The prosecutors haven’t exactly shown their full hand yet.
If you’ve been paying attention, you’ll know that the Manhattan DA’s case against Trump elevates the former president’s 34 counts of alleged falsification of business records — all misdemeanors — to felonies by claiming that the falsification was done with the intent to cover up another crime. But though prosecutors offered a clear theory in court, the legal hook for that second crime was far from explicit in the indictment. Here’s what that means, and why it indicates a potentially major challenge for the prosecution.
What’s the prosecution’s argument?
Prosecutor Chris Conroy offered a clear summation of the case in court on April 4. “The defendant, Donald J. Trump, falsified New York business records in order to conceal an illegal conspiracy to undermine the integrity of the 2016 presidential election and other violations of Election Laws,” he said.
That’s all very well, but while the court papers unsealed on April 4 contain allegations of thank you dinners, checks, and invoices relating to a plot to suppress stories that would hurt Trump’s chances of winning the 2016 presidential election, it’s not clear what legal device prosecutors plan to use to show that this activity qualifies as criminal.
“I’m not saying there isn’t a hint of what the other crime is,” Robert Kelner, a defense attorney who specializes in political and election law told CNN. “But when you have this weird local statute – in which to prove one crime, you have to show he intended to commit another – you think you’d be very specific.”
A higher burden of proof
The 44-paragraph “Statement of Facts” that prosecutors filed alongside the indictment does include a footnote indicating that they have more evidence, and they’re not obliged to reveal everything at their disposal at this stage. But given the necessity of combining the falsification of business records — which should be relatively easy to prove, in addition to the necessary proof that it was done with the intent to defraud — with another crime to construct the felony, you’d think the evidence of that second crime would be clearer.
So, how could the prosecution construct the felony?
CNN points out that there are several possibilities for what the necessary supplementary crime could be, and they each present unique challenges. One is that the business records were falsified to cover up campaign finance violations, the federal crime to which Michael Cohen pleaded guilty in 2018. Another is a New York misdemeanor that Bragg referenced in his press conference that implicates “any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto.”
As experts have noted, it’s up for debate whether state prosecutors can grapple with conduct that’s associated with a federal candidate. And Trump’s lawyers have already argued that Trump’s payments to Daniels by way of Cohen were intended to protect his marriage, not to win the election. That said, the prosecution does appear to have evidence indicating that Trump associated the payment with the election, rather than his personal life. According to a conversation relayed in the court documents, Trump told Cohen: “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.”
A third theory is that former President Trump intended to defraud the IRS. As NBC notes, prosecutors assert in their “Statement of Facts” that Trump, Cohen and Allen Weisselberg, the CFO of the Trump Organization, “took steps that mischaracterized, for tax purposes, the true nature of the payments made.” Little explanatory detail is offered, however.
If D.A. Bragg merely wanted to see Trump convicted of a misdemeanor, it’d be far easier. All the prosecution would need to do would be to prove that Trump’s business records — things like invoices, checks and ledger entries — were false, and that they were falsified with an intent to defraud. An example would be showing that checks made out to his former lawyer Michael Cohen to reimburse him for paying off Stormy Daniels were dishonestly logged as legal fees. In bringing all 34 counts of business fraud as felonies — which, unlike misdemeanors, carry the possibility of prison time — the prosecution has given itself a far tougher hill to climb.
