This blog post started as a Youtube video. You can see it here.
As I’m sure everyone on the planet knows by now, a few days ago indictments were filed against the Trump Organization and its chief financial officer, Allen Weisselberg.
A lot of what I’m about to tell you is from this Washington Post piece that I co-authored a few days ago with a former colleague of mine back when I did criminal defense work, Mark Reichel.
I’m going to march through a few of the bogus defenses being thrown around in the media by members of the Trump Organization, or the people trying to shield them. But first, we really have to look at the indictment, because if you don’t what’s actually in the indictment, you’re more likely to fall for some of these bogus defenses.
The Trump Organization and Weisselberg Indictment
Right up front, we learn that the criminal scheme is systematic and ongoing:
In other words, we’re not talking about a few isolated incidents, but a pervasive pattern over a period of more than 15 years.
Notice the wording: “Substantial portions of their income.” Think how much money these Trump Organization executives are paying themselves. Think about their lifestyles. We’re not talking small potatoes here. As part of being mostly paid under the table, Weisselberg and other executives were paid bonuses by subsidiary companies, which allowed both the executives and the Organization to cheat. The executives could count the income as private contract work instead of payroll, which offers them tax benefits. The organization didn’t have to pay a payroll tax. Then the organization marked these as expenses, which made them tax deductions.
They’re cheating left and right. They’re cheating coming and going.
That’s not all. The Organization provided goodies. The Organization rented a Manhattan apartment (not in one of the buildings that they owned) and provided the apartment rent-free to Weisselberg. The Organization paid his utilities and even his garbage and garage parking bill. He lied and said he didn’t live there, which meant he paid no taxes to New York. The Trump Organization also paid private school tuition in Manhattan for two of his family members, plus (if all that wasn’t enough) the Organization provided a leased Mercedes for him to drive. I don’t know about you, but I don’t consider a free Manhattan apartment plus a Mercedes plus private tuition for family members to be a few fringe benefits.
Notice that wording. There were others. Weisselberg wasn’t even necessarily the largest. Throughout the indictment, we see mentions of other employees and other Trump executives that were helping to devise these schemes and benefitting from the schemes. For example:
We don’t know who those other employees and executives were, but it’s odd to me that they were mentioned this way. This indictment is sending them a warning, which explains some of the responses I’ll talk about from Trump family members. It’s hard for me to believe that these other executives will be allowed to skate free after being mentioned this way.
One of the more interesting passages was a reference to an unindicted co-conspirator:
Rumor is that this refers to the Comptroller, who is reportedly cooperating with the prosecution.
Here you can see that some of the checks for unreported benefits were signed by Trump himself:
This means the prosecutors have evidence directly linking Trump to the scheme.
Here’s one of the more interesting parts. We find out that for a number of years, the under-the-table payments were recorded on a spreadsheet The company literally kept two sets of books, the general ledger for official consumption, and the one that recorded what was really happening.
There are a total of 15 counts, including falsification of records, and lots of mentions of the F-word (by which, of course, I meant fraud)
The prosecutor, Vance, has indicated that the investigation is ongoing. I don’t like to predict the future because nobody really knows what evidence the prosecution has, or what their strategy is and what else might come out, but reading this indictment with so many mentions of “other Trump Organization executives” benefitting from the cheating persuades me that more indictments are coming.
The Bogus Defense #1: “Selective Prosecution” Defense
After Weisselberg and the Trump Organization were indicted, a Trump Organization spokesperson issued a statement claiming that Weisselberg “is now being used by the Manhattan District Attorney as a pawn in a scorched earth attempt to harm the former President. The District Attorney is bringing a criminal prosecution involving employee benefits that neither the IRS nor any other District Attorney would ever think of bringing. This is not justice; this is politics.”
Here a Fox News citing a National Review which is repeating Trump Organization talking points, and claims that “the exercise has the distinctly foul odor of selective prosecution.”
“Selective prosecution is a legal term with a particular meaning. Selective prosecution, which occurs when a criminal defendant has been arrested and charged based on a protected category such as race, religion, or gender. The Supreme Court defines has selective prosecution as prosecution “directed so exclusively against a particular class of persons … with a mind so unequal and oppressive” that the administration of the criminal law “amounts to a practical denial of equal protection of the law under the Fourteenth Amendment.”
“Former U.S. president” and “rich guy well-known for shady business practices” are not protected categories.
If 20 cars speed down a highway and you are the driver pulled over, you have no “selective prosecution” defense unless you can present evidence that the officer intended to discriminate against you because of your race, religion or gender, or some other protected category. If you were randomly selected — or selected on the basis of a nonprotected category (for example, the officer has a pattern of pulling over white cars and you’re driving a white car) — there is nothing illegal in this, there was no misconduct, and you would have no viable defense.
Here’s the thing. The prosecution of the Trump Organization and Weisselberg wasn’t even random. They weren’t randomly selected from a large pool of organizations engaged in long-term systemic cheating. The investigation evidently started in 2018 when Trump’s former personal lawyer, Michael Cohen, while testifying before Congress, alleged that Trump, through his businesses, engaged in a host of crimes including aiding and abetting campaign finance violations, misusing charity funds, committing bank and insurance fraud. Cohen testified that he helped commit these crimes.
Piling on more evidence, after $27 million from the Trump inaugural funds was unaccounted for, Stephanie Winston Wolkoff went public with allegations that the Trump family set her up to be a scapegoat for their crimes.
Also, a family member, Mary Trump, angry at all the cheating going on in the family, turned over to the New York Times tax documents that long-concealed records show chronic losses and years of tax avoidance.
