NY: Trump on Trial!

[Fmr. Gov. NickG]

Given the number of counts, is it possible he’s been indicted for stuff unrelated to Stormy Daniels?
Like, at some point weren’t they investigating a wide range of tax fraud stuff?

[Fmr. Gov. NickG]

I don't understand how anyone can have a good-faith position on this until we know what the charges are.

If all the charges are tied up in classifying a hush money payment as a campaign finance violation, I would agree this is extremely murky and probably should not be prosecuted.

But hasn't there been a lot of speculation that Bragg has evidence and witnesses that have not been made public?  
For all we know, Trump could have been indicted for armed robbery and animal abuse.

[Fmr. Gov. NickG]

Does anyone know when we will actually be able to read the official charges?

[Fmr. Gov. NickG]

He has just pleaded not guilty

Not guilty to what charges?? The reporting on this is terrible.  How can you report the plea but not the charges? We already knew he plead not guilty to everything, the only interesting question is what he's being charged with.

[Fmr. Gov. NickG]

34 class E felony charges in 2016 falsifying business records, conspiracy to cover up campaign finance fiolation

If that's really all there is, this case is pretty pathetic.

[Fmr. Gov. NickG]

The daughter worked on the Biden-Harris campaign.

Most people's daughters worked on the Biden-Harris campaign. 
Have you seen the poll results for millennial women?

[Fmr. Gov. NickG]

https://twitter.com/NBCNews/status/1643338340333236224

Yeah, this is really disappointing.  It's just 34 of the exact same "falsifying business records" charge (presumably 34 times the same payment was recording in the record books) "with intent commit another crime and aid and conceal the commission thereof", with no indication what this other crime might be.

[Fmr. Gov. NickG]

Apparently the next hearing has been set for December 4?!?

[Fmr. Gov. NickG]

Bragg's office has also released a "statement of facts" which is a little more illuminating on the nature of the accusations.  

A few interesting details:
- It sounds like Trump actually had Cohen pay off another woman in addition to Daniels.  Maybe Karen McDougal?
- There's also mention of a doorman alleging Trump had an out-of-wedlock child who was almost paid off until the story was determined to be untrue.
- It seems Trump is only being charged for falsifying the compensation made to Cohen, not the money paid to the women
- Cohen was paid in monthly installments. This may be the reason there are 34 charges for multiple different payments. He was actually paid double what was initially agreed to so he could report it on his taxes as income and pay about 50% in taxes.
- The underlying crime is "violating election laws", i.e. "hiding damaging information from the voting public".  Not really clear what election law is alleged to by violated though.  The SOF bolds the words "in coordination with, and the direction of, a candidate for federal office" in citing Cohen's plea agreement.

[Fmr. Gov. NickG]

I've read that according to the arrest record, Trump weights 270 pounds!
(He was usually recorded around 240 when he was President.)

[Fmr. Gov. NickG]

What happened to "just wait until the indictment comes out, surely there's more to it than paying off porn stars guys"?

I was one of these people, and my immediate reaction (in this thread) to reading the indictment is that it’s extremely disappointing and underwhelming. Based on what has now been made public, I think the case is very weak and probably should not have been brought.

[Fmr. Gov. NickG]

What happened to "just wait until the indictment comes out, surely there's more to it than paying off porn stars guys"?

I was one of these people, and my immediate reaction (in this thread) to reading the indictment is that it’s extremely disappointing and underwhelming. Based on what has now been made public, I think the case is very weak and probably should not have been brought.

The idea that the case is "very weak" seems to be based on the fact that Bragg wasn't very specific about what election laws were violated.  But some analysts have said that Bragg was actually being smart in not going into specifics.  If so, the conventional analysis is way off the mark.  

How is this smart? He’ll have to go into specifics at some point.  What specfics could he possibly have? The only laws available to him are very vague. And under the principle of lenity, vagueness in criminal statutes should be resolved in favor of the defendant.  Given this, he’s essentially going to be relying in jury nullification.

[Fmr. Gov. NickG]

What happened to "just wait until the indictment comes out, surely there's more to it than paying off porn stars guys"?

I was one of these people, and my immediate reaction (in this thread) to reading the indictment is that it’s extremely disappointing and underwhelming. Based on what has now been made public, I think the case is very weak and probably should not have been brought.

The idea that the case is "very weak" seems to be based on the fact that Bragg wasn't very specific about what election laws were violated.  But some analysts have said that Bragg was actually being smart in not going into specifics.  If so, the conventional analysis is way off the mark.  

The only laws available to him are very vague.

I think he was being vague not on the laws, but on the crimes Trump committed or sought to commit that supposedly turned the 34 counts into felonies instead of misdemeanors.

I actually don’t think Bragg was vague.  Bragg was pretty specific about the statutes he believes Trump broke, and how he believes Trump violated them.

