The Statement of Facts
You can find the statement here. The upshot:
Throughout the remainder of the document, Trump is called the Defendant. (I wonder if, when he files his motion to dismiss the charges, he’ll refer to himself as President Donald J. Trump, as he has been doing in the civil matters since he lost the election😂)
We learn all about how Trump, David Pecker (the publisher of the National Inquirer), and Michael Cohen (“Lawyer A”) engaged in what’s been called a “catch and kill” scheme to kill any negative stories about Trump. Basically Pecker would purchase the right to the story and then not publish it.
From August 2015 to December 2017, the Defendant orchestrated a scheme with others to influence the 2016 presidential election by identifying and purchasing negative information about him to suppress its publication and benefit the Defendant’s electoral prospects. In order to execute the unlawful scheme, the participants violated election laws and made and caused false entries in the business records of various entities in New York. The participants also took steps that mischaracterized, for tax purposes, the true nature of the payments made in furtherance of the scheme.
The falsifying of records (basically juggling the books) was quite complicated, involving fake invoices and fake internal ledgers, with some tax fraud thrown in.
You’ve gotta hand it to Trump. He’s good at figuring out how to promote lies and a false image of himself. The scheme and falsifying of records continued into 2017, after he was president, which partly explains why he spent almost no time actually governing. When you’re busy creating and maintaining lies, you don’t have time for much else.
Here’s the thing about a crime like falsifying records: The evidence is mostly documentary and therefore easy to prove. For example:
Each check was processed by the Trump Organization, and each check was disguised as a payment for legal services rendered in a given month of 2017 pursuant to a retainer agreement. The payment records, kept and maintained by the Trump Organization, were false New York business records. In truth, there was no retainer agreement, and Lawyer A was not being paid for legal services rendered in 2017.
In general, documentary evidence is stronger than testimonial evidence, which can be more easily discredited. The best is to have documentary evidence backing up the testimonial evidence, which is what we have here. Also, the fact that some of these facts were offered as part of plea agreements helps establish them as facts (meaning, already proven):
Two parties to this agreement have admitted to committing illegal conduct in connection with the scheme. In August 2018, Lawyer A pleaded guilty to two federal crimes involving illegal campaign contributions, and subsequently served time in prison. In addition, in August 2018, American Media, Inc. (“AMI”), a media company that owned and published magazines and supermarket tabloids including the National Enquirer, admitted in a non-prosecution agreement that it made a payment to a source of a story to ensure that the source “did not publicize damaging allegations” about the Defendant “before the 2016 presidential election and thereby influence that election.”
Other examples are offered to show the payoff thing was part of a larger pattern: The conspirators paid off two women, who we know to be Stormy Daniels and Karen McDougal, and they tried to keep a doorman from revealing that Trump fathered an out-of-wedlock child. Under the rules of evidence (which I assume are the same in New York) if the prosecution can show something is part of a larger pattern, it helps prove guilt.
When the doorman story was shown to be untrue, Lawyer A (who is obviously Michael Cohen) asked that it still be suppressed until after the election. That detail helps establish that the goal was to influence the election and not, say, try to keep Melania from learning that Trump was carrying on with porn stars:
When AMI [David Pecker/ National Inquirer] later concluded that the story was not true, the AMI CEO wanted to release the Doorman from the agreement. However, Lawyer A instructed the AMI CEO not to release the Doorman until after the presidential election, and the AMI CEO complied with that instruction because of his agreement with the Defendant and Lawyer A.
This all happened immediately after the Access Hollywood Tape. As Stormy Daniels recently quipped, “One p@$$& grabbed back.”
If you want to know how big of a jerk Trump is, check this out:
The Defendant directed Lawyer A to delay making a payment to Woman 2 as long as possible. He instructed Lawyer A that if they could delay the payment until after the election, they could avoid paying altogether, because at that point it would not matter if the story became public.
