Trump Indictment: What to Make of Alvin Bragg’s Case (original) (raw)

Prosecuted

What to make of the criminal case against Donald Trump.

By ,a contributing editor who covers legal affairs. He is an attorney and former federal prosecutor.

Trump in court, not for the last time.Photo: Andrew Kelly/AP

The Manhattan district attorney’s office at One Hogan Place and the criminal court at 100 Centre Street fit pretty much every cliché you could come up with to capture the gritty, underfunded quality of New York’s government facilities — all worn wood, washed-out grays and browns, bruised furniture, and perpetually dirty glass and floors. Nothing about them is glamorous, and nothing about Donald Trump’s booking process — the paperwork, the fingerprinting, the controlled maneuvering through dilapidated halls at the hands of law enforcement while awaiting the unveiling of criminal charges against him — could have been remotely pleasant. The process is humbling at best, if not elementally, unavoidably humiliating. No matter what he and his supporters might claim, Tuesday was not a good day for Donald Trump. Just look at his face.

As for the case itself, we now have the charges against Trump in hand along with a background Statement of Facts, and they broadly track the reporting in the media in recent weeks. The case centers on the payment of hush money to the porn star Stormy Daniels in the final weeks of the 2016 presidential campaign, and the indictment charges Trump with 34 felony counts of falsifying business records in the first degree for how the payments were recorded by Trump’s business. We are at the start of what could be a long and complex process, but here is a look at where things stand — and where things may head from here.

Under New York law, a defendant is guilty of the felony of falsifying business records if he makes or causes a “false entry” in a company’s records with the “intent to defraud” and if the defendant also intended to commit, aid, or conceal “another crime.” Trump could in theory face a maximum term of four years in prison if convicted of one or more of the charges. There is no mandatory minimum, which means that even if he loses at trial, the sentencing judge could let him off with probation or a fine.

The underlying facts concerning the payment to Daniels have been broadly known since Trump’s former lawyer Michael Cohen pleaded guilty in 2018 to federal campaign-finance offenses in connection with the payment. As in the criminal information and the Justice Department’s sentencing memo in that case, the DA’s office contends that Cohen paid Daniels on behalf of Trump so that she would not go public with her story in the immediate aftermath of the Access Hollywood tape, when Trump appeared particularly vulnerable as a candidate. Manhattan prosecutors contend that Cohen “acted in coordination with” and “at the direction” of Trump in order to suppress the damaging story and influence the 2016 election.

Cohen paid 130,000toDanielsinlateOctober2016aspartofasettlementagreementthroughashellcorporationcalledEssentialConsultants,LLC,andhefundedthepaymentfromahome−equitylineofcreditthathehadpreviously(andfraudulently)obtained.Cohenwasreimbursedforthepaymentaftertheelection,alongwithothersupposedexpenses,additionalmoneytocoverthetaxeshewouldneedtopayonthereimbursedfunds,andwhatprosecutorsdescribeasa130,000 to Daniels in late October 2016 as part of a settlement agreement through a shell corporation called Essential Consultants, LLC, and he funded the payment from a home-equity line of credit that he had previously (and fraudulently) obtained. Cohen was reimbursed for the payment after the election, along with other supposed expenses, additional money to cover the taxes he would need to pay on the reimbursed funds, and what prosecutors describe as a 130,000toDanielsinlateOctober2016aspartofasettlementagreementthroughashellcorporationcalledEssentialConsultants,LLC,andhefundedthepaymentfromahome−equitylineofcreditthathehadpreviously(andfraudulently)obtained.Cohenwasreimbursedforthepaymentaftertheelection,alongwithothersupposedexpenses,additionalmoneytocoverthetaxeshewouldneedtopayonthereimbursedfunds,andwhatprosecutorsdescribeasa60,000 “year-end bonus.” The full amount of the reimbursement, totaling 420,000,waspaidinmonthlyinstallmentsof420,000, was paid in monthly installments of 420,000,waspaidinmonthlyinstallmentsof35,000 over the course of 2017.

Anti-Trump protesters wait for Trump’s arrival at the Manhattan Criminal Court.Photo: Andres Kudacki

Prosecutors contend that the payment to Daniels “violated election laws” — though they do not specify which ones, including whether they were state or federal laws — and that Trump and others “took steps that mischaracterized, for tax purposes, the true nature of the payments.” They also cite, but did not charge, two other instances in which Trump and his associates at the National Enquirer paid people to suppress potentially damaging news stories — a payment in late 2015 to a doorman concerning an alleged story (which turned out not to be true) about Trump fathering a child out of wedlock, as well as a $150,000 payment to Karen McDougal in 2016 to prevent her from going public with her own story of a sexual encounter with Trump. These events do not directly underlie any of the 34 criminal counts, but prosecutors contend that, along with the payment to Daniels, these efforts reflect a broader pattern on the part of Trump and his pals to “catch and kill” negative stories about him.

