On May 30, 2024, Donald Trump was convicted of 34 felony counts of falsified business records that allegedly abetted crime(s) unstated in the March 30, 2023 indictment. The jury was instructed to choose between three candidates for the other crime; their choices were not disclosed in the conviction. During the course of the trial, legal experts have struggled to deduce the nature of the underlying crime. Manhattan District Attorney Alvin Bragg played his cards close to the vest; as CNN analyst and Bragg’s former colleague Elie Honig stated:
Inexcusably, the DA refused to specify what those unlawful means actually were — and the judge declined to force them to pony up — until right before closing arguments. So much for the constitutional obligation to provide notice to the defendant of the accusations against him in advance of trial. (This, folks, is what indictments are for.)
Pieces to this puzzle are scattered about the Internet address in bits and pieces. This is my attempt to pull those sources together to adequately outline the main issues of the case.
Porn actress Stormy Daniels sought money in return for staying silent about an alleged tryst between her and Trump. David Pecker, then-CEO of the National Enquirer‘s parent company American Media, Inc., had a history of purchasing life stories in return for non-disclosure agreements (NDAs) on behalf of various personalities, even a couple of candidates for public office (more on that later), on grounds that good PR for those celebrities is good business for the company. He had made such agreements with Karen McDougal (no relation to Susan) regarding an alleged affair with Trump, and Trump World Tower doorman Dino Sajudin over a now-discredited story that Trump had fathered out of wedlock.
Pecker balked at dealing with Daniels. He would testify that getting involved with a porn actress would be bad for relations with the more family-friendly retailers like Walmart that carry its publications. Trump attorney Michael Cohen took it upon himself to set up a shell corporation to buy the rights himself and to draft an NDA between the shell company and Daniels.
In 2017 Cohen was paid $35,000 per month in 11 installments. The payment schedule was worked out by Trump Organization CFO Allen Weisselberg, who prosecution did not call on to testify. Invoices, signed checks, and accounting records denoted the payments as a retainer fee. Cohen prepared the invoices. Trump Organization employee Deborah Tarasoff made entries to the voucher system based on information in the invoices and prepared the checks; she would later testify that Trump had no direct involvement in this process. Trump would receive a large batch of checks to sign at any given time, the checks to Cohen among them.
Cohen was later investigated for a number of unrelated financial crimes including bank fraud. As part of a 2018 plea bargain he pleaded guilty to a charge of making an excessive campaign contribution. The FEC took no action against Cohen. The FEC and the Southern District of New York declined to pursue cases against Trump, as did Alvin Bragg’s predecessor Cyrus Vance, Jr. Bragg’s case revolves around claims that federal campaign law violations that he cannot directly prosecute abetted state crimes that he can. Each charge in the indictment alleges a violation of a Class E felony under Penal Law §175.10:
A person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.
The description of each charge follows the same pattern as that of the first:
The defendant, in the County of New York and elsewhere, on or about February 14, 2017, with intent to defraud and intent to commit another crime and aid and conceal the commission thereof, made and caused a false entry in the business records of an enterprise, to wit, an invoice from Michael Cohen dated February 14, 2017, marked as a record of the Donald J. Trump Revocable Trust, and kept and maintained by the Trump Organization.
What is missing here? The indictment fails to fulfill certain requirements stated in Criminal Procedure Law §200.50:
An indictment must contain…A plain and concise factual statement in each count which, without allegations of an evidentiary nature…asserts facts supporting every element of the offense charged and the defendant’s or defendants’ commission thereof with sufficient precision to clearly apprise the defendant or defendants of the conduct which is the subject of the accusation…
Each of the charges fails to identify a) who the defendant allegedly sought to defraud, b) the allegedly false statement in question, and c) what other crime the allegedly false statement was intended to “aid and conceal.” These omissions violate not only New York state law but the Sixth Amendment of the United States Constitution guarantee that those accused of crimes “be informed of the nature and cause of the accusation.” This also impacts Fifth Amendment protection against double jeopardy as well as the judge’s ability to assess what testimony is and is not relevant to the trial.
Bragg later filed a Statement of Facts, which sheds some light on the DA’s charges neglected by the indictment. The false records misdemeanor charges stem from the assumption that Cohen had no retainer agreement with Trump, thus the record-keeping notations that the payments to Cohen were for a “retainer agreement” were false. The issue arises during the third day of Cohen’s testimony. Defense argued that retainer agreements do not need to be in writing to establish attorney-client privilege, prosecution argues otherwise. Defense attorney Emil Bove cited several cases to support his assertion that §1215 and caselaw establish that a Written Letter of Engagement (what puts a retainer agreement in writing) defines “whether and to what extent a retainer letter is necessary to permit an attorney to recover fees from the client…[and] not about whether, as a matter of ethics rules and attorney’s ethical obligations, the Retainer Agreement is necessary.” Prosecution and Merchan disagreed.
