If Trump pardons himself regarding the federal crime he tried to hide by cooking the books, is the New York conviction void?

Question

[Note that Jen in their answer corrects quite a few of the premises of my question; read it. I let the question otherwise stand as-is.]

Falsifying business records in New York is only a felony if it was done in order to hide a felony. That's the legal basis of Trump's recent conviction in a state court in New York.

Now conceivably, if he is re-elected, Trump is able to pardon himself; but the Presidential power to pardon only concerns federal crimes; this is what makes the Georgia and New York cases so toxic for him. Even another term as President would not shield him from state prosecution.

The New York case is rather unusual though in that he violated state law and was tried in state court, but the state law recurs to the condition that a felony was concealed by it; in this case, it is the federal crime of a conspiracy "to undermine the integrity of a presidential election." This is an interesting construct since he has not been convicted of that federal crime; the state jury simply found it sufficiently convincing that he committed it. We know that a pardon can be given proactively, before somebody is tried or convicted. Conceivably, Trump could pardon himself for the conspiracy.

Arguably, accepting a pardon is actually an acknowledgement that one committed a crime, which is then pardoned. An accepted pardon would only reaffirm the opinion of the jury that Trump committed that crime!

Would a pardon for the federal crime which made falsifying the business records a felony in New York also void the reason for the falsifying being a felony?

Answer 1

You say:

Falsifying business records in New York is only a felony if it was done in order to hide a felony. That's the legal basis of Trump's recent conviction in a state court in New York.

That is not true. Mr. Trump was charged of New York Penal Law § 175.10, "Falsifying business records in the first degree." This is a felony. What makes this a felony, instead of a misdemeanor (as falsifying business records in the second degree is) is that 175.10 requires that the "intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof."

175.10 is not premised on the "another crime" having to be itself a felony.

You also say:

The New York case is rather unusual though in that he violated state law and was tried in state court, but the state law recurs to the condition that a felony was concealed by it; in this case, it is the federal crime of a conspiracy "to undermine the integrity of a presidential election."

This is not the complete legal theory. As described at this Lawfare article by Quinta Jurecic, there are three "another crimes" that the prosecution was allowed to submit as the object offence:

• violations of federal campaign finance law under the Federal Election Campaign Act (FECA);
• violations of New York Election Law § 17-152; and
• violations of federal, local, and state tax law.

Notably, the offence and conviction are also not premised on any of these object offences actually having been committed or proved beyond a reasonable doubt. All that is necessary to make out 175.10 is that there is an intent to commit another crime or to aid or conceal the commission thereof.

As emphasized in the jury instructions:

Under our law, although the People must prove an intent to commit another crime or to aid or conceal the commission thereof, they need not prove that the other crime was in fact committed, aided, or concealed.

By the time of the jury instructions, the prosecution's theory had coalesced around the "another crime" being a violation of New York Election Law § 17-152 (and this happens to be a misdemeanor). 17-152 prohibits "conspir[ing] to promote or prevent the election of any person to a public office by unlawful means." The prosecution's theory was that the unlawful means was either: (1) FECA violations; (2) violations of tax laws; or (3) other falsification of business records.

But all that is beside the point, because a federal pardon of any potential federal offence would not remove the facts on which the jury would have based their conviction under 175.10. A pardon would only remove federal penal risk for Mr. Trump. A pardon does not change facts.

Last, you say:

accepting a pardon is actually an acknowledgement that one committed a crime

This is not at all clear in the law. While it may have been suggested in Burdick v. United States, 236 U.S. 79 (1915), this is best read as dicta, given that it wasn't actually at issue in that case, and modern consideration of the question has gone the other direction. See generally these two answers by ohwilleke: 1; 2.