New York state governmental corruption metastasized after the Civil War. Mayor William “Boss” Tweed’s famous ring in New York City elevated kickbacks to a high art. His ability to deliver votes ensured that legislators found it in their interest to give him plenty of cover. When the arch-robber baron Jay Gould tried to stop fellow robber baron Cornelius Vanderbilt’s stealthy attempt to grab control of the Gould’s Erie Railroad, Gould created 50,000 more shares of Erie stock, diluting Vanderbilt’s shares. Running away to New Jersey to escape criminal charges, Gould and his confederates bribed enough legislators in Albany to buy a post facto rewrite of the criminal code legitimizing what he had done.
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Eventually, demand for reform grew. Boss Tweed went down on graft charges and ended his days in the Ludlow Street Jail. New legislators set reforms in motion, one of which was a constitutional amendment banning the legislature from incorporating other laws in their legislation by mere reference. This happened in other states swept by the reform movements of the time. A similar ban in New Jersey was in a state Supreme Court ruling for the purpose of clarity: Legislators would know clearly the content of the bill they were voting on, and the people would know what it required of them.
The New York Constitution includes this provision today in Article III, Section 16. It reads:
No act shall be passed which shall provide that any existing law, or any part thereof, shall be made or deemed a part of said act, or which shall enact that any existing law, or part thereof, shall be applicable, except by inserting it in such act.
In other words, no hiding of laws inside laws. If it is to be law, let it be set forth explicitly.
In practice, New York courts have followed the lines of the New Jersey interpretation, only rarely disqualifying laws on the basis of Article III, Section 16. When its Court of Appeals did overturn legislation, it was for a reason that bears directly on District Attorney Alvin Bragg’s case against Trump.
A Depression-era law in New York decreed price controls for several commodities, with the prices to be fixed by whatever the National Recovery Administration set as fair prices on the national level. Bennett Liebman wrote of this in the Touro Law Review, summarizing the majority decision written by Court of Appeals Chief Judge Frederick Crane:
The State Recovery Act violated the state constitution by improperly delegating state sovereignty to the federal government since the law “is a mere shell, leaving to national bodies or officials the power to make the laws of New York State.” Similarly, the constitutional ban on incorporation by reference was violated. Chief Judge Crane wrote, “Surely an act which provided that any regulation of Congress hereafter made when filed with the Secretary of State would be enforceable in this state, and a violation thereof would be a misdemeanor, would be a violation of the spirit and letter of this our constitutional provision.”
The minority opinion argued only that since the act only referenced a federal rule and not a law, Article III, Section 16 did not apply.
Article III, Section 16 is still a part of New York’s constitution, and Andrew McCarthy is making a powerful case in print and on podcast that it invalidates the law under which Bragg is conducting his fulfillment of his campaign pledge to prosecute Trump. That law as Bragg reads it makes any change of a business record made to conceal the violation of another law to be felony. Under this law by reference, Bragg incorporates federal campaign laws.
Trump Shakedown Exposed, and Loser Students Occupy Columbia, with @AndrewCMcCarthy, @JulianEpstein, @LexieTheLawyer, and @carriesheffield
Plus, Bragg’s bizarre strategy, pro-Hamas students breaking the law, and more. Watch today’s FULL show, right here on X: pic.twitter.com/NKKY7X7DN0
— Megyn Kelly (@megynkelly) May 1, 2024
In other words, there is no New York law that makes a crime of paying off a newspaper or a person to not write a story. So, Bragg has decided that Trump’s non-disclosure deal was a violation of federal election statutes, which the state law had incorporated by reference to whatever they might precisely be.
It’s hard to find something that more exactly fits Crane’s objection of making state legislation “a mere shell, leaving to national bodies or officials the power to make the laws of New York State.” Moreover, the minority’s dissent would not apply, as the incorporation is of federal law, not of an administrative board’s rule.
What makes Bragg’s position even weaker is that the federal prosecutors looked at the very case Bragg sees as criminal and declined to prosecute. In other words, Bragg is claiming that he has the authority to make a legal determination of a federal crime all by himself and so to actuate the New York state provisions.
Who invested him with such powers?
Not the U.S. Constitution, and not New York’s.
As for federal statute, read what appears on the official webpage of the Federal Election Commission: “The FEC has exclusive jurisdiction over the civil enforcement of the federal campaign finance law.”
Not Alvin Bragg or the New York City District Attorney’s office.
The case is driven not by law but by politics, the politics of Bragg’s campaign pledge and the larger politics of all those trying to make sure that the people do not get to have their say as to who they should have as their president.
This is not the purpose of law. This is as corrupt as the robber barons.
At least Jay Gould didn’t pretend to be saving democracy.