But he wasn’t able to delay, so he had to pay her. In addition to showing that Trump tried to stiff her (I know, using the word ‘stiff’ in this context might be ill-advised😂) the passage further demonstrates that it was all about the election and not keeping this from Melania.
When they couldn’t delay and had to actually had to pay Stormy, Cohen agreed to pay but (for obvious reasons) worried he wouldn’t be reimbursed), so Cohen took steps to make sure he’d get paid, which is part of what makes this a very complicated set of transactions.
Another detail: David Pecker was rewarded with a White House visit. As Zelensky later learned, the way to get a White House visit is to help Trump with his propaganda needs. You can also make a lot of money that way, although, as Cohen learned, you may do jail time. Well, criming does carry some risks. Check out how much Cohen made for taking care of that payment:
The TO CFO [Trump Org CFO] and Lawyer A agreed to a total repayment amount of $420,000. They reached that figure by adding the $130,000 payment to a $50,000 payment for another expense for which Lawyer A also claimed reimbursement, for a total of $180,000. The TO CFO then doubled that amount to $360,000 so that Lawyer A could characterize the payment as income on his tax returns, instead of a reimbursement, and Lawyer A would be left with $180,000 after paying approximately 50% in income taxes. Finally, the TO CFO added an additional $60,000 as a supplemental year-end bonus. Together, these amounts totaled $420,000.
More documentary evidence tying Trump directly to the scheme:
The TO CFO memorialized these calculations in handwritten notes on the copy of the bank statement that Lawyer A had provided.
And:
The Defendant signed each of the checks personally and had them sent back to the Trump Organization in New York County. There, the checks, the stubs, and the invoices were scanned and maintained in the Trump Organization’s data system before the checks themselves were detached and mailed to Lawyer A for payment.
After Cohen was searched pursuant to that warrant (leading to his indictment) we have lots of Trump’s lawyers approaching Cohen and encouraging him to “stay strong” and “succeed” by which they mean “Don’t Flip On Trump.” They even told him he was “loved.” (I read Cohen’s book, Disloyal, so I know what happened next! He flipped and he didn’t stay loved.)
The Indictment
Here is the thing: Under New York law, falsifying business records is a misdemeanor, unless the records were falsified in an attempt to cover up a crime, then it’s a felony. Each of the 34 counts were charged as felonies.
The underlying crimes were attempts to defraud voters and violations of state and federal election laws.
Answering Questions
“Does an initial crime actually have to be proven to be convicted of covering up a crime?”
I would have thought that the other crimes would have been alleged alongside felony falsification of business records to get to a felony, but I found this on the New York state court website. To prove this crime, the prosecution needs to prove that the records were falsified with an “intent to defraud that includes an intent to commit another crime or to aid or conceal the commission.” In other words, the prosecutor does not have to prove the underlying crime. All the prosecution has to prove the intent to commit a crime. As lawyer Andrew Leahy observed:
That makes some intuitive sense to me. Flipping it, you wouldn’t want having been wrong about the underlying conduct being a felony to be a defense — right? Like say I went to great lengths to cover up a fraud that turned out not to be a fraud. From a deterrence standpoint you’d want that not to be a defense (I think).”
Right. This has nothing to do with enforcing the laws in other jurisdictions. This has to do with New York making sure that people don’t use New York business to commit crimes elsewhere. It also means that the underlying crime does not have to be proven. What has to be proven is that the records were falsified with the intention of covering up a crime instead of, say, the intention of hiding an affair from a spouse.
Recall that Edwards was acquitted because a jury believed he could have been paying off a woman just before an election to hide the affair from his wife. What makes criminal cases hard is that the prosecution has to prove the crime beyond a reasonable doubt. If the jury has doubts, it must acquit.
In other words, under New York law, the intent to commit a crime under this statute can be proven without proving the crime.
Can the jury return a verdict for misdemeanors if the prosecution doesn’t prove intent to commit other crimes?