I’m saying that these statutes themselves are vague, and it is unclear whether the conduct Trump is alleged to have committed constitutes a violation of those laws. And I don’t believe there are any additional specific facts that could be added that would resolve the vagueness, at least not in a way that would merit conviction.

[Fmr. Gov. NickG]

What happened to "just wait until the indictment comes out, surely there's more to it than paying off porn stars guys"?

I was one of these people, and my immediate reaction (in this thread) to reading the indictment is that it’s extremely disappointing and underwhelming. Based on what has now been made public, I think the case is very weak and probably should not have been brought.

The idea that the case is "very weak" seems to be based on the fact that Bragg wasn't very specific about what election laws were violated.  But some analysts have said that Bragg was actually being smart in not going into specifics.  If so, the conventional analysis is way off the mark.  

The only laws available to him are very vague.

I think he was being vague not on the laws, but on the crimes Trump committed or sought to commit that supposedly turned the 34 counts into felonies instead of misdemeanors.

I actually don’t think Bragg was vague.  Bragg was pretty specific about the statutes he believes Trump broke, and how he believes Trump violated them.

I’m saying that these statutes themselves are vague, and it is unclear whether the conduct Trump is alleged to have committed constitutes a violation of those laws. And I don’t believe there are any additional specific facts that could be added that would resolve the vagueness, at least not in a way that would merit conviction.

You're entitled to your opinion, of course, but I find such a conclusion premature at best.  

This is worth a look:

https://www.cnn.com/videos/politics/2023/04/04/bragg-past-case-trump-indictment-miller-analysis-ebof-vpx.cnn

I think it is telling that virtually every Republican, even the most anti-Trump Republicans, have uniformly come to the conclusion that this prosecution is meritless. This was not the case with respect to any of the other pending criminal investigations of Trump, or either of Trump’s impeachments.

Meanwhile, Democrats who want to hold out hope on this case are left more or less saying “well, maybe there’s still something out there we don’t know yet.” Until today, I was one of those people. But based on what we got today, I think the door to this is almost entirely shut.

I despise Trump and believe he has committed many crimes for which he should be and could be successfully prosecuted. But this just isn’t one of them.

Edit: Also, if Bragg truly believes that Trump violated NY state campaign laws, why not prosecute him for violating those laws?

[Fmr. Gov. NickG]

So I'm not a lawyer, but there are really arguments this case is weak? If Bragg's indictment is mainly based on testimony of Cohen and Daniels, that could be weakspot? A convicted felon and p*rn star might not be the most credible witnesses before any jury. That said, I think it's still important this goes to court. Trump should get a fair trial and if guilt can't be proved beyond a reasonable doubt (although to me it's clear he's guilty of that), he won't get convicted.

I see a potential risk here, because if Trump is acquitted in the end, it may make him a martyr again. Though that will be only after the 2024 election. Not to mention more cases related to him are pending, especially the Fulton County stuff and the DOJ investigating January 6.

Cohen’s testimony would be important to establish that Trump deliberately falsified the records. I think Bragg probably has strong evidence on this point, and Trump likely is guity of this, but this by itself is a misdemeanor.

There needs to be an underlying crime to elevate it to a felony.  And this underlying crime is apparently that this was an illegal campaign contribution. Cohen’s testimony could also establish that Trump thought the payment would help his campaign, and thus makes the argument that it could possibly be classified as an in-kind contribution. But whether this sort of payment should ever constitute a campaign contribution is not obvious in the statute. And as this is a question of law and not a question of fact, I don’t think Cohen’s testimony is really relevant to that point.

[Fmr. Gov. NickG]

It's time to get back to the case at hand, after an interruption in the usual programming.

One major problem with the Bragg case is mixing and matching state and federal law. Using purported federal violations to extend the SOL for state violations causes considerable skepticism in elite legal circles. But now a new angle is the state bookkeeping fraud was to facilitate state tax fraud, state on state rather than state on federal.

The NYT article does not get very far in the weeds on this, so indulge me while I speculate a bit. Trump seemed to take a phony tax deduction by converting a non-deductible hush money payment into deductible legal services. Cohen converted a non-taxable reimbursement payment into pseudo taxable income for himself, and thus the gross up payment. The state might have ended up net with more tax revenue, but it was attended by fraud and involved switching taxpayers.

Normally a state would not be too motivated to pursue tax fraud where it made money, but nothing about this case is normal. Wheels within wheels within wheels. The new theory is confusingly pleaded, perhaps by design, but soon the prosecution will have to lay its cards on the table, and spill its guts: 

“What is going to happen now is that the prosecutors are obligated to disclose things in discovery,” he said. “Defense counsel will learn in discovery the nature of the elections laws violations and the tax issues that were raised by Mr. Bragg in his statement of facts.”

https://www.nytimes.com/2023/04/04/us/politics/trump-bookkeeping-fraud-taxes.html

I was really hoping the indictment would involve some allegation of tax fraud.  But going by the statement of facts released by Bragg’s office, it doesn’t.

