Apr.05

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The Prodigal Son Returns

If you follow the news very, very closely, it's possible that you were dimly aware that Donald Trump, who was once the President of the United States, returned to his home state of New York yesterday to face arraignment in the criminal case brought against him by Manhattan DA Alvin Bragg. This story may have even come up once or twice on this site. We'll have to check Google to make sure.

Ultimately, there weren't all that many surprises yesterday. As reported on Monday, there are indeed 34 felony counts. Every single one of them is for "FALSIFYING BUSINESS RECORDS IN THE FIRST DEGREE." The number of counts reached 34 because Bragg's office treated every distinct interaction with Michael Cohen as a discrete criminal act. So, for example, when the Trump Organization accepted a phony invoice from Cohen for one month's payment, then cut a check in response to that invoice, and then recorded the check as a business expense in the company's ledger, Bragg treated that as three separate crimes. And since Cohen was invoicing and being paid over 12 months, well, the numbers piled up quickly. If you want a more precise inventory, there are 11 invoice counts, 11 check counts and 12 ledger entry counts. You can read the indictment here, and the statement of facts here, if you wish.

Donald Trump's behavior yesterday was also unsurprising. He pleaded not guilty, of course. Even less surprising is that, after Judge Juan Marchan declined to impose a gag order (for now), Trump delivered a rambling, 40-minute speech full of laments about how he's a victim coupled with numerous baldfaced lies. He also attacked the judge directly, calling him a "Trump-hating judge with a Trump-hating wife and family." Brilliant legal strategy there, Donald. Undoubtedly his attorneys (the real ones, not the TV ones) are already pulling their hair out.

Perhaps the least surprising news on the Trump front, however, is the fact that he is already aggressively fundraising off of Tuesday's events. It's always about the grift, after all. The last thing he did before heading to court was beg his followers for money. He's also selling t-shirts with a fake mugshot for about 40 bucks:

We really don't understand why his real mugshot needed to be suppressed, but he was happy to be pictured in a fake mugshot. Though we suppose this version allowed someone to sneak in the oh-so-subtle detail that he's the 45th and 47th president.

Meanwhile, outside the courthouse, the crowd was definitely much more anti-Trump than pro-Trump, though he did have a couple of well-known members of Congress show up to support him, and it was the exact pair that the writing staff of Saturday Night Live was undoubtedly praying for as they prepare to lampoon this whole thing: Reps. Marjorie Taylor Greene (R-GA) and "George Santos" (R-NY).

Pretty much every time Greene tried to speak, she was drowned out by the crowd, although she did manage to share her view that Trump is very much like Jesus. We actually think that the Representative is on to something here, as there are a lot of similarities between the two men:

• Neither of them said anything useful after the age of 33
• Neither of them wrote the book that made them famous
• Neither of them paid taxes (although one of them was at least amenable to doing so)
• Neither of them won the 2020 presidential election
• Neither of them could really trust their "loyal" acolytes
• Both had distant relationships with their fathers
• Both consorted with sex workers
• Both fraternized with people hostile to Jews
• Both bring to mind white robes and crosses
• Both think they are God

We're not sure which of these commonalities Greene was thinking of, but it was undoubtedly one of them. In any case, her arrival on the scene was no surprise, because she announced it several days ago. "Santos'" presence was a bit more unexpected, though it really shouldn't have been. As the presiding judge in the case, he had to be there.

At this point, the $64,000 question on everyone's mind is undoubtedly how strong the case against Trump really is. The two documents linked above total about 30 pages, which means two things. The first is that there's been plenty of time for legal experts to read both of them. The second is that they do not provide anything close to a comprehensive view of Bragg's case against Trump. For most lawyers, particularly government lawyers, 30 pages is barely enough for them to clear their throats.

Plenty of legal commentators who are not in the bag for Trump (in other words, no Alan Dershowitz or Jonathan Turley) have already written pieces offering their preliminary assessments of the case. None of them sees a slam dunk in the documents that are now publicly available, and opinion generally breaks down pretty evenly between "it's a problematic case" and "we have to be patient and wait and see." Some selected comments:

• Scott R. Anderson, Anna Bower, Saraphin Dhanani, Hyemin Han, Quinta Jurecic, Tyler McBrien and Benjamin Wittes, Lawfare Blog: The bottom line is that the case unsealed today, like many cases, requires more complete presentation before evaluation. It certainly does not put before the courts the conduct of the former president of most concern to us—there are at least three other ongoing investigations that might present much more serious allegations than the ones the New York grand jury handed up. On the other hand, it would be a mistake to dismiss it, either on legal or factual grounds, without hearing the whole of what Bragg has to say.
  
