I find it odd that the New York Times decided to publish an opinion piece by David French arguing against Manhattan Attorney General Alvin Bragg’s  prosecution of Donald Trump in the Stormy Daniels matter. It’s not that the Times wants to offer both sides of the issue that catches me off guard. Nor is it the strength of French’s argument, which is solid. It’s more that they allowed French to make his argument based on pure speculation about a very key detail in the case.

As French points out, this is a very unusual prosecutorial decision with a lot of moving pieces. At the heart of the controversy is that statute of limitations, which would have ordinarily expired in a misdemeanor case from 2016. However, two factors make charges still viable. The first is that the clock doesn’t run in New York when the defendant is out of state, and Trump has spent very little time in New York since he was elected president. The second is that if the misdemeanor was committed in the furtherance of a felony, then the statute of limitations is six years rather than two.

French assumes that the latter loophole will be used rather than the former. I don’t see why this assumption is justified or necessary. If the clock hasn’t run out, then the felony loophole is not necessary. However, it does seem reasonable to assume that a felony is involved for the simple reason that the whole matter would be a lot of effort for a mere misdemeanor.

French’s key assumption is that the felony will be a violation of a New York State campaign finance law. He’s not alone in this. It’s the most widespread theory out there. The idea is that Trump’s payment to Stormy Daniels was actually a campaign expense, and it wasn’t handled as a campaign expense. French’s problem with this is that this was a federal election, and it should be covered under federal law.

The prosecution may claim that state campaign finance laws apply to Trump, and his payments thus violated New York law, but remember we’re talking about a presidential election. A federal statute expressly states that the relevant campaign finance laws “supersede and pre-empt any provision of state law with respect to election to federal office.” This law represents a formidable barrier to prosecuting Trump under state campaign finance laws, and there is no obvious path around it.

My immediate question is why French assumes Bragg is bringing a case that has such an obvious barrier? Surely the Manhattan Attorney General and his team of lawyers are aware that there’s a federal statute that could spike this theory of the case. If there’s no obvious way to win such a case, isn’t a better assumption that this isn’t how they intend to proceed?

And, really, French’s argument boils down to concern that Bragg is bending the law in too many places in order to bring a prosecution that just doesn’t add up.  He’s contorting himself to keep that statute of limitations from expiring and then he’s making a state case about a federal law.

If French has all his assumptions correct, then it’s worth considering what he has to say. But precisely because a prosecution doesn’t look likely to succeed under his assumptions, maybe he’s got something badly wrong.

The grand jury proceedings are secret. We have no idea what kind of information they’ve unearthed. It seems prudent to wait to see what they produce before we write editorials critiquing their work.