[Fmr. Gov. NickG]

They scheduled the trial to start March 2024?!?
This case is a joke. Where are the serious prosecutors ready to bring real charges in a timely manner??

[Fmr. Gov. NickG]

I don't see why people view this case as not bad for Trump? Seems pretty likely he'd be found guilty here.

Because he's actually not guilty under an intuitive, plain language interpretation of the campaign finance laws, even if he did everything the prosecutors allege he did.

I say this as someone who believes he should absolutely be convicted of basically everything he charged with in all his other trials, as well as all sorts of other criminal activity he hasn't yet been charged with.

[Fmr. Gov. NickG]

I don't see why people view this case as not bad for Trump? Seems pretty likely he'd be found guilty here.

Because he's actually not guilty under an intuitive, plain language interpretation of the campaign finance laws, even if he did everything the prosecutors allege he did.

I say this as someone who believes he should absolutely be convicted of basically everything he charged with in all his other trials, as well as all sorts of other criminal activity he hasn't yet been charged with.

Just to clarify, even if true, that would make what he's charged with (falsifying business records) a misdemeanor instead of a felony. That might make it "not bad" for some people, but he definitely does not appear to be innocent of that based on what we know (but we'll see what his defense is).

I agree he's definitely guilty of the misdemeanor version.
But can he even be convicted of the misdemeanor version? He's only charged with the felony counts, and I'm not even sure it would be possible to charge him with the misdemeanors given the statute of limitations. (Even setting SoL aside, it would be very, very rare to charge someone with a misdemeanor seven years after the offense took place.)

[Fmr. Gov. NickG]

Note that the federal campaign finance analysis ultimately proved irrelevant to the misdemeanor/felony question, as filing each falsified business record after the first one was done in furtherance of the cover-up established by the first filing; i.e., it would've been chargeable only as a misdemeanor if he'd disguised Cohen's reimbursement payments by doubling them & falsely characterizing them as taxable income just the one time, but then filing the next 33 alike false business records thereby rendered all of them felonies.

I've never heard this argument before, nor has it been mentioned in any of the charging documents filed by Bragg.  And it would surprise me if the law were interpreted such that a misdemeanor could be classified as a felony merely because it's done in furtherance of another misdemeanor.  But I suppose we'll see at trial.

[Fmr. Gov. NickG]

I still don’t think the argument holds up under a plain language interpretation of the statute.  The primary purpose of the first payment is to hide an affair. Hiding an affair not a crime.  The primary purpose of the second and all subsequent payments is also to hide an affair, not hide the first payment.  So also not a crime.

[Fmr. Gov. NickG]

I still don’t think the argument holds up under a plain language interpretation of the statute.  The primary purpose of the first payment is to hide an affair. Hiding an affair not a crime.  The primary purpose of the second and all subsequent payments is also to hide an affair, not hide the first payment.  So also not a crime.

What legal bearing is that alleged primary purpose supposed to actually have here when, already under the relevant governing caselaw interpreting the statute, it doesn't actually even require proof of intent to violate any specific, particular crime? If Trump wants to argue to the jury that he hasn't factually been proven guilty of the charged offense, then he can argue what you're getting at here to the jury at trial so as to appeal to their sense of what maybe shouldn't be a crime, but as a question of NY criminal law, this is really already settled:

https://twitter.com/DanielRAlonso/status/1760896498420547826

Is there any precedent for charging falsifying records as a felony when the underlying crime is a misdemeanor?

[Fmr. Gov. NickG]

I'm curious about the tax fraud allegation.  It seems to stem from the fact that Michael Cohen falsely reporting reimbursements as income.  Even regardless of the fact that this increased the amount Cohen had to pay in taxes, how is this tax fraud on the part of Trump and not just Cohen?

[Fmr. Gov. NickG]

I'm curious about the tax fraud allegation.  It seems to stem from the fact that Michael Cohen falsely reporting reimbursements as income.  Even regardless of the fact that this increased the amount Cohen had to pay in taxes, how is this tax fraud on the part of Trump and not just Cohen?

All 34 counts allege the same charge of falsifying business records in the first degree. For each count, per New York's standard jury instructions the two elements that must be proven are:

(1) That on or about the date in question, Trump made or caused a false entry in the business records of an enterprise; […] and

(2) Trump did so with intent to defraud that included an intent to commit another crime or to aid or conceal the commission thereof.

