Below is my column in the New York Post on the release of the indictment against former President Donald Trump. Warning: it has no legally nutritional content…
Here is the column:
“We cannot and will not normalize serious criminal conduct,” Manhattan District Attorney Alvin Bragg said of his indictment of former president Donald Trump.
Yes, the man who has routinely knocked down felony crimes to misdemeanors — or dismissals — actually suggested that he had no alternative but to charge Trump with 34 counts of falsifying business records.
He insisted, our “business integrity” is at stake. After all, as Bragg intoned with no sense of self-awareness, he has always believed that “the bedrock of the basis for business integrity and a well-functioning business marketplace is accurate record-keeping.”
It is all about a well-functioning business marketplace — not his campaign pledge to bag Trump on some (unnamed) crime.
When people think Bragg, they think business.
The first indictment of a former American president was a historical moment, and Bragg failed to rise to that moment.
Bragg released an indictment that was so vague on key elements that it is unclear what the grand jury thought it was voting on. He vaguely referenced state and federal election laws and later refused to add any details on how they relate to the prosecution.
The result is an indictment with the substance of a legal Slurpee: it was immediately satisfying for many with virtually no legal substance.
Bragg solved the problem over his uncertain authority by avoiding any specificity on that authority. He could have put “details to follow” in the caption of the indictment.
Legal experts went immediately into a frenzy over what this could mean and exactly what was the crime that Trump was allegedly covering up with payments to cover up alleged affairs with three women.
If these experts were left scratching their heads on such key elements, how did laypersons on a grand jury understand the basis for this indictment?
We may learn more from the bill of particulars, but this indictment is unintelligible from a legal perspective in understanding the basis for the prosecution.
After the arraignment, Bragg made sweeping references to state and federal election laws before saying that he didn’t have to give such details. He just filed the first charges against a former president and refused to specify the basis for the felonies.
He then held a press conference and refused to answer questions about this basis because he “doesn’t have to.”
What is particularly maddening is that, while Bragg refused to explain the basis for the indictment, he did undermine his own case . . . whatever it may prove to be.
He insisted that Trump could not be allowed to use “fictitious legal services” for political purposes. As with his claimed intolerance for criminal conduct, Bragg’s professed outrage was bizarre given analogous conduct by Democrats like Hillary Clinton on campaign-finance allegations.
The Clinton campaign had previously denied funding the dossier, which was used to push false Russia collusion claims against Trump in 2016, and it buried the funding in the campaign’s legal budget through former Clinton campaign General Counsel Marc Elias.
Last year, the Federal Election Commission fined the Clinton campaign for funding the Steele dossier as a legal expense. Those fictitious legal services did not produce the same revulsion in Bragg or other prosecutors.
This is no time for the niceties of reason in an age of rage. Bragg showed that the only important thing was the name on the indictment caption rather than its basis.
That reality was evident in a new CNN poll. Over half (52%) said that politics had played a “major role” in the indictment. Over three-fourths (76%) said that the move was at least somewhat political. More importantly, only one-third (37%) thought that Trump’s alleged payments to Stormy Daniels were illegal. However, 60% said that they still supported charging Trump. So it is a political prosecution and most do not see a crime, but it is still supported by many citizens.
In Manhattan, the basis for charges against Trump is largely irrelevant. This is a thrill kill case and Bragg just delivered on his campaign promise to bag Trump on something . . . anything. We still do not know what that was, but it does not matter.
Bragg knows his audience. The question is whether he knows this judge. Bragg is counting on Judge Juan Merchan being intimidated or distracted by the historical moment. Even if he is right, Merchan will not be the last judge who will have to review this case.
At some point, Bragg will have to state the actual criminal basis for these 34 counts.
Until then, history — and Trump — will simply just have to wait for Alvin Bragg.
Jonathan Turley is an attorney and a professor at George Washington University Law School.
I actually feel bad for The Don. As one DA told me, “we only catch stupid criminals.”
This is why you call in people like me. Trump’s crime is, at essence, hiring a shitty lawyer. Cohen made it a tax fraud and campaign finance case, when it really didn’t need to be.
