 counts of falsifying business records in the first degree. Trump pleaded not guilty.
A charge of falsifying business records typically is a misdemeanor, but Bragg's New York prosecutors must convince the jury that Trump allegedly falsified those records in the furtherance of "another crime."
Prosecutors suggest that the other crime was in violation of New York State law – to prevent or promote election. On its face, as a stand-alone offense, that charge is also typically a misdemeanor.
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Coupling the alleged falsification of business records with alleged prevention or promotion of election becomes a felony crime, according to Bragg.
Nehls warned Merchan that federal campaign finance violations are "indisputably within the special competence of the FEC, not the Manhattan District Attorney’s Office."
Nehls also requested Merchan ask defense attorneys and prosecutors whether he must "stay the case" and instead, "refer to the FEC the underlying fact question of whether former President Trump violated the Federal Election Campaign Act (FECA) by engaging in unlawful campaign contributions."
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"Such a referral would neither disrupt the People of New York’s authority to try alleged wrongdoers nor your Court’s authority to adjudicate questions of New York law," Nehls wrote.
Nehls explained that if the FEC decided that no federal campaign finance violation occurred, Merchan would retain "sole jurisdiction to decide whether an underlying crime existed, notwithstanding claims of concealment."
Nehls said if the FEC did decide there were campaign finance violations committed, it would be up to the Justice Department’s Public Integrity Section to decide "whether to indict him in federal court."
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"Only after exhausting the federal process would it be constitutionally appropriate for the Bragg case to proceed to a jury," Nehls argued.
Meanwhile, Nehls said Bragg’s case "presents a substantial risk to the Constitution’s balance between federal and state authority."
"Failure to consider the propriety of a stay in this case means that any individual, let alone a former president, could be convicted for an underlying federal crime without the FEC or DOJ having exercised prosecutorial review," Nehls said. "This threatens due process by allowing state prosecutors to enforce federal law without the procedural protections afford by the federal government."
Nehls added: "Without appropriate consideration of the primary jurisdiction doctrine, the case before you could mean that Congress’s legislative process is nullified, for our laws can be enforced by state prosecutors without federal oversight."
Nehls told Merchan that whether New York County’s Supreme Court stays Bragg’s criminal proceeding against Trump and refers it to the FEC is within his "discretion."
"But failing to consider the question and allowing a verdict and judgment to become final risks abrogating the discretion of my committee and the United States Congress as a whole," he said.
In 2019, federal prosecutors in the Southern District of New York opted out of charging Trump related to the payments made to Daniels and former Playboy model Karen McDougal.