[…] In terms of part (2) [of the statute], intent to defraud, "courts in the First Department have interpreted this culpable mental state broadly. Intent to defraud is not constricted to an intent to deprive another of property or money. In fact, 'intent to defraud' can extend beyond economic concern. Nor is there any requirement that a defendant intend to conceal the commission of his own crime; instead, 'a person can commit First Degree Falsifying Business Records by falsifying records with the intent to cover up a crime committed by somebody else.'" People v. Trump 2024 NY Slip Op 30560(U). […]

As part of establishing the second element of each falsifying records charge, DANY must prove that Trump intended to commit, aid, or conceal another crime—in this case, […] New York tax law. Importantly, DANY does not have to prove that Trump actually violated [New York tax law], but rather that by falsifying (or causing the falsification of) business records he had the intent to commit, aid, or conceal the commission of such crime(s). […]

For the purposes of tax violations, Bragg relies on two related tax provisions: New York Tax Law §§ 1801(a)(3) & 1802. Section 1801(a) sets out relevant tax fraud acts, with subsection (3) prohibiting "knowingly suppl[ying] or submit[ting] materially false or fraudulent information in connection with any [tax] return, audit, investigation, or proceeding." The tax fraud includes four elements: (1) a tax document filed, submitted or supplied; (2) falsity; (3) materiality; and (4) intent (willfulness). Any person who commits a tax fraud act, including under 1801(a)(3), is guilty, at a minimum, of criminal tax fraud in the fifth degree, a Class A misdemeanor crime under Section 1802, where the tax liability is less than $3,000. No additional mens rea is required, such as an intent to evade taxes or defraud the state. In this case, the primary alleged tax violation was Cohen falsely declaring the reimbursement as income, which artificially increased his tax liability. As Justice Merchan already found, however, an allegation of tax fraud where the state "was not financially harmed … and instead would wind up collecting more tax revenue" does not preclude the tax violation from being a predicate act for the first degree falsification of business records.

That explains why it might not matter that Cohen's taxes increased.  It doesn't explain why Trump would be the one charged with tax fraud and not just Cohen.

[Fmr. Gov. NickG]

I'm curious about the tax fraud allegation.  It seems to stem from the fact that Michael Cohen falsely reporting reimbursements as income.  Even regardless of the fact that this increased the amount Cohen had to pay in taxes, how is this tax fraud on the part of Trump and not just Cohen?

All 34 counts allege the same charge of falsifying business records in the first degree. For each count, per New York's standard jury instructions the two elements that must be proven are:

(1) That on or about the date in question, Trump made or caused a false entry in the business records of an enterprise; […] and

(2) Trump did so with intent to defraud that included an intent to commit another crime or to aid or conceal the commission thereof.

[…] In terms of part (2) [of the statute], intent to defraud, "courts in the First Department have interpreted this culpable mental state broadly. Intent to defraud is not constricted to an intent to deprive another of property or money. In fact, 'intent to defraud' can extend beyond economic concern. Nor is there any requirement that a defendant intend to conceal the commission of his own crime; instead, 'a person can commit First Degree Falsifying Business Records by falsifying records with the intent to cover up a crime committed by somebody else.'" People v. Trump 2024 NY Slip Op 30560(U). […]

As part of establishing the second element of each falsifying records charge, DANY must prove that Trump intended to commit, aid, or conceal another crime—in this case, […] New York tax law. Importantly, DANY does not have to prove that Trump actually violated [New York tax law], but rather that by falsifying (or causing the falsification of) business records he had the intent to commit, aid, or conceal the commission of such crime(s). […]

For the purposes of tax violations, Bragg relies on two related tax provisions: New York Tax Law §§ 1801(a)(3) & 1802. Section 1801(a) sets out relevant tax fraud acts, with subsection (3) prohibiting "knowingly suppl[ying] or submit[ting] materially false or fraudulent information in connection with any [tax] return, audit, investigation, or proceeding." The tax fraud includes four elements: (1) a tax document filed, submitted or supplied; (2) falsity; (3) materiality; and (4) intent (willfulness). Any person who commits a tax fraud act, including under 1801(a)(3), is guilty, at a minimum, of criminal tax fraud in the fifth degree, a Class A misdemeanor crime under Section 1802, where the tax liability is less than $3,000. No additional mens rea is required, such as an intent to evade taxes or defraud the state. In this case, the primary alleged tax violation was Cohen falsely declaring the reimbursement as income, which artificially increased his tax liability. As Justice Merchan already found, however, an allegation of tax fraud where the state "was not financially harmed … and instead would wind up collecting more tax revenue" does not preclude the tax violation from being a predicate act for the first degree falsification of business records.

That explains why it might not matter that Cohen's taxes increased.  It doesn't explain why Trump would be the one charged with tax fraud and not just Cohen.

Trump is not charged with tax fraud. Trump is charged with attempting to conceal Cohen's tax fraud.

As I would read it, Trump didn't falsify records to conceal Cohen's tax fraud; rather, Cohen committed tax fraud to conceal Trump's falsification of records.