It’s hard to know what to say about the criminal case against Donald Trump, as set forth in the indictment and Statement of Facts made public yesterday because it’s such an empty bag. I’m going to find it painful to have to pay attention to it as it moves forward. This is the best a Democratic prosecutor, who ran on getting Trump, could gin up?
Although I have not read the press coverage as extensively as Lambert has, both he and I don’t see much conviction about the case, even from outlets that are Trump hostile (admittedly, neither of us has had the stomach to check out MSNBC). And the filings don’t have the Mercedes solid door clunk, well-engineered feel routinely found in Federal and important state and local indictments. The Statement of Facts, which sets out the narrative, is even a bit shrill.
Aside from looking an awful lot like trampling over the rule of law to take down Trump (who between being a New York City developer and a casino operator should have been an easy target), the case runs the risk of violating the rule, “If you shoot at a king, you must kill him.” The freakout about the prospect of another Trump term in office grants him that status even though he doesn’t have it.
The indictment relates solely to Trump fixer Michael Cohen’s payment of hush money to National Enquirer to kill stories they had bought from Stormy Daniels and another woman, believed to be Karen McDougal. Those payments were reimbursed, some by Trump personally, some out of Trump Organization accounts. All payments were recorded in Trump Organization records (perhaps because Trump Organization also keeps records for Trump personally? Because all or some of the personal payments were later reimbursed by Trump Organization entities?). The indictment’s 34 counts all invoke § 175.10:1
§ 175.10 Falsifying business records in the first degree.
A person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.
Let us stop and point out one elephant in the room. A big reason the DA has to try to bootstrap the alleged business records falsification into a first degree violation is that its statute of limitations is five years, versus two for a mere second class violation. If the Trump legal team can argue that there was no bigger crime this records hanky-panky was covering up, the case goes poof because the statute of limitations expired on the lesser offense.
In simple terms, Cohen paid $180,000 to get what were sometimes called “bimbo eruptions” paid off. The Statement of Facts is not clear as to whose idea it was,2 but the Trump Organization doubled the amount to be paid to Cohen so Cohen could characterize it as income, not a reimbursement, then added a $60,000 bonus. That $420,000 amount was then paid in 12 monthly installments. That was billed monthly as a payment against a retainer agreement, even though there was no retainer agreement. Trump then allegedly confirmed this arrangement in person.
The indictment gets to 34 counts by taking each of monthly payments Trump made to Cohen and each of the related entries in Trump Organization records as a separate count. Some experts have suggested Trump’s lawyers will get them consolidated into fewer counts.
To get to a first degree falsification, there has to be an intent to commit or aid in or conceal the commission of another crime.
Oddly, the Statement of Facts discusses Team Trump pressuring Cohen not to cooperate in a Federal investigation but does not talk about obstruction of justice…..presumably because a New York prosecutor does not have standing to pursue obstruction of justice in a Federal investigation. And that begs the question of why the Department of Justice didn’t go that route. It’s exactly the one used with Clinton in l’affaire Lewinsky, and has the advantage of being simple to explain and prove.
The Manhattan DA Alvin Bragg also mentions tax fraud in passing. That seems odd since the “fraud” here involved choosing have Cohen report income he never had and therefore pay unnecessary taxes. Perhaps the supposed fraud instead is having the Trump Organization treat all of the payments to Cohen as tax deductible, when if they were all to effect payoffs to help the Trump campaign, they were Trump Organization/Trump personal contributions to the Trump campaign and hence not tax deductible. Since these deductions would ultimately reduce New York State and New York City income taxes, it would seem to offer a clear path to tying the alleged records abuses to another fraud. But you’d expect to see that presented more clearly in both the indictment and the Statement of Facts if so.
The Statement of Facts instead bangs on about the payoffs to American Media Inc. (AMI), the parent of National Enquirer, to kill the stories for the benefit of Trump’s election efforts, and depicts that as trying to illegally influence the election. As many readers know, there are a lot of problems with trying to make that the actual or intended crime that turns a second degree records violation into a first degree one.
The first is that the election laws in question are Federal, and a New York state prosecutor lacks standing to enforce Federal law. This is even a more questionable approach since not only did the Department of Justice not pursue this case, the Federal Election Commission didn’t issue a civil fine either. Put it anther way, if New York courts nevertheless back this dodgy theory, it would show the rule of law is being tossed out the window to get Trump.
The second is that Federal law requires that for a payment to be an election law violation, it must be made for the sole purpose of influencing the election. Recall the John Edwards case. Some election supporters paid his pregnant paramour $1 million during the election. The jury acquitted Edwards on one count and deadlocked on five others, apparently because the Edwards team argued the payments were not made exclusively to keep her quiet so as to help the election, but also to hide it from his wife, who was fighting a fatal case of cancer. They also argued Edwards had no idea these payments could be construed to be campaign-related (the donors didn’t send these monies to the election organization). Even the section of Bragg’s Statement of Facts contends that the payments were not made solely but “principal purpose of influencing the election.”
Finally (although I have not parsed it super carefully), the Statement of Facts appears to rely on Cohen as the sole source for what Trump’s intent was. Cohen is not a reliable witness.
But as we pointed out in Links today, Biden is on the record that he will prevent Trump from becoming President again:
Biden told us that Democrats will do anything in their power to stop Trump from running and becoming next president:
Biden: “We just have to demonstrate he’ll not take power. But if he does run we’ll make sure under legitimate efforts of constitution doesn’t not become next… pic.twitter.com/qhX6U6ZZ3a
— I Meme Therefore I Am 🇺🇸 (@ImMeme0) April 1, 2023
And as Kevin W pointed out, this statement strongly echoes Biden’s remarks that the Nord Stream pipeline would be ended if Russia invaded Ukraine, and when challenged, he said he had the means to do so.
Is Trump harder to blow up than Nord Stream? It looks like we’ll find out.
§ 175.05 Falsifying business records in the second degree.
A person is guilty of falsifying business records in the second degree
when, with intent to defraud, he:
1. Makes or causes a false entry in the business records of an
2. Alters, erases, obliterates, deletes, removes or destroys a true
entry in the business records of an enterprise; or
3. Omits to make a true entry in the business records of an enterprise
in violation of a duty to do so which he knows to be imposed upon him by
law or by the nature of his position; or
4. Prevents the making of a true entry or causes the omission thereof
in the business records of an enterprise.
Falsifying business records in the second degree is a class A
2 Cohen’s guilty plea to eight Federal counts, most related to tax evasion separate from the Trump dalliances, depicted Cohen acting on his own in negotiating with AMI and making the payoffs, and then later going to the Trump Organization to get reimbursed.