By Marjorie Cohn / Truthout
On March 30, Donald J. Trump was charged in New York with 34 felony counts of “Falsifying Business Records in the First Degree,” for attempting to hide hush money payments to porn star Stormy Daniels. In the historic Indictment and accompanying Statement of Facts, Manhattan District Attorney Alvin Bragg has amassed a strong case against Trump. Statements of Facts, which provide a road map of the case, are frequently used in complex white-collar crime cases.
This is the first sentence of the Statement of Facts:
The defendant DONALD J. TRUMP repeatedly and fraudulently falsified New York business records to conceal criminal conduct that hid damaging information from the voting public during the 2016 presidential election.
The Indictment alleges that Trump made false entries in business records “with intent to defraud and intent to commit another crime and aid and conceal the commission thereof,” in violation of Penal Law section 175.10. Each count carries a maximum of four years in prison.
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While the Indictment doesn’t list the other crime(s) that Trump allegedly intended to commit, Bragg held a news conference after Trump’s arraignment on April 4, in which he further explained the premise of his case.
Two Hush Money Schemes
In August 2018, Trump’s lawyer and fixer Michael Cohen pleaded guilty in the Southern District of New York to felony charges of tax fraud and violations of election law. His crimes related to his role in schemes to prevent Daniels and former Playboy model Karen McDougal from speaking publicly about their prior sexual relationships with Trump while he was married.
Cohen made a $130,000 payment to Daniels. American Media Inc. (AMI), which owned the National Enquirer tabloid, paid McDougal $150,000. AMI was engaged in a “catch-and-kill” operation in which AMI bought exclusive rights to McDougal’s story with no plans to actually publish it.
In its sentencing memo, the U.S. Attorney in the Cohen case cited his admissions that he “acted in coordination with and at the direction” of Trump “for the principal purpose of influencing the election.” Cohen will likely be Bragg’s star witness in his case against Trump.
On October 7, 2016, about a month before the presidential election, the “Access Hollywood” tape, in which Trump stated that he could grope women without their consent, became public. “[E]vidence shows that both the Defendant and his campaign staff were concerned that the tape would harm [Trump’s] viability as a candidate and reduce his standing with female voters in particular,” the Statement of Facts in Trump’s case says.
Trump told Cohen to delay making the payment to Daniels until after the election, “because at that point it would not matter if the story became public,” according to the Statement of Facts. Cohen tried to delay the payment but “with pressure mounting and the election approaching, [Trump] agreed to the payoff.” But Trump didn’t want to make the payment himself.
Cohen opened a shell company and transferred $130,000 to Daniels’s lawyer 12 days before the election. Trump and his trust reimbursed Cohen with 12 monthly checks during 2017 for the $130,000 plus additional monies totaling $420,000. Some of that money was to reimburse Cohen for additional taxes he would have to pay. Trump claimed it was payment for legal services but there was no retainer agreement and Cohen did not provide Trump with legal services during 2017.
“Each check was processed by the Trump Organization, and each check was disguised as a payment for legal services rendered in a given month of 2017 pursuant to a retainer agreement,” the Statement of Facts says. “The payment records, kept and maintained by the Trump Organization, were false New York business records.”
When AMI made the $150,000 payment to McDougal, it falsely labeled the transaction in its records. Cohen was involved in arranging that payment as well. In September 2018, pursuant to a non-prosecution agreement with the government, AMI admitted that it had made payments to McDougal to ensure that she “did not publicize damaging allegations” about Trump “before the 2016 presidential election and thereby influence that election.”
David Pecker, the CEO of AMI, had agreed to help the Trump campaign, promising to act as the “eyes and ears” of the campaign and look out for negative stories about Trump. Pecker will also be a strong witness for the prosecution.
Falsifying Business Records
Falsifying Business Records under New York Penal Law section 175.05 is a misdemeanor. To secure a conviction, the prosecution must prove that Trump, with an intent to defraud, either made a false entry in his records or directed a subordinate to do so.
In order to elevate the crime to a felony under section 17.10 , the prosecution must additionally prove that Trump’s intent to defraud included an intent to commit another crime, or an intent to aid or conceal the commission of that second crime.
The Indictment does not specify what additional crime Bragg plans to rely on for the 34 felony counts. But during his press conference, Bragg said that New York state law doesn’t require him to identify the underlying crime in the Indictment.
Bragg did however mention three separate offenses that could be used to support felony convictions.
First, New York election law punishes conspiracy to promote a candidacy by unlawful means. Bragg was likely referring to New York Election Law section 17-52, which states:
Any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor.
Second, federal election law limits individual campaign contributions and the prosecution could argue that the $130,000 payment to Daniels exceeded those limits. This is one of the crimes to which Cohen pleaded guilty.
Third, tax law requires that people accurately report taxable income. Trump, Cohen and Trump Organization Chief Financial Officer Allen Weisselberg structured the repayment of the $130,000 to Daniels to minimize tax consequences to Cohen, according to the Statement of Facts: “The participants also took steps that mischaracterized, for tax purposes, the true nature of the payments made in furtherance of the scheme.”
