The commentary surrounding the Manhattan DA’s successful prosecution of former President Donald J. Trump under Section 175.10 of New York’s Penal Law often overlooks an important historical fact: To date, New York prosecutors have brought charges under that statute, which prohibits the falsification of business records, nearly 10,000 times. Until now, of course, none of those criminal defendants has been a former President of the United States. But the Manhattan DA’s pursuit of charges under Section 175.10 is otherwise fairly routine.
New York’s Penal Law makes it a misdemeanor offense to create a false entry in any business record with the intent to defraud another person or entity. But when someone undertakes the falsification of business records with the purpose of committing some separate and additional crime, Section 175.10 escalates the gradation from misdemeanor to felony:
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.
In other words, mere falsification of business records with an intent to defraud is a misdemeanor under New York’s Penal Law; but falsification of business records in furtherance of a separate crime is a felony.
In Trump’s case, the DA alleged that his falsification of business records was in furtherance of a conspiracy, undertaken with the Trump organization’s in-house lawyer, Michael Cohen, the publisher of the National Enquirer, David Pecker, and others, to skirt federal campaign finance laws. On appeal, Trump will argue that a state legislature cannot rely on a federal crime as a predicate for a state felony. New York’s appellate courts will now have to decide whether this argument holds water.
As stated above, the relevant passage of Section 175.10 employs the language “another crime.” Criminal statutes are construed narrowly by the judiciary, but the judiciary will apply these statutes based on their plain meaning absent a constitutional hurdle to such an application. Through this lens, of course, “another crime” refers literally to any other crime. And had the legislature intended to narrow the scope of the section’s application, it had the option to include language that reads “another crime under the law of this state,” but instead opted for the broader terminology that appears in Section 175.10 as codified. Trump may find some traction, however, because unlike state civil courts, state criminal courts lack general jurisdiction, and as such are an inappropriate forum to prosecute federal crimes.
I believe this argument fails, however, because the crime being prosecuted here is not a federal crime, it’s a New York State offense that allows for amplification of the grade of the offense based on the commission of any crime. The Tenth Amendment holds that all powers not delegated to the federal government, nor prohibited to the states, are vested in the states. Thus, unless the U.S. Constitution prohibits the states from passing the legislation that the New York State legislature has passed in this instance to allow for the amplification of the gradation of offenses under Section 175.10, that power remains with the states. And to my mind, there is no basis for concluding that the U.S. Constitution either delegates this power to the federal government or prohibits it to the states. Therefore, New York is likely within its rights as a state in drafting Section 175.10 as it did, and the conviction will probably be upheld.
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