It was another day for the history books. On Tuesday, Donald Trump became the first former president to be indicted on criminal charges. (Although it turns out that Ulysses Grant was the first president to be arrested. The charge was speeding in his carriage and Grant was in office at the time.) The Former Guy flew to New York to turn himself in and be arraigned. Those expecting a white Bronco scenario or a standoff at Mar-a-Lago were disappointed.
The indictment was unsealed after the hearing and is now available online. Reports from the courtroom say that the former president was uncharacteristically quiet during the proceeding. The 34-count indictment charges Trump with falsifying business records in the first degree in violation of Penal Law 175.10. Thirty-four times.
I’m not going to run down the laundry list of indictments. The real details of the case are in the Statement of Facts, which is a shorter document that is also available online.
The prosecution’s case is similar to what many observers speculated about over the past few weeks. The core of the case is that Donald Trump arranged to have Michael Cohen, “Lawyer A,” pay off Stormy Daniels to keep quiet about their affair. Trump reimbursed Cohen and fraudulently described the payments as legal fees in the records of the Donald J. Trump Revocable Trust.
But wait! There’s more.
The statement also details a series of similar arrangements with David Pecker, the former head of the parent company of the National Enquirer, who is referred to as “AMI CEO.” In a Trump Tower meeting in 2015, Pecker allegedly agreed to be the “eyes and ears” for the Trump campaign and look for negative stories.
Per DA Bragg’s findings, Pecker found at least three such stories. The first was a claim by a doorman in the fall of 2015 that Trump had fathered a child out of wedlock. The second was a claim in June 2016 by Woman 1, Karen McDougal, that she had an affair with Donald Trump. The third allegation, in October 2016, was Stormy Daniels's claim of an affair. AMI paid the doorman and McDougal, allegedly making false records about the transactions.
As is well known at this point, Michael Cohen made the payment to Daniels. Interestingly, paragraph 19 of the statement states that Trump instructed Cohen to delay the transaction until after the election. After the election, “they could avoid paying altogether because at that point it would not matter if the story became public.”
If Bragg can specifically point to evidence that shows that the coverup was related to the election, that motive is important in establishing the link to campaign finance law. It also helps to eliminate Trump’s defense that the coverup was for family or marital reasons rather than due to the election.
Paragraphs 25 and 26 note that Cohen’s reimbursement included payment for another matter as well. The two payments totaled $180,000, but the payment was doubled so that Cohen “would be left with $180,000 after paying approximately 50 percent in taxes.” A $60,000 bonus was added for a total of $420,000, paid in twelve installments of $35,000. These payments were rendered after Cohen sent bills for legal services to the Trump Organization, but Trump never had Cohen on retainer.
Michael Cohen ultimately pled guilty to his role in the scheme. AMI entered a nonprosecution agreement with the US Attorney’s Office for the Southern District of New York. As part of that agreement, AMI admitted that it had killed the McDougal story “before the 2016 presidential election and thereby influence that election.”
All of the counts against Trump relate to New York Penal Law 175.10. Per the law, a felony occurs “when, with intent to defraud that includes an intent to commit another crime or to aid or conceal the commission thereof, that person makes or causes a false entry in the business records of an enterprise….” Note that the falsification does not have to be in the defendant’s business records and Trump does not have to make the falsification himself.
If you listened to the pundits yesterday afternoon, you probably heard Democrats calling the charges serious and Republicans saying that they amounted to nothing. The truth, once again, seems to be somewhere in the middle.
If the Statement of Facts is correct, then it does seem that Trump broke the law. If Bragg can prove his assertions, Trump’s illicit payments and records can be tied to tax crimes as well as campaign finance violations.
On the other hand, the offense is small potatoes. The exact size of the potatoes is still in dispute, however.
Yesterday’s filings did not address the issue of the statute of limitations. The events described took place from 2015 to 2017 with the last payment to Cohen in December 2017. The statute of limitations on the felony falsification crime is five years while the second degree misdemeanor charge has a statute of limitations of two years. The first-degree falsification charge would seem to be within time limit, but it remains to be seen whether the felony indictment will stick.
The stakes are real. If Trump is convicted on the felony charge, he can be sentenced to up to 20 years or be fined up to $1 million. No one thinks that will be the case with Trump, but a jail term is not impossible.
Can Trump be convicted? A lot will depend on the jury and what Bragg can prove. So far, we’ve only seen his claims, not his evidence.
There is rampant speculation that David Pecker, the AMI CEO, has flipped on Trump and will testify for the prosecution. We do know that Pecker testified before the grand jury last week. If both Cohen and Pecker testify against Trump and can support their allegations with a paper trail, Bragg’s case just got a lot stronger.
Bragg’s case is similar to what people speculated about over the past few weeks, but there does seem to be more to it than I suspected. At this point, I have no idea if Trump will be convicted or if he will go to jail if he is.
The New York case looks stronger to me than it did last week, but I still say it’s the weakest of Trump’s legal troubles. It won’t be the last, however. I fully expect more indictments for Trump to be coming down the pike, and those will represent much larger potatoes.
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