Bragg’s office frequently prosecutes cases of falsifying financial records. Since Bragg became Manhattan District Attorney a year ago, his office has prosecuted 29 defendants before Trump for that offense.
At Trump’s arraignment in the New York Supreme Court — the name for the trial courts in New York — he was informed of the charges against him and pleaded not guilty. Judge Juan Merchan released Trump “on his own recognizance” — without requiring him to post bail.
Prosecutor Christopher Conroy cited Trump’s “recent public statements threatening our city, our justice system, our courts, and our office.” Conroy said that Trump “has made a series of threatening and escalating communications,” including “irresponsible social media posts that target various individuals involved in this matter, and even their families.” Trump’s statements, Conroy asserted, “threatened potential death and destruction … and World War III … if these charges were brought and he was indicted.” In addition, Conroy noted, Trump’s statements addressed the grand jury directly and “disparaged witnesses” who reportedly took part in the investigation. Trump also threatened the district attorney’s office, “including posting a picture that depicts Mr. Trump wielding a baseball bat at the head of the district attorney.”
While Merchan did not impose a gag order on Trump, the judge set some parameters and warned that he would “have to take a closer look” if the parties didn’t abide by them. Judge Merchan said he “would encourage counsel on both sides to speak to their witnesses and the defendant” and “remind them” to “please refrain from making comments or engaging in conduct that has the potential to incite violence, create civil unrest, or jeopardize the safety or well-being of any individuals.” In addition, “please do not engage in words or conduct which jeopardizes the rule of law, particularly as it applies to these proceedings in this courtroom.”
The parties discussed a protective order restricting the ways in which Trump could use the discovery after the prosecution provides it to the defense. Discovery includes documents, witness statements and other evidence the prosecution has developed in the case. Prosecutor Catherine McCaw told Judge Merchan that the prosecution and defense had already agreed to the following terms:
- Trump “may not use any of the materials the prosecution produces for any purpose other than to prepare a defense.”
- Trump “will be permitted to review certain sensitive materials only in his attorney’s office, and he may not take copies of the documents” or notes about them out of his lawyers’ offices.
- Trump “may not provide the materials he receives through the discovery process to any third party, including the press, and he may not post them to social media.”
McCaw stated that once the judge has issued the protective order, the prosecution will start “rolling productions of discovery” to the defense in three stages:
- About a week after the protective order is in place, grand jury minutes and exhibits, witness statements, etc., will be provided.
- Within 65 days, material provided “will consist of subpoena compliance, other witness materials, as well as some police documents and other odds and ends.”
- Finally, materials such as district attorney’s office email messages will be provided.
Judge Merchan set a schedule for the filing of motions. Defense motions must be filed no later than August 8 and the prosecution’s response is due by September 19. Judge Merchan will rule on the motions in open court on December 4.
Trump’s lawyers are likely to file a motion for change of venue to move the case out of lower Manhattan, a motion to dismiss for selective prosecution, and a motion for a bill of particulars to learn which crime(s) Bragg intends to rely on for the predicate offense. The defense will probably argue that the statute of limitations has run on these crimes, even though Trump couldn’t be prosecuted while he was president. They may also try to get the case moved from New York State court to federal court in order to ask a federal judge to halt the state proceedings.
While the prosecution indicated it will seek a trial date of January 5, 2024, the defense said that spring of 2024 might be more realistic and the judge agreed that January might be too soon since the defense hasn’t yet received the discovery.
Trump Will Likely Be Charged in at Least Three Other Cases
There are at least three other more serious cases against Trump that are being investigated.
Special counsel Jack Smith is leading the Department of Justice’s investigation of the events leading up to the January 6 insurrection, including the use of fake electors.
Smith is also investigating Trump’s retention and mishandling of classified documents at his Mar-a-Lago home.
Fulton County, Georgia, District Attorney Fani Willis directed a special grand jury investigation into Trump and his allies’ actions to overturn Joe Biden’s election victory in Georgia. She is considering conspiracy and racketeering charges.
It was a matter of hours after Judge Merchan arraigned him that Trump declared, “I have a Trump-hating judge.” He said that Bragg was a “criminal” who was out to “get him.”
In his speech from Mar-a-Lago, Trump also mentioned “this lunatic special prosecutor named Jack Smith.” And he charged that Fani Willis is “doing everything in her power to indict me over an absolutely perfect phone call, even more perfect than the one I made with the president of Ukraine.” Trump was referring to the 2021 call in which he prevailed upon Georgia Secretary of State Brad Raffensperger to “find” him 11,780 votes, the number required to exceed Biden’s vote tally in Georgia.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, and a member of the national advisory boards of Assange Defense and Veterans For Peace, and the bureau of the International Association of Democratic Lawyers. Her books include Drones and Targeted Killing: Legal, Moral and Geopolitical Issues. She is co-host of “Law and Disorder” radio.