What makes these allegations believable is that the Trump family has a history of questionable business dealings. To take two recent examples, the Trump Foundation paid $2 million to settle a case in which the Trumps were accused of misusing charity funds. The Trumps paid a $25 million settlement to the “victims of his fraudulent university,” according to the New York attorney general. Another family member, also angry at being cheated by the Trumps, provided documents to the New York Times showing that the family had cheated on their taxes for years. To say the least, it was starting to look like the Trumps were getting away with a lot of crimes.
Given all of this, ignoring those allegations would give the Trump Organization preferential treatment.
The Trump Organization, given everything we know, is nothing like a car being selected out of dozens of cars speeding. Given how much we know and how long we’ve known it, it is more like a single car was driving recklessly for years through town while law enforcement deliberately closed their eyes because of who happened to be driving the car.
So the “selective prosecution” defense is pure malarkey. Not prosecuting would have been preferential treatment.
Here’s something you may find interesting. Selective prosecution is a procedural defense that basically amounts to an admission that the crime happened. The defense claims that others did it, too, but the defendants were singled out for prosecution. Even if the defendant is guilty (if the prosecution was based on race, for example) the case gets dismissed because the prosecution violated the defendant’s Fourteenth Amendment rights.
So “we are being selectively prosecuted” is an admission of guilt, but an argument for why the prosecution is unfair and the charges should be dropped to avoid violating the defendant’s constitutional rights.
Bogus Defense #2: Someone Else Did Worse
This is related. “Officer, I was only going 80 miles an hour. That other car was going faster! This isn’t fair.” On the playground, this defense is known as “but he started it,” or “he did worse, and he’s not in trouble.”
Eric Trump had a very public meltdown on Fox News the day the indictment was filed. Featured in his rant were attacks on Hunter Biden. “You know, the difference is I’m not Hunter Biden,” he said and listed out a series of allegations against the president’s son.
He said: “I’m not selling paintings to undisclosed people for half a million dollars apiece. I’m not doing drugs in shady hotels.” (I’m not actually sure these things are worse, but that’s beside the point.)
The “but others did worse,” is what the National Review was alluding to when it said this:
I won’t dissect the lies and distortions in this piece, except to say that there are people who believe that nonsense. The argument amounts to, “What the Democrats did was worse.” It is not a denial of the allegations against the Trump Organization.
Bogus Defense #3: It Was Political Prosecution
Trump Jr. tweeted this, claiming that the prosecutor was going after his “political enemies.”
Of course, this is also what the Trump spokesperson meant when he said, “This is not justice; this is politics.”
Political prosecution is what happens when you weaponize law enforcement to go after your political opponents for no other reason than they are your political opponents. It’s when you have no evidence of crimes but you’re searching for a crime– sort of like what the Republicans did for decades hounding Hillary Clinton. What they came up with was that she used a private email server, which at most, was “careless.” It is not a crime. Compare that to falsifying documents with an intent to defraud.
Obviously, they’re going to try this defense:
To succeed with this defense, they have to present some evidence, and “the prosecutor is a Democrat” or “the prosecutor didn’t vote for Trump” won’t cut it. They need some evidence that the motive was political, and that the prosecution didn’t arise from actual evidence of crimes. Political prosecution abandons rule of law and democratic processes. A prosecution grounded in facts, and evidence, in which the prosecutor followed the trail of actual criminal activity isn’t “political prosecution.”
BOGUS DEFENSE #4: It Wasn’t So Bad.
Notice that this is also not a denial that a crime occurred. It acknowledges the crime, but says ‘no biggie.’
The National Review said this:
Puny? Not in my world. In my world, people don’t cheat and falsify records in order to be able to live a lavish lifestyle.
Because the National Review opens by claiming that the charges are “puny” (meaning real but trivial) what they mean by “nothing” is that they are “nothing important.” What matters to the National Review is violent crimes (unless it’s white people attacking the Capitol.) Rich people cheating is, to them, trivial.
The reason I started with the indictment itself was so that when people say, “Ah, it was a few fringe benefits,” you can say, “Nope, go look at the indictment and decide whether you think it was puny.”
Not Such a Bogus Defense #5: We Didn’t Know
What makes crimes hard to prove is that prosecutors have to prove intent. Different crimes require different levels of knowledge or intent. As everyone who saw Legally Blonde knows, this is called mens rea.
A reasonable defense would be “But we didn’t know” or “we didn’t know it was wrong.” But the Trump family members (and the people shielding them) have not said that. This is a small company. If you go to the “leaders” tab of the Trump Organization website, Trump Jr. and Eric are listed as the leaders.
The company is very tightly held. I think they know they’d be a laughing stock if they tried to say, “We had absolutely no idea that our CFO and other executives were cheating left and right,” or if they tried to say, “we had no idea any of this was wrong.” They’d sound silly. Nobody thinks falsifying tax documents is okay.
Also, remember when, in the debate with Hillary Clinton, Trump bragged that “Not paying taxes makes me smart?” That’s about as close to a confession as you generally see.
Denying that they knew any of this was happening or that it was wrong would make them sound stupid, not smart. Also, it’s a pretty good guess that at least some of the other unnamed executives mentioned in the indictment were named Trump. They don’t know what other evidence will come out, but they know what they did, and they know what they knew.
I think they’d rather look like victims and cry, “Witch Hunt!” then try to deny that they knew what Weisselberg was doing.
There are other defenses floating around out there, but this is long enough.
