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.
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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).