The core issue was Trump’s motion to dismiss the entire case. Point by point, Justice Juan Merchan shot down each Trump argument and, by implication, the critics who scorned the case. His ruling put to rest the notion that this is a picayune matter. “The Court agrees that the instant matter involved a complex investigation. Further, while it is true that the charges involve the lowest level felony and no one suffered physical harm, it can hardly be said that the allegations are not severe.” He emphasized, “The People claim that the Defendant paid an individual $130,000 to conceal a sexual encounter in an effort to influence the 2016 Presidential election and then falsified 34 business records to cover up the payoff.” In short, the judge wrote; “Those are serious allegations.”
The media routinely calls this the “hush money” case. But the payment of hush money is neither illegal nor relevant. It is the attempt to illegally conceal damaging information from voters that is at issue. If the “big lie” about a stolen election was the central feature of Trump’s attempted coup after the 2020 election, the lie about the nature of his payments was an effort — just days after the “Access Hollywood” revelation — to con voters in 2016.
The judge specifically held that Trump (infamous for delaying his cases) did not suffer any deprivation of due process rights because of the district attorney’s office. The case is going to trial on March 25. Period.
Merchan also explained that the elevation to felony counts was fully justified under New York law: The falsification of business records rises to a felony when “his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.” (The allegation of lying to conceal other crimes echoes the obstruction charge in the Mar-a-Lago case; the coverup is at least as bad as the underlying crime.)
Merchan held that “the invoices, checks, and general ledger entries are in fact ‘business records’” under the statute. (“The invoices, checks, and general ledger entries created in 2017, that were kept and maintained by the Trump Organization, reflected payments made to [then-Trump-lawyer Michael] Cohen for a scheme that was discussed and implemented by Cohen and the Defendant in 2015 and 2016.”) Noteworthy: The scheme originated before Trump became president and was unrelated to his job as president.
As for lifting the counts to felonies, Merchan cited prior cases (yes, this is nothing new) to show that all that is required is intent to commit other crimes. Of those on offer here — federal election finance laws, state election finance laws, tax laws (by grossing up amounts to Cohen) and causing other false records (i.e., for the “catch and kill” scheme) — Merchan found all but the last sufficient to present to the jury. That gives Bragg three solid theories, with factual support, to present in support of his felony charges.
Bragg also presented evidence of Trump’s intent to defraud sufficient to defeat any motion to dismiss. “The People submit that Defendant’s ‘intent to defraud’ was established in the Grand Jury by evidence that Defendant sought to suppress disclosure of information that could have negatively impacted his campaign for President of the United States and that he made ‘false entries in the relevant business records to prevent public disclosure of both the scheme and the underlying information.”
Merchan dismissed a favorite Trump complaint: selective prosecution. The sole instance Trump cited — campaign violations by Hillary Clinton, his 2016 opponent — as evidence he was singled out, Merchan said, was not remotely similar. Moreover, the judge pointed to plenty of other cases, 437 to be exact, in which falsification of business records was charged as a felony because the defendant intended to conceal other crimes.
And that is where Bragg critics falter. Rather than go hunting for something to pin on Trump, Bragg made the correct decision not to exempt Trump from charges 437 other New Yorkers faced simply because he is now a former president. This goes to the heart of the rule of law. Former presidents enjoy no get-out-of-jail-free cards either for conduct before or during their presidency. (The Supreme Court will likely decide whether Trump has immunity for alleged crimes committed during his presidency.) If it were otherwise, we would countenance a special status simply for a small class of former presidents.
Do we really want criminals running for president so they might avoid ever being prosecuted? And to the extent critics think this is just a “small crime,” their beef is with the people of New York who decided this conduct constitutes a felony.
That’s the case: easily explained to a jury, resting on sound facts and justifying felony charges that have been brought against other defendants. As Merchan explained at the hearing, Bragg did not choose to jump ahead of other cases. (To the contrary, he deferred to others should they have started in early March.) Trump’s excessive delays and appeals (all losers, to date) pushed back other cases. The judge therefore slotted the case for late March. The people of New York have every right and expectation that their laws be enforced.
Bragg must still prove all the elements of the crimes beyond a reasonable doubt. Though Cohen is a shaky witness, to put it mildly, evidence appears to support the key contentions. Manhattan jurors sworn to follow the facts and apply them to the law will be the ultimate deciders. Those who think it’s wrong to prosecute Trump will be weeded out during jury selection. And then Trump will face a jury of his peers. No wonder he is so angry at the prospect of going to trial.
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