Yes. Because the evidence that Trump falsified documents is pretty solid, at the very least we can see 34 misdemeanor convictions for falsifying records and because a misdemeanor, in this case, carries possible jail time, Trump appears to be in deep doo-doo. (Deep doo-doo is a recognized legal term well known to defense lawyers everywhere.)
Will Trump file a motion to dismiss the charges?
I have no doubt he’ll try. Defendants try everything they can. Good defense lawyers try everything they can think of. That’s the job. Because the stakes are so high, the defendant has the right to present every possible argument. I don’t know the odds in New York, but in federal cases, the prosecution wins more than 96% of the time. California appeals succeed about 3% of the time. In other words, because good prosecutors bring airtight cases, once you get as far as an indictment for 34 counts of a crime backed up by documentary evidence, you are generally in deep doo-doo.
But Teri, Some People Are Saying That Bragg’s Charges Are Weak and Trump Will Be Acquitted
Some people are also saying Bragg’s charges are strong. Just Security (published at NYU Law School) documented that prosecuting the falsification of business records to cover up campaign finance crimes is not uncommon in New York.
Legal Facts v. Legal Opinions (or Positions)
Confusing legal facts with legal opinions (or positions) is a common mistake, even among good journalists. Some legal statements are facts, for example, “To prove this crime the prosecutor has to prove each of the following elements beyond a reasonable doubt . . . ” Some are opinions, “Bragg should not have brought this indictment. He should have waited for something stronger.”
The thing about these pronouncements is that nobody knows all of what Bragg’s got. We know this: Bragg doesn’t think his charges are weak. In fact, for the past year in response to intense public pressure, including attacks from former prosecutors, he insisted that he will bring cases when they are ready.
If you’ve been listening to some pundits talking about how weak Bragg’s case is, you may have thought, “This is why Teri kept saying that good prosecutors don’t rush to indict. They make sure their cases are airtight.”
This was what I experienced when handling appeals:
Stage 1: Read the court record and think, OMG my client totally screwed up, what the heck can I possibly do to help? Me:😱
Stage 2: Study the record. 🧐
Stage 3: Think of good arguments. 🤔
Stage 4: Refine my arguments. 🤓
Stage 5: I should win this appeal! 💪
(Appeals in criminal and dependency matters in California have a very low success rate so I kept the client’s expectations realistic.)
The above process can happen in reverse.
Stage 1: OMG my client is totally innocent, was wrongly accused, and all the evidence was inadmissible! I’ll win this appeal 💪
. . .
Stage 5: Hmm, maybe this won’t be so easy. 🧐
Keep that in mind when listening to legal pundits. They are expected to come out with an opinion immediately after an event, even though they may still be at stage #1.
After a while, you learn that the strength or weakness of legal arguments can hinge on something not immediately obvious. For example: Does Bragg have to prove that Trump committed other crimes, or does he just have to prove that Trump was motivated by a desire to defraud and cover up other criminal activity? If he has to prove those other crimes, it gets difficult. If he doesn’t, it’s a lot easier.
Another example: Some legal pundits looked at Penal Law § 175.10, the statute Trump is being charged under, saw the word “fraud” and applied the usual definition, but Karen Friedman Agnifilo (a former Manhattan chief assistant district attorney) and Norman Eisen (a senior fellow at the Brookings Institution) point out:
New York appellate courts have held in a long series of cases that intent to defraud includes circumstances in which a defendant acts “for the purpose of frustrating the state’s power” to “faithfully carry out its own law.” To the extent Mr. Trump was covering up campaign contributions that violated New York law, that seems to be exactly what he did.
Everything hinges on what the jury believes and how the facts are applied to the law. Even good lawyers miss things or don’t immediately grasp all of the nuances of the laws.
Trump’s Unhinged Attacks on Bragg, Willis, and the DOJ
We are now in the indictment stage. More indictments are expected.
