As I’ve written before, this case, the first criminal trial against a former president, makes me nervous. It’s not because President Trump’s efforts are focused on buying silence about porn star relationships. Seeing the payment schedule means understanding that Trump wasn’t just trying to keep his sordid behavior a secret from his wife — he was bragging about grabbing women’s private parts. He wanted to make sure that voters who only heard about his disgusting behavior didn’t know any more. Trump conspired to keep voters from knowing the truth about him. This is not easy, it is serious.
That’s not because there’s no potential crime involved here. Exists under federal law. Federal election campaign law prohibits corporations from making contributions to election campaigns or from making contributions in excess of legal limits. The payments to Stormy Daniels violated both rules, and Trump’s former lawyer, Michael Cohen, pleaded guilty and served time in prison on those charges and more. Because Mr. Cohen has said he acted at Mr. Trump’s direction and in Mr. Trump’s interests, it would be appropriate for federal prosecutors to indict Mr. Trump after Mr. Trump leaves office and becomes the subject of prosecution. It should have been. they didn’t.
This cleared the way for Mr. Bragg to pursue the same conduct using creative interpretations of New York state law, which allayed my concerns. A grand jury indicted Trump on charges of falsifying Cohen’s business records in the form of fake invoices to repay hush money payments and accompanying documents. Generally, falsifying business records is a misdemeanor under New York state law. However, if the falsification was done to conceal fraud or another crime, it could be upgraded to a felony.
And what is the alleged crime that elevates President Trump’s actions from a misdemeanor to a felony? Bragg cited the federal election law for which Cohen was convicted, the New York state election law that prohibits conspiring to “promote or prevent the election of any person to public office” by illegal means, and New York state election law. We identified three tax laws. Payments to Cohen were made “in gross amounts,” allowing Cohen to avoid tax liability.
In February, New York State Supreme Court Justice Juan Marchand rejected Mr. Trump’s motion to dismiss Mr. Bragg’s charges on the grounds that the crimes were not sufficient to constitute a felony. He dropped the possibility of a fourth charge.
Therefore, the case will proceed from Monday. But it’s not hard to imagine that a jury could alk — all it takes to produce a hung jury — shoehorn Trump’s payments to Daniels and, in any case, New Yorkers. The tangential crime of falsifying business records is prohibited to ensure that businesses and investors can trust the financial accuracy of companies operating in the state. How were voters harmed by false bookkeeping entries they had never seen?
Additionally, Cohen, a key witness in the case, has admitted and been convicted of a series of lies, which is likely one reason federal prosecutors did not pursue an election law case against Trump in early 2021. Probably one. Cohen pleaded guilty to lying to Congress about the Trump Tower project in Russia. When he tried to ask for a reduced sentence, prosecutors fought back, claiming he lied during questioning despite promising to cooperate. Most recently, a federal judge denied Mr. Cohen’s bid to be released from court supervision, saying he admitted he lied under oath when he pleaded guilty to tax evasion.
In short, Cohen is a defense attorney’s dream. And while his testimony is not necessary to prove the payoff to Daniels (there is ample documentary evidence of that), it does prove that Trump had the necessary intent to defraud and cover up. could be very important.
Perhaps more ominously, in a situation where Mr. Trump is more likely to be found guilty (we are talking about a Manhattan jury, after all), it would be easy to see grounds for appeal here. But by then, Trump will have become the first presidential candidate to be convicted of a criminal offence. One possibility is whether the “other crimes” covered by New York state law include federal crimes. Mr. Machan said yes, and cited several instances where the crimes included federal and other state offenses, but the laws regarding this were not fully developed.
There’s a good chance — in fact, more likely — that Trump will be convicted. If so, there is a good chance that the conviction will be upheld, but there is a similar possibility. I certainly hope so. However, I am less confident in the charges in this case, especially compared to the charges filed by the two federal prosecutors. And I wish this trial, with its turbulent facts, had not been the first.
Here I would like to take some advice from Mr. Bragg himself. He said in January that “broader justice may justify moving forward with another case.” It’s already too late.