The 34 counts themselves each concern a separate business record tied to the reimbursements to Cohen for the Daniels payout over the course of 2017. They include invoices from Cohen, entries in corporate general ledgers, and checks and check stubs. Prosecutors contend that the reimbursements were “disguised” within the Trump Organization as payments “for legal services” in the form of a supposed “retainer” for Cohen, but in fact “there was no retainer agreement” and Cohen “was not being paid for legal services rendered in 2017.”

A key part of this prosecution will concern exactly what Trump was told and understood about the nature of the payment, its legality under federal or state law, and how it would be recorded within his company’s books and records, but there are scant details on these points in the indictment. Prosecutors allege, however, that Cohen “discussed the deal” with Trump and Trump Organization CFO Allen Weisselberg. They say Trump “did not want to make” the payment himself and instructed the other two men to figure out a different arrangement (hence the convoluted arrangement involving Cohen), and that before making the payment, Cohen “confirmed” with Trump that he “would pay him back.” The indictment also alleges that in “early February 2017,” Trump and Cohen “met in the Oval Office at the White House and confirmed the repayment arrangement.”

Trump’s lawyers appear poised to try to get the charges dismissed before a trial — a routine legal maneuver at the outset of a criminal case that usually fails, and one that could be a particularly heavy lift here. The reason is that the court does not have access to all of the witness testimony and evidence — that, after all, is what the trial is for — so prosecutors can argue that any factual defenses that Trump might raise (for instance, that he had no “intent to defraud” anyone) cannot be resolved in a vacuum or simply on the self-serving say-so of his lawyers.

At this early stage of the process, Trump’s lawyers should be looking for clean and uncontroversial legal issues to get the case tossed — ideally issues that require few (if any) factual determinations that could be contestable in any way. A classic example, which Trump’s lawyers are likely to pursue here, is that the case is barred by the relevant statute of limitations because the payments were completed over the course of 2017, and the relevant limitations period is just five years.

Ordinarily, these charges would be time-barred by now, but the DA’s office could rely on a couple different legal theories, both of which seem to be on solid legal footing. One of them is that the statute of limitations was paused (or “tolled” in legal parlance) while Trump was in the White House and after he decamped to Florida, because New York law allows an extension of the time to bring criminal charges when “the defendant was continuously outside this state.” The DA may also rely, alternatively or in conjunction with other tolling theories, on the fact that former governor Andrew Cuomo issued an executive order that tolled New York’s statutes of limitations for much of 2020 due to the pandemic.

Trump might also argue that he is the victim of selective prosecution. That argument should fail because the law in this area generally requires two things — both that the defendant was singled out by prosecutors for an improper reason (like race or political affiliation) and that other, similarly situated people have not been charged for the same conduct. Thus far, Trump’s lawyers have not identified any other cases that would satisfy that second prong, which should be fatal to the effort.

Trump’s lawyers may also argue that the charges are invalid as a matter of law to the extent that they rely on the theory that the falsification of records was intended to further or conceal a federal “crime.” It is not clear that the term “another crime” in the false business-records statute encompasses federal crimes (as opposed merely to state crimes), and although the DA’s office has prosecuted such cases in the past, there does not appear to be any controlling appellate law explicitly approving of this approach. Some commentators have posited that interpretations of New York law in other, non-criminal contexts suggest that the phrase “another crime” should encompass federal crimes, but a principle known as the “rule of lenity” generally guides courts to interpret criminal laws in favor of defendants when the relevant statutory language is ambiguous, as Trump could argue here.

Even if the court were to accept that a federal crime would be sufficient to support the charges, there is still an open question about whether the DA’s office could rely on a violation of federal campaign-finance law for this purpose. It does not appear that prosecutors in the state have ever filed a comparable case based on federal election law, which is historically — both legally and practically — the province of federal authorities.

There are also legitimate questions about the strength of the theory that federal campaign-finance law was violated, mostly because Trump paid the money from his own funds (rather than relying on campaign donations) and because he could claim that he had independent personal reasons to pay Daniels that would have existed even if he had not been running for president at the time, like avoiding public embarrassment or preventing his family from finding about the alleged affair. (The fact that Cohen pleaded guilty to comparable federal campaign-finance crimes does not resolve the matter, either. It is not that unusual for someone to plead guilty to a crime while another affiliate or co-conspirator fights the case and eventually gets off, and as his lawyers have repeatedly noted, Trump was not charged by federal prosecutors even after he left office, when he lost any claim to immunity at the federal level.)

Federal primacy in this area could also complicate any effort to rely on state election law as an alternative basis for the charges. An examination undertaken by the New York Times“strongly” suggested “that New York state prosecutors have never before filed an election law case involving a federal campaign,” but the fact that something has never happened before does not mean that it can never happen. There are at least a couple state election laws that could arguably be implicated by the alleged conduct — one, for instance, prohibits orchestrating campaign contributions in excess of legal limits, and another makes it unlawful for two or more people to conspire to get someone elected using “unlawful means” — but it is not clear under New York law whether these theories can be used in this context.

