As I’ve written before, this case — the first criminal trial of a former president — makes me nervous. Not because it centers on Trump’s effort buy a porn star’s silence about their relationship. To look at the timeline of the payments is to understand Trump wasn’t just trying to keep his sleazy behavior secret from his wife — he wanted to make certain that voters who had just heard him bragging about grabbing women’s private parts didn’t learn more about his repulsive conduct. Trump conspired to ensure that the electorate didn’t know the truth about him. This isn’t trivial — it’s serious.
And not because there is not a potential crime involved here. There is, under federal law. The Federal Election Campaign Act prohibits corporate campaign contributions and contributions in excess of legal limits. The payments to Stormy Daniels ran afoul of both rules, and Michael Cohen, Trump’s former lawyer, pleaded guilty and served prison time for those crimes, among others. Because Cohen says he acted at Trump’s direction and for his benefit, it would have been appropriate for federal prosecutors to bring charges against Trump once he left office and was subject to prosecution. They didn’t.
That left the way clear for Bragg to employ a creative interpretation of New York state law to go after the same conduct — and, hence, my anxiety. The grand jury charged Trump with falsifying business records in the form of phony invoices to reimburse Cohen for the hush money payments and accompanying documentation. Ordinarily, falsifying business records is a misdemeanor under New York law. But if the falsification is done with the intent to defraud and to conceal another crime, that can elevate it into a felony.
And what alleged crimes elevated Trump’s conduct from misdemeanor to felony? Bragg has identified three: the federal election law under which Cohen was convicted, a New York state election law that prohibits conspiring “to promote or prevent the election of any person to a public office” through illegal means, and New York tax law because the payments to Cohen were “grossed up” so that Cohen could avoid incurring tax liability.
In February, New York Supreme Court Justice Juan Merchan denied Trump’s motion to dismiss Bragg’s charges on the grounds that those crimes were insufficient to make a felony case; he dropped a fourth potential charge.
So, the case will go forward, starting Monday. But it’s not hard to imagine that jurors could balk — it just takes one to produce a hung jury — at shoehorning Trump’s payments to Daniels, however odious, into the tangential crime of falsifying business records, which was outlawed to ensure that New York citizens, businesses and investors could rely on the financial accuracy of corporations operating in the state. How were voters harmed by false bookkeeping entries they never saw?
Moreover, a key witness in the case, Cohen, is a serial, admitted and convicted liar, perhaps one reason federal prosecutors did not pursue the election law case against Trump in early 2021. Cohen pleaded guilty to lying to Congress about a Trump Tower project in Russia. When he tried to get his sentence reduced, prosecutors resisted, arguing he had lied to them in his interviews after promising to cooperate. Most recently, a federal judge, denying Cohen’s bid to be released from court supervision, said Cohen had admitted lying under oath when he pleaded guilty to tax evasion.
In short, Cohen is a defense lawyer’s dream. And while his testimony isn’t essential to demonstrate the payoffs to Daniels — there’s ample documentary evidence of that — it could be highly relevant to proving that Trump had the necessary intent to defraud and conceal.
Perhaps more ominously, it’s easy to see grounds for appeal here in the more likely event — this is a Manhattan jury, after all — that Trump is convicted — though, by then, he will be the first criminally convicted candidate for president. One possibility: Do the “other crimes” covered by New York law include federal offenses? Merchan said yes, citing several cases in which the crimes included offenses under federal law or in other states, but the law on this is not fully developed.
Trump may well be convicted — in fact, that’s more likely than not. If so, the conviction may well be upheld — same likelihood there. I certainly hope so. But I am less confident about the charges in this case than in the others, especially the two federal prosecutions. And I wish this trial, with its seamy facts, wasn’t the first.
Here I take my guidance from Bragg himself, who said in January, “Broader justice may warrant another case going first.” Too late now.
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