- Bragg may bring others (this was a narrow set of facts and he has said the investigation into Trump Org fraud is continuing)
- In late January, Fani Willis, Fulton County DA, said her charging decisions would be “imminent.” Lawyers who have been closely watching grand juries in Fulton believe that she will make a charging decision by late April. (This is to remind you what ‘imminent’ can mean.)
- I haven’t been updating my FAQs, but if you’re following the DOJ investigation reporting, you know that Trump lost his bid to keep his closest aides and Mike Pence from testifying. The DOJ investigations are thus in their final stages. By that, of course, I mean charging decisions will soon be imminent.
Here is how things normally work: In the pre-indictment stage, defense lawyers work hard to try to prevent an indictment. They do this by meeting with prosecutors and trying to explain why the client shouldn’t be charged. Prosecutors listen because they want to know if there are any holes in their case.
Prosecutors also have a goal: They prefer a potential defendant to plead guilty. That way they can notch up a “win” without the expense of a trial or the risk of a trial gone wrong.
Defendants can be difficult at this stage because it’s extremely stressful. Some defendants don’t understand how much trouble they are in. Some don’t understand the power imbalance. Because the government has the power, defendants have constitutional rights.
A client once told me, “I am going in there and telling the judge a thing or two.” I responded by explaining the rule of power struggles.
Rule of power struggles: Never get into a power struggle with someone who has more power than you do.
(I have found that teenagers can also benefit from this advice.)
Because of the power imbalance, the negotiation isn’t like in civil cases. The defense lawyer arrives for pre-indictment discussions hat in hand (so to speak). These things are generally very civil because one party has all the power. (A prosecutor once told me that “Civil law isn’t civil, but in criminal law, we are all so much more civil.” I was amazed that he had so little insight. Of course, we were civil. He had all the power, so we were exceedingly polite, and as a result, they were polite back.)
Trump launching unhinged attacks against the prosecutors investigating him is, well, unhinged. About three weeks ago, it occurred to me from Trump’s rambling that he didn’t know the particulars of what he would be charged with. I contacted Mark Reichel, who was my mentor a few decades ago in the federal defender’s office. He has a ton more experience than I have. Like 100x more.
I asked him, “Can it be that Trump doesn’t know the charges at this point?”
He said that Trump has to know. There is always a last-ditch negotiation to avoid charges.
Then, just before the indictment came out, New York Times reporter Maggie Haberman said Team Trump:
(An indictment under seal has nothing to do with pre-indictment talks between the defense and prosecution). After I read what Haberman said, I texted Mark and said, “WTF, Trump doesn’t know the charges?” He confirmed my idea: after all of those unhinged attacks, Bragg probably said screw it, just bring the charges. Why negotiate with someone who is attacking him?
Haberman said that Trump is dealing with 3 fronts:
- The political front, which Trump has under control. This means that he has riled his base and gotten his GOP sycophants to go on TV to defend him.
- The emotion front, which isn’t going well. The Trumps are in tumults.
- The legal front: Trump’s team doesn’t know the charges and they were caught off guard, which probably means they haven’t had the usual meetings with the prosecutors, which isn’t a surprise given how Trump has been behaving.
What’s going on is that Trump’s political strategy conflicts with his legal one. He can’t do both. He can’t rile his reactionary base and behave in a way that will lessen his criminal liability. The political strategy he has adopted is hurting him (and will continue to hurt him) in the criminal matter.
Question from a reader:
Haberman said (in TV interview) that Trump’s apparently deranged and unwise attacks on the Judge and his family are actually a calculated attempt to pressure the Judge to recuse (based on alleged conflict of interest). Do you think this is likely, and what do you think are his odds of succeeding in this?
That may be the spin that Trump’s team is trying to put on Trump’s unhinged behavior, but it’s ridiculous. That would mean any defendant who doesn’t want a particular judge can just start attacking the judge. The way to get a different judge is to file a motion and argue that the judge should recuse. You don’t just attack the judge. Remember: Haberman isn’t a lawyer offering a legal opinion. She’s a reporter, so she’s just reporting what Trump’s team is saying.