  An indictment, after all, is only a beginning.
  
  
• Mark Joseph Stern, Slate: These charges will be difficult to prove. There can be no doubt that the district attorney faces an uphill climb. They tell the story of a complex conspiracy to illicitly alter the course of the 2016 election—potentially, a powerful tale of corruption that persuades both the jury and the public of this prosecution's necessity. But Bragg's legal theory is, if not convoluted, a fairly confusing effort to patch together disparate offenses into one alleged crime, carried out over 34 illegal payments. This is not at all the slam-dunk case that so many Democrats wanted.
  
  
• Rick Hasen, Election Law Blog: Based on what I have seen so far, the decision to charge Donald Trump with felonies in New York state is a mistake both legally and politically... I would rather see the fire aimed where it belongs: at Trump's attempts to undermine American democracy and interfere with the peaceful transition of power during the 2020 election. Those kinds of prosecutions can help to support the rule of law. This one may undermine it.
  
  
• Liz Dye, Above the Law: What is most surprising is the indictment itself. Before last night, there was rampant speculation that the district attorney would charge for both second degree falsification of business records under NY PL § 175.05, a misdemeanor, and first degree falsification under NY PL § 175.10, a felony because the defendant's "intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof." But the indictment includes no misdemeanors, and no conspiracy charges as was also speculated. This may be a risky gambit for the DA, because it requires him to prove "intent to defraud," and also because the "other crime" here is conduct for which no one was ever charged. When asked about this at the press conference, Bragg made vague references to violations of "New York state election law," which makes it a "crime to conspire to promote a candidate by unlawful means," as well to violations of federal election law.
  
  If the court buys this theory, then he'll have succeeded in convicting the former president of multiple felonies—assuming he can get around the five-year statute of limitations problem. If the court refuses to accept the election crimes as a predicate for first degree falsification, Bragg doesn't even get to go home with a misdemeanor conviction as a participation trophy (which would have a two-year limitations problem of its own).
  
  
• Zachary Basu, Axios: Bragg will need to prove Trump tried to conceal crimes that he has not been charged with—and that are not actually named in the indictment. One of those potential crimes—violating federal campaign finance laws—is not in Bragg's power to prosecute as a district attorney. The unusual legal strategy could pose a significant challenge—and may backfire in spectacular fashion if Trump is acquitted or the judge dismisses the case before it's even brought to trial.
  
  
• Jessica Levinson, CBS News: Unless you have a smoking gun, showing intent to commit another crime can always be a challenge... It hinges on David Pecker. And I think it hinges on other people in the Trump Organization who actually helped him make these payments.
  
  
• Noah Feldman, The Washington Post: The relatively minor charges brought by the Manhattan district attorney regarding Trump's alleged hush money payments to cover up extramarital sexual encounters do not target the core of Trump's challenge to our democratic constitutional system. As a practical matter, they may even make it more difficult to prosecute him for more serious crimes.

The executive summary is this: The Trump Organization engaged in financial transactions with Michael Cohen, and then produced a paper trail that fraudulently misrepresented the nature of those transactions. Each piece of paper in that trail (again, each invoice, each check and each ledger entry) is a separate crime. If that was the end of it, these misrepresentations would be misdemeanors. However, Bragg believes that the goal of these misrepresentations was to cover up some other crime (likely election fraud), and in that case, the misdemeanors become felonies.

Exactly how Bragg plans to approach that other crime, and what evidence he has to support his argument, remains largely unknown. There are numerous potential problems with his plans, at least in the abstract, most obviously that if he cannot prove the underlying crime, the whole case collapses. The folks above, all of them trained lawyers, can see those potential problems, and so that's what they're talking about here. Remember, though, that all of these folks are just hazarding their best guesses. The only difference between now and last week is that they have some important new information. But Bragg is a trained lawyer, too. He can also spot the weaknesses in a case, and he's had a lot more time to think about this than they have. He has not laid his whole hand on the table, by any means, and so we really don't know how he plans to deal with these potential problems.

And now, we enter hurry up and wait mode. There will be many, many months of motions and counter-motions, as Trump's team tries every trick in the book to get the case dismissed, moved, or otherwise dragged out. His next court date isn't until December 4, in part because the judge wanted to leave time for all the maneuvering, and in part because it is not a top priority to resolve lesser felonies where the perpetrator is not in prison. By the time this moves forward, if it does indeed move forward, there's a very good chance that it's only the second- or third- or fourth-most significant legal headache the former president faces.

And that's the story, for now. We have many lawyer readers, if any of them would care to write in with their thoughts on the indictment, the statement of facts, the strength of the case, the timeline, or anything else, we will run an item on Friday. (Z)