Paragraph 25, 30, and 31 of the Statement of Facts:
“25: The TO 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. The TO CFO memorialized these calculations in handwritten notes on the copy of the bank statement that Lawyer A had provided.” …
30: The TO Controller forwarded each invoice to the TO Accounts Payable Supervisor. Consistent with the TO Controller’s initial instructions, the TO Accounts Payable Supervisor printed out each invoice and marked it with an accounts payable stamp and the general ledger code “51505” for legal expenses. The Trump Organization maintained the invoices as records of expenses paid.
31: As instructed, the TO Accounts Payable Supervisor recorded each payment in the Trump Organization’s electronic accounting system, falsely describing it as a “legal expense” pursuant to a retainer agreement for a month of 2017. The Trump Organization maintained a digital entry for each expense, called a “voucher,” and these vouchers, like vouchers for other expenses, became part of the Trump Organization’s general ledgers.”
This is, at essence, a garden-variety tax fraud case, which the Manhattan DA brings every day of the week. The intent to defraud the American people by hiding the sex scandals is for the most part cumulative. No hope for a selective prosecution claim. Document cases are the easiest for prosecutors to bring, because the documents speak for themselves, and are hard to cross-examine.
As NY law tolls the statute of limitations for up to five years for people who leave the State, I don’t think a S/L defense will succeed. A reasonably creative DA could go for a RICO charge (there is a lot more out there), but Alvin Bragg stuck to the simplest and cleanest case he could bring.
The only scandal here is why SDNY did not go after “Individual-1.” Read Berman’s book. [cont]
“[cont]”
Is there a part 2 to this reply?
“Cohen made it a tax fraud and campaign finance case, when it really didn’t need to be.”
I’d like to hear more about this. If we presume the rest of the overall ‘catch and kill’ scheme is the same, how else could/should Cohen, Weisselberg, and Trump have arranged this part of it to prevent criminal prosecution?
People these days don’t understand the law much past Judge Judy. When asked in a person-on-the-street interview, “What is the biggest city in the world?” a young woman replied: “Asia?” So a bunch of these dim bulbs are assembled to be a grand jury (they have time I guess, though they must miss Judge Judy for a month) and vote on a vague indictment. I’m not surprised. Now, let’s see if the judge is an honorable person.
I’m just a humble JD with a master’s in taxation and a CPA, but I see an open-and-shut case of tax fraud.
There is a devious trick used by intellectual bullies to cow dissenters into silence. It is the admonition, ad infinitum, to: “Be patient.”
Before the indictment, those bullies told us: “Be patient.”
After the indictment, they tell us: “Be patient.”
That “be patient” is an attempt to smear and intimidate you. It in fact means: Stop using your brain to pass judgment. Be silent. Be cowed. “Be patient” — until you’re dead.
I can’t speak for others, but when I say “be patient,” I’m encouraging the person to distinguish between what is known and what is not known. It’s not a smear, it’s not an attempt to intimidate, it’s not an attempt to cow someone into silence, it’s not an attempt to tell them to stop using their brains. Quite the opposite, I want them to use their brains to distinguish between knowledge and not-knowledge, a wholly appropriate and productive thing to use their brains for. This distinction is central to epistemology.
Brain Freeze
I don’t understand why Professor Turley is confused. The indictment and statement of facts paint a straightforward theory of the case.
1. The 34 charges cover the set of invoices, vouchers, and checks that constituted the concealed reimbursement to Michael Cohen in 2017 for his Stormy Daniels hush money payment prior to the 2016 election.
2. The reimbursement was recorded in the Trump organization general ledger as retainer payments when there was no retainer agreement, which establishes the basic charge of falsifying a business record, the CPL 175.05 misdemeanor.
3. The misdemeanor charge is upgraded to a CPL 175.10 felony because the falsified business records were made with the intent to commit, aid, or conceal a second crime, ie, Cohen’s campaign finance violation, i.e., the hush money payment to Daniels. (See https://www.justice.gov/usao-sdny/pr/michael-cohen-pleads-guilty-manhattan-federal-court-eight-counts-including-criminal-tax.) The SoF suggests other options to establish the intent to commit, aid, or conceal a second crime, but Cohen’s campaign finance violation is featured.
