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It is not a matter of fact like whether they're actually of legal age or not. It's whether the thing, itself, is actually a crime. Suppose the case is that they intended to show up and sleep with a person of age X, and sleeping with a person of age X is, by statute, considered a crime. Now, hypothetically, imagine that the defendant wants to raise a constitutional challenge to say that such a law, making it illegal to sleep with a person of age X, is not constitutional. Here, we're even removing the question of statutory interpretation (which may still be live). It's not about whether or not you did or didn't actually carry through with your intent to do the thing; it's challenging whether the underlying thing is even a crime in the first place.
To get into the weeds a bit, the prosecution never had to argue that the specific pattern of conduct Cohen engaged in was necessarily a violation. The jury instructions stated the law and it was up to the jury to determine if Trump intended to break that law. They determined that he did. If Trump intended to cover up a campaign finance violation the fact that he made a mistake as to whether there was an actual violation is irrelevant. That the facts indicated that Cohen's actions constituted a violation only make the case stronger. Suppose he thought Cohen stole campaign funds and made phony invoices to make the assumed theft look like legitimate payments. If it turned out that Cohen hadn't actually stolen the funds he'd still have the intent to cover up a crime; the law is clear that a crime need not be committed. Similarly, If he thought Cohen had committed a campaign finance violation that hadn't actually occurred and tried to cover it up his mistake of fact wouldn't be a defense. I would note that the defense never tried to challenge this, so it isn't fair game for an appeal anyway.
You didn't actually engage with the hypo. Please engage with the hypo. Let's make it even more clear by changing it from statutory rape to sodomy. Suppose we're one month pre-Lawrence. Someone makes what is argued to be a false business record in order to cover up what he thinks is a criminal act of sodomy. No one (at this point) is arguing that it turns on whether or not the sodomy in question was actually committed. Instead, he sees Lawrence sitting on the court's docket and thinks, "Damn, if they say that sodomy is actually not a crime, I bet I can appeal this shit."
Or hell, do you think that it would currently, post-Lawrence, be allowed to prosecute someone for intending to cover up an act of sodomy, and your reasoning will be because the underlying act of sodomy doesn't have to have happened... they just have to have intended to cover up some not-a-crime sodomy?
Sorry, I was trying to respond while pumping gas. In your hypothetical it wouldn't be an appeal but a post-conviction habeas corpus petition that would be filed after the court declares the underlying offense unconstitutional. I'm not going to go too deep into what the outcome of such a petition would be but I'd note that these are relatively rare and are only granted in extraordinary circumstances, and your hypothetical is complicated by the fact that the records destruction statute puts an extra layer between the defendant and the unconstitutional law. My first inclination would be that the defendant in your hypothetical would not be entitled to habeas corpus, especially at the state level, but I'm no expert.
I would add that the chances of any of this applying in the Trump case are incredibly slim, since Trump didn't challenge the validity of FECA in any of his pleadings and it's unlikely that any of the provisions at-issue will be struck down in the meantime.
Ok, so in Lawrence, itself, if the prosecution had a law WRT sodomy that is similar to the Catch A Predator laws, making it illegal to just have the intent to commit sodomy, and they only argued that Lawrence had the intent to commit sodomy, so no questions need to be asked about whether sodomy actually occurred (because perhaps, they actually 'caught the sodomy predator' before the act), and no questions can be asked about whether laws against sodomy are illegal, then they would have said, "Nothing wrong at all with this underlying question evading review"? Is that what you really think?
The business about having a "extra layer" statute in between is no problem whatsoever. They already had the one statute about sodomy, itself. All the state needed to do was pass a separate, Catch A Predator law, outlawing say, using a motor vehicle with the intent to go to a place to commit sodomy (they can sprinkle in a variety of other underlying offenses to make it a more 'general law'). They just always only prosecute the latter and never prosecute the former. There's an extra layer, so no defendant can challenge and say, "No, dawg, laws against sodomy are unconstitutional." Is this what you're really going with? Jonathan Mitchell is going to have a field day...
At the end of the day, even just explaining how this is supposed to work, as a technical matter, is just driving home the fact that this entire sham is a cleverly-designed procedural trick to prosecute a politician for something that very well may be constitutionally-protected behavior. You may even ultimately be right that this procedural trick will manage to evade review, but even if so, the public can rightly acknowledge that it's a bullshit procedural trick and believe that if the underlying conduct had been subject to serious constitutional scrutiny, it would have been determined that Trump didn't actually do anything wrong. The entire argument is concerning how we cleverly wordsmith things to evade review and just completely avoid even addressing the constitutional issues.
I think you may have misunderstood me. I was responding directly to your hypothetical, which involved a defendant who was already convicted and where there was a case pending on appeal that challenged the constitutionality of the underlying offense. In that case, the defendant would wait out the other case and file a writ of habeas corpus if the ruling was beneficial; an appeal at that point would be moot before it is heard. Generally speaking, yes, you can challenge the constitutionality of the law under which you were convicted on appeal, though in almost all cases you have to raise the issue at the trial level to preserve it.
Don't take my comments about the extra layer too seriously. In your first hypothetical my thought was that the primary aim of the statute was to prevent document fabrication with sodomy being a collateral matter, so the constitutional issue wouldn't be as central to the case. In your second hypothetical the goal of the statute isn't to prevent motor vehicle use but to prevent sodomy, making the constitutional issue more salient. I'm not basing this on any concrete legal principles, just my own interpolation based on how hard these are to get, so it could really go either way.
That all being said, I'm not sure what your point is. Trump never raised any constitutional issues, and even if could still present them I doubt he has much of an argument that the relevant FECA provisions are unconstitutional.
Aside from the comment about habeus, none of what I've been talking about for the past day is related to procedure. As a more practical matter, Trump's cries of selective prosecution probably did more to hurt his case than help it. His lawyers spent inordinate amounts of time on irrelevant issues rather than focusing on the actual elements of the crime. Their treatment of David Pecker was particularly egregious, as he was a minor witness who was there for background. Rather than drill into the fact that he couldn't provide any information about the Stormy Daniels payments, the defense has to ask him about every story he ever bought to try to make it look like the payments were all normal operating procedure. It was almost like the defense forgot that the judge dismissed the McDougal claims and they thought they had to litigate them. The directions the defense went on cross and in their statements give the impression that the goal wasn't so much to rebut the prosecution's case as it was to rebut any comment made that cast Trump in an unfavorable light. Like how much energy they spent trying to disprove his relationship with Stormy Daniels. The right move was to just stipulate to the affair and keep her off the stand but instead they spent much of the early trial badgering her as though there were any chance she'd say she lied (and even that wouldn't have helped the defense that much). This was a winnable case for the defense but their client's demands sunk it for them.
Ok, great.
I'll bracket off questions of what Trump actually preserved. My sense is that plenty of appeals have been formed from very minimal raising of a possible issue.
I think Trump has a plenty good argument that the relevant FECA provisions are unconstitutional, especially as applied to his case. Citizens United was pretty clear that the provisions in question do, in fact, impinge on the First Amendment generally, and the only legitimate purpose which can sustain them from constitutional pressure is to prevent quid pro quo situations, where money is exchanged for (at least the promise/hope of) official acts. Donald Trump paid for the expense out of his own money, just through an intermediary (I see almost no constitutionally-relevant difference between this and paying via a credit card, with banks as intermediaries). It makes no sense to claim that Donald Trump entered into a quid pro quo with Donald Trump where he exchanged his own money to himself for his own official acts.
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