* * *
Happy Passover to all who celebrate. Passover is a celebration of freedom. Today, I am thinking of Ukraine.
🙏Next year, may everyone be free🙏
And this weekend, Happy Easter to all who celebrate.
May you find what is hidden (whether it is a decorated egg, the middle matzo, the meaning of life, or whatever you’re searching for).
Excellent, concise and well worth the time to read.
Do you have thoughts on the statute of limitations issues? I think the prosecution take on that might also be related to the underlying crimes they didn’t charge but did use to bump this to a felony.
I’m not an expert in New York law, but the statute of limitations tolls when the person is out of state, so as I understand it, no worries with that.
If the jury can find that Trump committed a misdemeanor and the statute of limitations on a misdemeanor is only two years, would the judge void the conviction?
I just think it’s funny that one of the main characters in this story is named Pecker. Thanks for all the time you put in to educate us.
if the statute of limitations passed (which it hasn’t) it wouldn’t get to a jury.
You couldn’t make that up, right?
Is the “while out of state” enough even for the misdemeanors? 2017->2023 for a 5 year SOL is pretty easy to get to even with just a little bit of tolling. 2017->2023 for a 2 year SOL requires quite a bit of tolling.
That shouldn’t changed based on whether it’s a misdemeanor or felony, so don’t worry about the SOL.
Hi. I’ve been listening to the news today. Pundits/lawyers seem to be conflicted regarding the strength of the NY case. Some say it’s extremely strong. Others say it’s weak and could be dismissed. Do you have any thoughts on this?
I gave my analysis here in this blog post!
Thank you for this. It sounds like New York law is different than other places like, say, California.
One nit – under The Indictment heading, there doesn’t appear to be an active link, but it’s easily found through Google.
Thanks! Been awaiting your take on this, and of course any more you add.
I was briefly confused on the difference between “concealing” vs “covering-up” a crime. It must be that the former is during commission, and the later post-facto.
Elsewhere, knowledgeable folks have brought up that if the “other crime” is the federal election, the law isn’t settled on whether that create a felony (and is in fact now being decided). But you mention the possibility of a state crime in that regard, which would be clear.
Should we worry about this “federal might not count” idea?
The thing about worrying is that we tend to worry about the wrong stuff, particularly with courts and trials. Anything can happen. Things can go wrong. Things can come out right. It is hard to say what will end up mattering.
We drew a good judge, which is why Trump is attacking him.
The trial date is set for December. Does that help the prosecution or the defense? I think it would be in Trumps interest to hurry it along and for Bragg to stretch it out.
Trump is a psychological class all wrapped into one human. It’s like free continuing education. I’m going to ask Washington State for credit toward my license renewal
I see no reason Bragg would want to stretch it out. It doesn’t really hurt either side. It seems like a reasonable trial date. If anything I see Trump trying to delay it.
Hi Teri, I would love to know your thoughts on whether the WI state legislature could impeach and remove Janet Protasiewicz from office before the newly constituted WI Supreme Court decides on redistricting and abortion. Thanks so much! I love your blog!
I don’t know what the laws are there. Generally impeachment is fairly easy but removal is hard. I heard that she could be impeached, but I haven’t heard anything about removal, but to be truthful I haven’t looked closely.
Given the attacks, some by Trump directly and some by proxy from his sycophants, I have to wonder how long it will be before the judge slaps him with more constraints. Will Trump push it to the point where he’ll need pretrial confinement? That could really put a crimp in his campaign rallies which would be good for public safety.
Seems like a crash course in abnormal psych.
I said that about the whole Weiner case too 😉
Thanks for this article. You’ve answered many of my questions.
Legal Terminology update: “Deep doo doo.” Noted and filed. Thank you.
Haberman said (in TV interview) that Trump’s apparently deranged and unwise attacks on the Judge and his family are actually a calculated attempt to pressure the Judge to recuse (based on alleged conflict of interest).