We may learn more on this point as the case continues to be litigated in its early stages, but as I have noted recently, the mere fact that a legal theory is arguably “novel” or concerns highly unusual facts does not mean that it is invalid or somehow illegitimate under the law. It means that prosecutors will need to try to amass a robust legal basis — drawing on the text and historical underpinnings of the relevant statutes as well as broader legal principles — to persuade both the trial and appellate courts to rule in their favor.

If there is a trial, we should expect Trump to mount a defense on every element of the offenses.

He might claim, for instance, that the recording of the payments as legal expenses did not involve any “false” entries, since Cohen was being reimbursed for an expenditure to complete a legal settlement. (The description of the reimbursements as part of a “retainer,” as well as the elaborate machinations, could make this argument harder to mount, since they suggest an effort to conceal the real nature and purpose of the payment.) Trump might also try to claim that he was not personally involved in the decisions about how to structure and record the payment on his company’s books and that, as a result, he is not criminally liable for making or causing any “false” entries.

Trump could also contend that, even assuming he was personally involved in making the false entries, he had no “intent to defraud” anyone because he relied on his advisers to handle the matter and because he did not intend to deprive a third party of any money or property. On that latter point, however, some New York courts have held that no such requirement exists, which could allow the DA’s office to prevail if, for example, they can establish that Trump intended to deceive campaign-finance authorities or the general public.

Even as we are flagging these issues, it bears repeating that we do not know the full extent of the DA’s evidence, including other documents and witnesses who have not necessarily sought the public spotlight. It seems apparent that Michael Cohen will be a key witness, and I will not belabor the challenges of using him as a witness, but none of us can offer a definitive prospectus on the case at this time, with the limited information that is currently available to us. Presumably we will get more insight into the evidence supporting the DA’s case in the months ahead, but for now, we are all doing our best with limited information, and with the understanding that our assumptions may turn out to be wrong or in need of revision as we learn more.

One particular challenge for Trump will be whether he can actually get a jury to take these sorts of defenses and arguments seriously without taking the stand and putting his own testimony behind them. Generally speaking, it is not a good idea for criminal defendants to take the stand in their own defense, particularly when, as in the case of Trump, we are talking about someone who does not exactly excel at self-control.

As we look down the line to a potential trial, the DA’s office has the considerable advantage of an undeniably favorable jury pool. In 2020, Joe Biden got 86 percent of the vote in Manhattan, demolishing a man who was once a New York City icon but who has seen his standing diminish in recent decades and practically crater in the borough after his truly awful presidency. (Trump’s lawyers have recently indicated that they will try to get the trial moved to Staten Island, but that effort is likely to fail, since criminal defendants generally do not get to move criminal cases simply because they do not like the jury pool.)

That said, Trump is a singular criminal defendant. Even if he cannot obtain an acquittal at trial, his lawyers can aim for a hung jury and mistrial if they can persuade one or more jurors to side with him for pretty much any reason. The unparalleled public megaphone that he, his lawyers, and his campaign have make this a more realistic strategy than it would be for the average defendant, but even if he is convicted on some or all of the charges, we can expect a post-trial effort to get the conviction thrown out.

One considerable wrinkle here is when a trial might even take place. Given where we are on the calendar, Trump could be actively campaigning in the Republican primary or the general election at the time a trial might normally be scheduled. We are not there just yet, but at some point, we can expect a lively debate between prosecutors and Trump’s lawyers about when this trial should take place, or even if it should take place while Trump is actively campaigning.

Finally, a few notes of circumspection as we grapple with a literally unprecedented situation.

First, we are a long way off from a trial and conviction in what is sure to be a hard-fought case, but even if Trump is convicted, he would have credible arguments to make that he should serve no prison time under the circumstances, particularly given his age, his service as president, and the relatively low-level nature of the charged offenses in the broad scheme of New York criminal law. There was a time when some legal observers promised the public that the mere indictment of the Trump Organization concerning tax fraud, even before a conviction, would be “devastating” and “doom” the company, likely forcing it into bankruptcy. The case came, it went, the company got fined, and we all moved on, with the Trump Organization still very much operating.

Second, there have been claims in recent weeks that this is a “weak” case, perhaps because people like me have raised questions about the strength of elements of the evidence. It is important to be clear-eyed about the strengths and weaknesses of any legal case, but every interesting or high-profile criminal case has challenges — factually, legally, usually both. This particular case is under an extraordinary microscope, so it is getting more attention than any other prosecution, but none of these observations — from me or others — means that the DA’s office will lose this case. At this point in time, we simply do not know.

Relatedly, there has been considerable anxiety in recent weeks among many people about whether this case could somehow drain public support for other prospective criminal cases that might be filed by the Justice Department or the Fulton County district attorney’s office in Georgia, but we should resist the urge to make predictions on this point. Right now, we have a real criminal case pending, and it makes little sense to judge it against prospective criminal cases that may or may not materialize and, even assuming they emerge, whose details we do not know at this time. Even if Trump is indicted on more serious offenses in the near future, it is hard to imagine that many people of good faith would care which order the cases were filed in.

In short: Take a deep breath. Drink some water. Get some sleep. We have a long way to go.

What to Make of the Case Against Trump