To the editor:
There are lots of legal questions concerning the case against our former president, but at some point, the prosecution will have to specify what particular actions Trump took or directed someone to take, and for what purpose. Rather than reiterate the issue of whether a New York state misdemeanor prosecution for falsifying business records can be raised to a felony based on a federal crime of improper campaign donations, it is important to understand that there are multiple possible arrows in the prosecution’s quiver.
There are numerous New York statutes relating to election fraud and also possible issues concerning New York State tax fraud by characterizing the payments to his lawyer, Michael Cohen, as legal fees and thus deductible from the income of Trump or the business entity that paid them. The defense, through a bill of particulars and discovery motions, is entitled to know the precise legal theory that New York will present to the jury and the court concerning what actions Trump took to misrepresent his payments (the elements of the crime); what statute that violated (the New York state statute is spelled out in the indictment); and, most importantly, what is the theory and the actions that raise those acts to a New York state felony by using the false business records to commit another crime.
All said and done, Trump will not go to jail if convicted of only the misdemeanor, and probably would not go to jail even if the charge is raised to a felony. If he defends the case on the basis that he was embarrassed by his affair and didn’t want his son and wife to know, and if he is offered a misdemeanor plea to merely altering business records, it would be a stretch for the judge to give him jail time.
But we have a strange, unique defendant, who has already said there was no affair, and he was being blackmailed to pony up hush money. He has already opened himself up to Stormy Daniels’ testimony before the jury to show there was a tryst, as well as the testimony of his convicted in-house accountant, and the testimony of Cohen who pleaded guilty and went to jail for his actions. The payments are well documented, which he can only deny by saying they are fabricated or he knew nothing about them. So his conviction on the misdemeanor alteration of business records should be a lay-down. The obvious next question is what crime the prosecution can prove was being committed with the use of the false filings.
The melding of a state and federal charge in a state is new law, but there are other statutes in New York that could be used to show the second crime, from possible New York state tax fraud to election law violations. A tax fraud prosecution, state or federal, faces the problem that the amount of tax that would be owed would be minimal, probably well below the threshold that most prosecutors would deem worthy of pursuing. Being president should not change how a defendant is treated.
If New York wants to give the jury multiple theories, the defense will definitely ask them to specifically state what crimes Trump is charged with. If they decide to go with the combination of a state and federal crime. One of which is federal election campaign fraud, which the state has no jurisdiction over. The case will be long, drawn out, and only be resolved in the Supreme Court. New York can prove the misdemeanor, but everything else is legally hazy.
Having tried many criminal cases with politicians and high profile individuals, the one bit of advice I give them before any analysis of the facts and the law is that if they plead guilty, it is virtually impossible to ever claim they are innocent. When a guilty plea is accepted by the court, the judge interrogates the defendant as to his health, state of mind, and what exactly it is that he did, and his state of mind when he did it. That testimony virtually precludes any later mealy-mouthed explanation from the defendant.
With Trump, he seems incapable of acknowledging he ever did anything wrong. The best example is his “perfect call” to the Georgia Secretary of State asking him to “find” the precise amount of votes to overturn Biden’s win in the state. Politically and legally, he has put himself in a box, but as noted above, he probably could still negotiate a misdemeanor plea with little effect on his followers. By going to trial, he risks the gory details of what he did and how he attempted to cover it up. Most telling will probably be the testimony of the publisher of the Enquirer. He may win on the law if New York tries to link the federal and state crimes, but his personal actions will be displayed ad nauseam.
One thing that may strangely work to his benefit is the future indictments, which are much more serious, and will draw attention from the New York case. Also, the multiple count indictment is meaningless except for a headline. Simply put, he covered the payment by multiple individual acts which were all part of the whole. There are other interesting legal issues, such as whether the misdemeanor false filing charge is a lesser included offense in the present indictment, etc. These will be pushed strongly, and there is a more minor chance that the jury says “Ho hum,” and thinks the charges are too minor and too old to be charged. This is different from a motion based on the statute of limitations which a judge will decide.
We will see as more facts and possible testimony comes out. It is a boring case except for the details of the assignment. Republicans will have a lot to work with to show this is a purely political prosecution, and they have a point, although his concealment probably slightly helped him to win the presidency.