Do you think this is likely, and what do you think are his odds of succeeding in this?
Terri, this week’s blog was outstanding and dare I say, humorous to beat the band as well!! Loved those emojis,
and quite well placed too.
You also broke it down so simply-and tho I’ve been listening to alot of pundits lately, NOBODY breaks it down so succinctly as you do. Thanks for all your efforts!
I saw elsewhere (unfortunately I don’t recall where) a quip along the lines of: this whole saga began with a pecker, and now it ends with a Pecker.
That may be the spin that Trump’s team is putting on that, but it’s ridiculous. That would mean any defendant who doesn’t want a particular judge can just start attacking the judge.
The way to get a different judge is to file a motion and argue that the judge should recuse. This is appealable. You don’t just attack the judge.
Haberman isn’t a lawyer. She’s a reporter, so she’s just reporting what they are saying.
I think I will add this to the blog post.
No JJ picture? (I scrolled to the bottom of the post first to look for his picture, then up to read). I’ll have to imagine how debonair he looks in his holiday finery.
Thanks Teri, especially for the winks and the nods. Going to put this all on the back burner of my mind and look forward to the next shoe drop. Happy travels!
The statute of limitations is a fairly obvious issue. I suspect if it were a danger to the prosecution case then Bragg wouldn’t have brought the indictment.
Newsweek:
Janet Protasiewicz May Be Impeached by GOP After Wisconsin Election Win
BY DARRAGH ROCHE ON 4/5/23
“… Republican senate candidate Dan Knodl had suggested last week that he would be open to impeaching Protasiewicz if he won his own race, which would give the GOP a two-thirds majority in the Wisconsin senate.
On Wednesday morning, Knodl declared victory with 98 percent of the votes counted, giving the Republicans a two-thirds majority in the state senate.”
The WI GOP now has the votes in the Assembly to impeach and in the Senate to remove Judge Protasiswicz.
Thanks, this clears up a lot of the punditry for me. I just feel that Trump wasted a lot of time, effort, and money on these cover ups. As we found out, his worshippers don’t care about his scandals.
I understood that a hearing on motions is scheduled for December. The actual trial date will follow a few months later. Is there a possibility of delays due to appeals on motions or something like that? Jury selection by itself could take months, I would be surprised if opening arguments occurred before this time next year.
Appreciate the detailed breakdown-as expected opinions and accusations are swirling and all over the map. I’ve enjoyed listening to Karen Friedman Agrifilo discuss this legal situation too.
One thing I’ve observed over the course of these Trump years, is whenever GOP comes out consistent and hard with their opinion, seems generally to be based upon a “suspect” theory or belief that will benefit their “case.” Whether only by confusing or controlling the narrative. Now that I’m hearing GOP bullhorns blasting from media rooftops with repeated claims “Weak Case” it allows me to chill out. Taken along with expert legal explanations☺️
I loved #19 of the statement, too, and it certainly brought to mind a series of rude punchlines. I believe it will echo in comedy writers’ rooms for some time….
lol
yes
You have to look up the standards for removal. Are there large enough majorities in the Senate for removal? In the US Senate, 2/3 is required. Do Wisconsin Republicans have the necessary majorities in the Senate? I don’t know the law so you have to look that up.
Thank you Teri
You make sense of it all.
Glad to be at the deep doo-doo stage.
Have a nice weekend. 🙂
Hi Teri, this was great, exactly what I was waiting for.
Re the possibility of jail time. You say that the judge could sentence Trump to prison for the misdemeanors, which in themselves seem rather easy to prove. OTOH, I have read “pundits” pooh-poohing the possibility of jail time, presumably even for the possible felonies Bragg has charged, because these felonies were non-violent, and because Trump would be a “first time offender.” What is your take? Do you know how offenders are normally sentenced for such crimes in New York, assuming that there would be a guilty verdict?
Many thanks for all the education you offer, and the courteous way you respond to questions, even when the questioner is not.
