In a painful flex, Volokh Conspirator Steven Calabresi makes a bold constitutional argument in defense of Donald Trump in the “hush money” case.

Every day breathless articles appear in the New York Times, and through-out the liberal media, about Donald Trump’s allegedly lawless payment of hush money to help out his 2016 presidential campaign. In fact, Donald Trump has a First Amendment right to spend money, as does the Trump Organization, to further his electoral ambitions. In Buckley v. Valeo, the Supreme Court wrongly upheld expenditure limits on how much non-candidates could spend on elections, but it rightly held that wealthy individuals like Donald Trump could spend as much as they wanted to spend of their own money on election campaigns. And, they can spend their money on hush money payments, television or radio advertisements, or in any other legal way that would further their own campaigns or electoral ambitions.

The indictment doesn’t charge Trump with a crime for paying out hush money. He’s free to pay porn stars as much as he wants to keep them silent. This is America, after all.

To the extent that Trump was spending his own money in the 2016 presidential campaign, he had a First Amendment right to do that under Buckley v. Valeo. To the extent he was spending Trump organization money, Trump also had a First Amendment right to do that too because the campaign expenditure limits of Buckley v. Valeo are now, and have always been, unconstitutional.

Whether Buckley was wrongly decided, and anyone, corporations included, should be able to spend without limit on political campaigns is an interesting contention, but not one that is implicated in Trump’s prosecution. Why? The indictment has nothing to do with spending money, but with concealing the nature of the expense by fraudulently entering it into the books as “legal expenses,” when it should have been entered as “paying off a porn star to keep her yap shut expenses” through the conduit of disgraceful lawyer Michael Cohen.

Calabresi, of course, is hardly dumb, and thus employs the butterfly theory to extend what he contends if the First Amendment right from the payment to the cover-up.

The accounting entries of the hush money payments as “legal expenses” simply reflects the fact that Trump did not believe the allegations against him were true, or that he was protecting his family, or that he considered the payoffs to extortionate porn actresses and others as being settlements that did not confirm his guilt but that helped his 2016 campaign, which they did.

The plot thickens. Assuming, arguendo, that Stormy Daniels’ allegations against Trump are false, and that Trump, for generally acceptable reasons, decided it was in his and his family’s best interest to pay her off rather than navigate the steeply uphill climb of trying to defend his sexual virtue against a lying extortionate porn star, then there is a reasonable argument to be made that these funds were, in a very real sense, legal expenses, as he was silencing lies and false accusations upon threat of suit and public denigration.

Does that fly? Orin Kerr says no.

First off, Trump was not charged with paying hush money.  As I understand the indictment, Trump is charged with 34 counts of keeping false business records.  It’s not the payments to keep Daniels quiet that is the claimed crime; it’s the keeping of false records needed to keep quiet that he had paid off Daniels to keep quiet.

Where there’s a “first off,” there’s usually a second off. If so, this is it.

To say that Trump has a First Amendment defense, then, I think you need to take the astonishing view that crimes somehow related to spending that helps a political candidate is protected by the First Amendment.  Even acknowledging that Steve’s vision is not intended to be rooted in current law, but rather in a vision of what he thinks First Amendment should be read to be, I don’t think I see how there could be a First Amendment right to do that.  As far as I know, there is no First Amendment right to commit election-related crimes. Wanting to help a candidate for office doesn’t give people a right to cook the books.

But Calabresi isn’t arguing that the First Amendment offers special protection to election-related crimes. He’s arguing that the underlying record keeping wasn’t necessarily false at all, and that even though Buckley was wrongly decided and Trump’s corporation should have been able to spend promiscuously on the promiscuous, it was arguably legitimately claimed as legal expenses,

A fundamental part of the problem is that so many of us take as gospel that Trump’s designating his hush money payoffs to Stormy being listed as “legal expenses” was an obvious and irrefutable fraud. To be fair, it’s awfully hard to believe otherwise, because Trump is, well, Trump. And if you have any lingering doubts as to Trump’s integrity, it was money paid to Michael Cohen, who couldn’t zip his fly without committing an ethical violation.

But Steven Calabresi, unencumbered by the well-deserved disgust of Darth Cheeto, has a point, not the least of which is that Trump does not have to prove his innocence, but merely raise a reasonable doubt.

All that Trump has to do to win this farcical criminal case against him is to assert his First Amendment rights in every level of New York State’s court system asking at every step along the way that Buckley v. Valeo be overruled insofar as it forbade the expenditures in question. Obviously, no-one can spend money to bribe election officials or engage in other illegal conduct. But, nothing Trump has done is remotely illegal. Trump had a First Amendment right to make the hush money payments that he allegedly made in 2016.

Whether throwing the First Amendment against the wall to see if it will stick is good enough to get a walk remains to be seen, but for those who believe that Trump’s conviction, whether felony or misdemeanor, is a fait accompli should appreciate that the defense is not without arguments that could raise enough of a doubt to hang a jury, if not worse.