Again, it’s a straightforward theory of the case. I assume it looked that way to the grand jurors. It’s strange that Professor Turley can’t see it.
Layperson –
1) Eleven of the Counts of the Indictment state that the “Trump organization” held 11 invoices from Michael Cohen. These documents were not prepared by Trump. If they were received, then the mere maintenance thereof is not “false”. The other 23 Counts refer to vouchers in the Detail General Ledger for the Donald J. Trump Revocable Trust and presumably matching checks appearing in the Donald J. Trump Revocable Trust checking account. Were these checks and vouchers actually issued? If so, the General Ledger and the Accounts Payable Ledger or Cash Ledgers would be accurate.
It is the job of the ledgers to reflect financial transactions of the business. It is not their job to reflect agreements behind the financial transactions.
2) I have never heard that an Attorney Retainer Agreement must be writing. Have you legal authority for that statement? If the agreement was verbal, as it may be, it is proper to reflect it in the General Ledger.
3) The payment of hush money to Ms. Stormey, the blackmailer, was not illegal unless you choose to characterize it as an in-kind federal campaign contribution, in which case, the question is unresolved. If the FEC had pressed a claim, it would have been a civil matter. If the DOJ had prosecuted the matter, it would have been a misdemeanor. FECA 1971 s. 309. Neither authority chose to pursue the matter, suggesting a determination that it did not constitue an in-kind contributiion. For his part, Bragg has no standing to enforce or even “prove” federal campaign laws.
Bearing mind that criminal laws are to be strictly construed, it is hard to see how a fair judge could let this case go to a jury.
The question isn’t unresolved. As I noted elsewhere, the FEC Office of General Counsel determined it to have been illegal. Cohen was also charged with it as a crime — not as a civil matter — and pleaded guilty to it. And there is apparently evidence that those invoices were prepared with Trump’s approval.
Trump is free to make your argument to the judge, and Bragg can make his counterargument, and we’ll see what the judge says.
The Commission declined to file a complaint and the DOJ declined to prosecute. The opinion of the counsel carries
no precedential effect.
I agree that it doesn’t carry any precedential effect, but that doesn’t change the fact that that’s what the FEC OGC found. You can thank the partisan GOP majority on the FEC for failing to act on it WRT Trump, but they explicitly noted Cohen’s prison term in their reasoning about it.
Edwardmahl (and Anonymous [April 7, 2023 at 10:02 AM]),
First, as Anonymous pointed out, the bulk of your points go to issues of fact for the trial jury to decide, assuming the case survives pretrial motions (eg, statute of limitations will be a tough hurdle) and reaches trial.
However, Professor Turley’s post strikes deeper than trial issues of fact or, for that matter, pretrial issues of procedure. Turley infers the grand jury indictment itself is unfounded with no cognizable crime on the law charged and facts alleged; in other words, the indictment is illegitimate on its face. That’s an insult to the grand jurors who heard the case. If the statement of facts reflect what the grand jurors heard (presumably with greater detail over the months-long hearing), the indictment charges are legitimate.
Of course, as a matter of law, grand jurors are not permitted to publicly defend their work. Out of respect to the law, if not to the ‘gagged’ grand jurors, Turley should have posted a detailed analysis of the indictment and statement of facts according to the grand jury “legally sufficient…reasonable cause” standard. Instead, Turley insulted them and obfuscated the issue with a vague polemic.
Based on the SoF, it seems almost all, if not all, of the evidence that will be presented at trial is already publicly known in substance, if not full detail, from Michael Cohen’s federal case. For a preview of the likely evidence, see https://www.justsecurity.org/85761/detailed-chronology-of-trump-cohen-hush-money-scheme/.
On to the meat of the matter:
1. The base charge, CPL 175.05, is more than a bookkeeping regulation, i.e., “A person is guilty of falsifying business records in the second degree when, with intent to defraud, he: 1. Makes or *causes* a false entry in the business records of an enterprise…”.