Longtime reader, first time comment. First: Thanks for all you do, Teri. Your public commentary is a genuine public service. Question: If conspiracy isn’t being charged, why is it in the indictment? Are they teeing up superseding charges? Are there other crimes contained within the conspiracy?
I can’t give an accurate answer without doing some research. Unless the person has criminal law experience in Manhattan and you believe the person is past Stage 1, take it with a grain of salt. Nobody can predict the sentence at this stage of the proceedings.
It was the language of conspiracy. The setup smacked of conspiracy. Because I wasn’t privy to the deliberations, I don’t know why Bragg made that decision but it’s possible he thought it unnecessary or a distraction.
As trial date gets closer and facts don’t get any better (from Trump’s pov), is it likely he could make a plea deal? If it does go to actual trial, can he – and would he – ask for a bench trial? On one hand, he’d love the circus and try to play to the jurors, but otoh, I can’t see a lot of NY jurors being that sympathetic to him.
Wonderfully clear as always, Teri. One complaint, though – I can’t help but notice the distinct lack of dog content.
If he pleads guilty, he will admit to criminal behavior and accept punishment.
This isn’t like settling a lawsuit. It’s really hard for me to imagine him admitting to crimes.
Some have suggested that one New York election law offense that Trump may have committed and/or intended to conceal is NY Election Law 17-152, conspiracy “to promote or prevent the election of any person to a public office by unlawful means…” Not only is 17-152 a misdemeanor, but also, arguably, the “unlawful means” could include Trump’s falsification of business records. Seems to be weirdly circular (though I don’t think fatal): The commission of the election law conspiracy misdemeanor offense would be built on the commission of the misdemeanor business record falsification offenses, and, then, the commission of the misdemeanor election law offense would provide the basis for elevating the misdemeanor falsification offenses to felonies. I’d love to hear your reaction.
From the indictment (and the TV pundits) Bragg has a backup crime to make the charges a felony. That the payments were described as legal fees and thus deducted as expenses for the TO. But they were not. Federal and NY state tax is due on the payments.
Right. When I did this as a Mastodon thread, I had tax violations in there. Not sure how I left that out.
I learn so much reading your blog. Thank you.
I am going to try my previous question again… Ignore Trump; I’m asking more broadly about how things work in general.
If the feds, (or a state)has 2 ongoing investigations on a person’s criminal behaviour, and they decide both warrant charges, why can’t they just lump it all together into one indictment with multiple counts/charges? Wouldn’t that be a better use of the court’s time? Given the backlog, it just seems logical. So despite my ‘ignore Trump,’ – if charges are warranted for the stolen documents, and January 6, just deal with it all as one case. It’s the same criminal.
Love the way you cut to the chase with your commentary, Teri! Thanks as always.
They are separate jurisdictions. State prosecutors prosecute state crimes. Federal prosecutors prosecute federal crimes. If they are both investigating the same crime, the feds may ask the state to stand aside because it would be too difficult on the client.
So Jack Smith is investigating different crimes from Fani Willis because Georgia law is different from federal law.
Does that answer the question?
Is there any indication that the DOJ (or anyone else) is investigating the obstruction of justice allegations in the Mueller report? I expected those allegations to be investigated as soon as Trump was no longer president, but I have not heard anything about them since the report was published.
There were no “allegations” of obstruction in the Mueller report. What Mueller did was set forward the evidence of obstruction and then, in his testimony before Congress, said that he did not analyze whether a crime had been committed and never made that determination.
Although I don’t address this question directly, see the general criminal law FAQ page that I have pinned.
Carolyn,
I came here to post exactly this: where’s JJ? a girl cannot live on legal content alone, she needs cute puppy pics. that’s 2 posts for those counting…..
Thank you Teri & have a wonderful long week-end.
Nat
Sigh. JJ pics next week I promise 🙂
Based on a recent Lawfare post there are ongoing protective order negotiations. It seems Bragg is concerned that Trump will use AG materials for other than preparing a defense. One point was to keep all shared materials in the offices of his legal team. Is this normal?