Central to upgrading misdemeanor record-keeping charges to felonies is the claim that Cohen’s payment to Stormy Daniels was an illegal campaign donation. The Statement of Facts cites a source that cannot legally serve as evidence: Cohen’s 2018 plea bargain with Federal officials. During the second day of Cohen testimony, Judge Merchan himself instructed that “Mr. Cohen’s plea is not evidence of the defendant’s guilt.”
As for Cohen’s guilt…fictional plea bargains are a genuine and widespread phenomenon. There is no objective means to determine whether or not Cohen believed his own plea (having motive to lie to avoid lengthy jail time), or even if the Federal officials who arranged the plea deal believed it.
(In an earlier post I called for investigations into possible ties between the Manhattan DA’s office and the Feds involved in the Cohen plea bargain. Enquiring minds need to know.)
What matters is the law itself. Bragg does not cite a Federal law that supports the claim that the non-disclosure agreement payment qualifies as a campaign donation, not in the Statement of Facts, and not during the trial.
Former FEC chairman Bradley Smith states that any expense that has both personal and campaign purposes cannot be regarded by law as a campaign expense. The FEC’s own website backs up Smith:
Irrespective test Commission regulations provide a test, called the “irrespective test,” to differentiate legitimate campaign and officeholder expenses from personal expenses. Under the “irrespective test,” personal use is any use of funds in a campaign account of a candidate (or former candidate) to fulfill a commitment, obligation or expense of any person that would exist irrespective of the candidate’s campaign or responsibilities as a federal officeholder.
More simply, if the expense would exist even in the absence of the candidacy or even if the officeholder were not in office, then the personal use ban applies.
The Daniels allegation threatened not only his campaign but also his marriage and his TV contract, both of which fall under “personal use.”
Neither the indictment nor the Statement of Facts explain what activity violated the “other crime” that the alleged record-keeping violation allegedly abetted, nor do they explain what New York statute that activity violated. Trump would ultimately be tried for crimes he was not formally charged with. Bragg eventually invoked New York Election Law §17-152: “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.” Let’s look at the components one at a time:
Conspiracy. As Jacob Sullum notes, “ordinarily under New York law, proving a criminal conspiracy requires proving ‘a specific intent to commit a crime.'” Prosecution used the term “catch and kill” to describe legal agreements such as NDAs designed to keep stories out of the press. Pecker had engaged in the practice for decades, on behalf of personalities that prior to the Trump campaign included at least two political candidates, Arnold Schwarzenegger and Rahm Emanuel. In this environment its is spectacularly unlikely that Pecker or other involved parties would perceive any potential illegality in “catch and kill.”
Unlawful means. Prosecution must identify the means, the law(s) allegedly violated by those means, and how those means would “promote or prevent the election of any person to a public office.” The court agreed to three possibilities offered by prosecution: FECA violation (problematic, considering that it is a Federal and not state law), tax law violations (by misreporting Cohen’s income), and causing other documents (such as Cohen’s 1099 form) to be falsified. Sullum discusses those options in detail here. Prosecution did not present evidence that any of these three laws were violated.
Promote or prevent an election. Since cause precedes effect, violations of §17-152 can occur only before an election, yet the multiple-choice conviction options are all activities that occurred after the election.
Judge Juan Merchan instructed that conviction requires unanimity that §17-152 was violated, but the jurors can disagree over how the statute was violated. What charges the jurors picked and how the temporal paradox was dealt with is anyone’s guess. My own theory is that they misunderstood Merchan’s instructions and interpreted the NDA as the §17-152 election interference and that the multiple-choice conviction charges represented means of covering it up in addition to Trump Organization record-keeping. Several months have passed and I have yet to encounter anyone who can explain how post-election activities can interfere with an election’s outcome.
It is a betrayal of trust of the highest order that anyone of any stature can be tried and convicted on ambiguous charges. We must demand that the trial jurors inform the public about what they believed the charges to be and why, and on what basis they voted for conviction. The grand jurors owe us explanations, too – they must explain what felonies they believe they charged Trump with, and whether Alvin Bragg ever brought up the subject of §17-152 which he would later employ as the pretext for felony charges. The ambiguity over this case cannot be allowed to stand.
By a vote of 5-4 SCOTUS rejected a last-ditch appeal to delay sentencing. I can’t find any report on the minority’s rationale, and I can’t figure out what benefit to Trump a delay would accomplish. Honig and constitutional scholar Jonathan Turley agree with the decision, noting that sentencing now opens the gates for the appeals process to begin.
Appeals will certainly address the aforementioned issues revolving around the Fifth and Sixth Amendment and New York’s indictment guidelines, as well as the admissibility of Daniels’ and Pecker’s testimonies. There is also the question of whether or not the Michael Cohen and David Pecker NDAs are protected by the First Amendment.
Now the bookmakers can take bets on how many of the current justices will be replaced by the time the appeal makes its way to SCOTUS.