Manhattan District Attorney Alvin Bragg is prosecuting former President Donald Trump for unlawful federal political contributions and the subsequent concealment of those contributions. However, it is the Federal Election Commission, not the Manhattan DA, that is charged by Congress with enforcing federal campaign laws.
By taking federal law into his own hands, Bragg is way out of order. What’s more, he has run afoul of a somewhat obscure but vital doctrine created by the Supreme Court specifically to prevent such prosecutorial overreach.
This rule, known as the “primary jurisdiction doctrine,” says that a court should stay or dismiss a claim when it implicates issues within the special competence of a federal administrative agency. In this case, federal campaign finance violations are within the special competence of the FEC, not the Manhattan DA. Thus, the right thing to do is for Bragg to defer to the federal government on statutes it enforces.
The Supreme Court, in first articulating the primary jurisdiction doctrine in 1950, was concerned about state courts invading the authority of the federal government. If a state court instructs a jury about a federal enforcement scheme that was never actually enforced, it not only undermines congressional authority, but also deprives a defendant of the right to have the federal government adjudicate whether a federal statute was violated. Bragg is doing exactly that by circumventing the FEC to go after Trump.
As such, Judge Juan Merchan of the Manhattan Criminal Court should immediately stay the Bragg prosecution and toss this question back to the FEC: Did Trump engage in unlawful contributions?
If the FEC were to decide that no campaign finance violation occurred, the Manhattan Criminal Court would have to order the Bragg indictment dismissed, for there would be no underlying crime. If the FEC were to determine that Trump did commit campaign finance violations, then it would be up to the Department of Justice to determine whether to indict him in federal court. Only after exhausting the federal process could Bragg get his bite at the apple.
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Bragg’s case in Manhattan presents a substantial risk. An individual, let alone a former president, could be convicted for an underlying federal crime that the FEC might conclude was anything but. The Bragg case threatens due process by allowing state prosecutors to enforce federal law without the procedural protections afforded by the federal government. It sends the signal that when Congress passes laws, zealous state prosecutors can enforce them at will without accountability. And if it can happen to a former commander in chief, it can happen to anyone.
The rule of law demands that the Manhattan Criminal Court stay Bragg’s criminal proceeding and refer the allegation that Trump violated the Federal Election Campaign Act to the FEC. Any alternative is gross injustice.
Daniel Z. Epstein is an assistant professor of law at St. Thomas University in Miami and vice president of America First Legal. Follow him @DanielZEpstein.