In part, Trump and some in the Republican Party are using his indictment for fundraising. This strategy could account for some of his attacks on Bragg and Merchan (Merchan’s family), and provide a reason why Republicans don’t condemn his behavior. I’m unclear how his campaign fundraising fits into his defense. For example, can he use some of this money to pay for his defense?
Perhaps JJ is withholding photos until we all send treats?
When you have an ongoing scheme (here, as I understand it, the payments stretched out over months and years @ $35,000 a month), the statute of limitations timer doesn’t start ticking until the entire scheme is completed.
In addition Trump was outside of NY, which stops the timer (under NY state law).
And in addition, I read something about Gov. Cuomo putting all trials on hold during the early Covid wave and stopping all S/L timers because of that.
IOW, there are multiple reasons why S/L is not in play here, no matter how often Trump himself insists that “the S/L has been violated Big Time!” I’m sure his lawyers will include it in their Motion to Dismiss, and Trump will keep blabbing about it, but I assume Bragg’s office already has a well-researched memo waiting to send in response.
Hi Teri great breakdown on trump’s legal case in NY. How will the schedule of this case work when other cases are brought forward? Specifically the cases in Georgia and SC Jack Smith bring indictments soon. Can SC trial go first or is NY front and center? I’m wondering how many years it will take to complete the case v. DJT?
The trial should be completed in about a year I’d think. With appeals longer but if you are convicted you remain convicted while the appeal is pending. I don’t know how the various cases will be juggled but the trial will not be able to run concurrently.
I heard in a news report about Trump’s legal troubles that the E Jean Carroll rape trial, roughly 2 weeks away, presents another serious threat to XP (ex-prez). XP’s dilemma is that defending himself will require him to testify, and we all know when XP talks, he has a hard time not incriminating himself, or perjuring himself, further. But not defending himself is also risky. It was suggested that among all his legal exposures, this one has potential to do serious damage soon.
All of these things are likely to hit at once. I just hope the Democrats can tie the Republican Party to him in 2024. A sweeping win would allow the Democrats to correct so much of the damage that’s been done since the rise of the Tea Party.
Your blog is no longer updating in my feed reader. Has something changed?
Excellent work, AGAIN! Thank you, Teri!
Here’s a question I didn’t see addressed already:
With respect to being used to fraudulently protect TDFG’s campaign for the presidency, does NY law still qualify as the requisite felony since this was for the federal office of President of the United States?
A Tweep posted this in response to a comment about what qualifies as a felony for this purpose, “There is a specific clause in FECA that preempts enforcement of any state law related to election to federal office.”
It brings me back to the assertion that Bragg doesn’t need to charge the felony, only that it was the focus of the scheme.
Whattaya think . . . . Splitting hairs? (With 24 years of prosecutorial experience, I’m having a hard time believing that DA Bragg isn’t already on top of this.)
P.S. My best to JJ. I think he owes us more than one photo next time, since he’s taken a few days off.
I see how it is. You can’t fool me with your liberal dog-withholding. You’re just creating a dog content shortage so we’ll all be grateful next week. I’m on to your game.
Ah, I see. Thanks! Given the amount of public evidence against him (never mind the non-public evidence), the number of jurisdictions in play, and the seriousness of the impending federal charges, it seems like corruption and delegitimization of the whole criminal justice system is his only possible gambit. He seems like a gambler doubling down on hand after losing hand.
Nothing has changed that I know of. I did my weekly blog post on Thursday this week instead of today.
I just asked my technical support staff and he thinks that may be a feed reader issue 🙁
My understanding is that preemption is not an issue because Bragg is not charging federal crimes. I think it’s analogous to sentencing guidelines taking into account criminal convictions in other jurisdiction.
See: https://www.lawfareblog.com/preemption-and-known-unknowns-trump-indictment