According to Cohen, the hush money payment to Stormy Daniels and the 2017 reimbursement with fake retainer payments were made within the ‘catch and kill’ scheme “in coordination with and at the direction of” President Trump. As chronicled at the Just Security link, in addition to Cohen, admissions by Trump and Trump representatives indicate that Trump was a participant, ie, a co-conspirator, in the scheme. In other words, there is a sound basis to charge Trump for causing the false business records.
Regarding “It is the job of the ledgers to reflect financial transactions of the business. It is not their job to reflect agreements behind the financial transactions,” in fact, ledger entries of financial transactions are required to accurately represent the nature of the transaction recorded. The Trump ledger entries that labeled retainer payments that were in fact not retainer payments are on their face, falsified business records.
2. Regarding the Cohen-Trump 2017 retainer agreement or its absence, that issue will go to the trial jury ‘finder of fact’. Again, a useful reference is the Just Security link, which chronicles the publicly known information stemming from the Michael Cohen federal case. At this point, the public info says there was no retainer agreement. As Anonymous points out, Trump can litigate that fact at trial. Allen Weisselberg’s testimony can make a difference on this point.
3. That Cohen’s hush money payment to Daniels was a campaign finance violation is already decided and a matter of record: see https://www.justice.gov/usao-sdny/pr/michael-cohen-pleads-guilty-manhattan-federal-court-eight-counts-including-criminal-tax.
DANY has clear jurisdiction over the base charge of CPL 175.05. A conversion of a CPL 175.05 misdemeanor to a CPL 175.10 felony merely needs to show the *intent* to commit, aid, or conceal a 2nd crime. The statute doesn’t specify state or federal law or misdemeanor or felony for the 2nd crime. It doesn’t even require prosecution, let alone conviction, of the 2nd crime for the defendant or a co-conspirator. To meet the CPL 175.10 standard, it’s sufficient that Trump was a co-conspirator in the scheme containing Cohen’s crime, regardless of whether Trump was prosecuted as a defendant for that crime.
At least that’s the legal theory of the case: I assume Trump’s counsel will dispute that characterization in their pretrial motions. But again, the point being, Turley is wrong to infer the grand jury indictment is illegitimate on its face.
Layperson, thank you for the clear explanation.
David B Benson,
You’re welcome.
Professor Turley’s “Bragg released an indictment that was so vague on key elements that it is unclear what the grand jury thought it was voting on. … If these experts were left scratching their heads on such key elements, how did *laypersons* on a grand jury understand the basis for this indictment?” stuck in my craw.
The indictment and statement of facts are relatively straightforward on their own, and they’re even more accessible when combined with the case-relevant information that’s publicly available and well known.
If I as a layperson (who’s done jury duty) can articulate the theory of the case from the indictment and statement of facts, then presumably the grand jurors who were immersed in the evidence for months could, too. The bemusement by Turley and “these experts” speaks poorly of the head-scratching experts, not the grand jury that approved the indictment.
“Trump is free to make your argument to the judge,”
You are free to lie and Bragg to practice prosecutorial misconduct. Leaders from NY are free to protect Bragg, but the rest of us should know that NY is not complying with the Rule of Law. One can consider them outlaws.
ATS can continue to be deceitful. attempting to convince others with deceitful statements such as ” As I noted elsewhere, the FEC Office of General Counsel determined it to have been illegal.” That was an attempt to convince unwary people of a lie because they don’t know ATS is deceitful and a liar. He made a lie sound true.
Ed, being the nice guy he is, pointed out the truth below that ATS admits, proving his earlier deceit.
I don’t believe people should treat you in such a courteous manner. Lying and deceiving are second nature to you and should be discouraged. Those are my feelings. One should never offer you credibility. You have none.
That is not true with others who might err or think differently. ATS intentionally deceives and needs to be called on his deception more than his knowledge.
Turley is blinded by his own ambition. He has a Rottweiler in the hunt.