ABBY PHILLIP: Professor, you say- see, three red flags with this case. What are they?
JED HANDELSMAN SHUGERMAN: Well the three red flags are: first, that there has- there's no reported case. I've checked the records of state cases. There's no state case that shows a state prosecutor using the Federal Election Campaign Act, which is the- really the crime that the prosecutors are alleging here. A federal election violation, a federal campaign filing violation as the basis, either directly or indirectly, for any crime. So that is a first example of what's unprecedented here, and there- this is not just a coincidence. There are good reasons why a federal prosecutor has complete control to the exclusion of the states for enforcing something as complicated as the Federal Election Campaign Act. That's the first one.
The second problem is that there is no example of this statute that relies on an intent to defraud being such a broad general public. The idea that one would be defrauding the general public or voters. There's no precedent for using it for election interference.
And the final problem is the use of this statute. But basically what the business filing violation is, a misdemeanor with intent to defraud, it becomes a felony only if the prosecutors can show an intent to commit or conceal another crime. The Trump lawyers pointed out, made an argument that- in New York, there is a problem with trying to use the filing. The mis filing to upgrade it to a felony, relying on another jurisdiction. And the Manhattan DA could only point to two examples, neither of which is a judicial interpretation. So it's an untested theory. Those two cases, one was a guilty plea and one was jury instruction. Neither one counts as a judge hearing an argument and ruling on it. So those are examples of how this case, three examples of how it's unte- based on untested legal theories and on unprecedented applications.