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The case Alvin Bragg filed against Donald Trump generated many good comments from readers, including numerous lawyers. Given the previous item, this seems a good time to share. We've selected several of them, beginning with one that we specifically reached out and requested:
R.E.M. in Brooklyn, NY, writes: I agree with your take on the Trump indictment, but I should note that I don't practice criminal law and defer to anyone who actually does in New York State. The charge of Falsifying Business Records in the First Degree (N.Y. Penal Law sec. 175.10) requires proof that the defendant's intent to defraud include "the intent to commit another crime or to aid or conceal the commission thereof." The Trump Indictment does not spell out what the other crime(s) were, but the accompanying Statement of Facts mentions violations of the election laws and that the reimbursement to Michael Cohen was doubled so that he would report it as income and pay taxes on it (a reimbursement of expenses is not income, of course).
We know that the business records were falsified to conceal the two counts of federal campaign finance violations to which Cohen pleaded guilty. But it appears to be a question of first impression as to whether concealment of a federal crime is sufficient for section 175.10 to apply. On the one hand, the statute simply says, "another crime," and federal crimes are crimes, of course. On the other hand, if a criminal statute is ambiguous the "rule of lenity" requires it to be applied narrowly, as it has to be clear to a potential defendant what is or is not a crime.
There are also New York State campaign finance crimes and generally New York Election Law applies to federal races. But whether the payoffs Trump engineered violate New York campaign finance limits is too far down in the weeds even for me. That said, I assume Alvin Bragg knows whatever the answer is. There is also a misdemeanor for conspiracy to promote the election of a candidate by unlawful means. But there are virtually no cases reported under that provision.
Finally, there could be a tax crime even if the plan involved Michael Cohen overpaying his taxes. If he reported the reimbursement money as income, that could be a materially false statement to New York State and thus a "tax fraud act." If he didn't underpay his taxes as a result, it's a Class A misdemeanor. The federal version of this is what the government got Pete Rose on. He didn't report his gambling winnings, but there wasn't an underpayment because his gambling losses, which he could have deducted, were greater than his winnings.
Thus, there are multiple avenues by which Trump could be convicted. Note that Bragg does not have to prove Trump committed or concealed any other crimes, only that he intended to do so. If I make a fraudulent statement on a New York gun license application intending to use the gun to rob a bank, I'm still likely guilty of violating section 175.10 even if I don't rob the bank or even if I don't get the gun.
As for sentencing, immediately dismiss anyone who tells you Trump is facing 136 years in prison (the maximum sentence of 4 years for a Class E Felony times the 34 counts). First, even if he is convicted on all counts, the sentences are almost certainly going to run concurrently. Defendants convicted of E Felonies can have an "indeterminate" sentence imposed on them of up to 4 years and come up for parole after serving the minimum amount (at least 1 year and at most one-third the maximum; here 16 months). But judges also can sentence defendants to a "determinate" period of less than a year. This is how Allen Weisselberg could be sentenced to 5 months at Rikers. The judge also may impose probation without incarceration. Completely aside from the risk of contempt, Trump should think twice about maligning a judge who has wide discretion as to whether he does over a year in prison or only has to meet with his probation officer from time to time.
A few final points. First, we still don't know what cards Bragg is intending to play or how strong his hand is. Bragg is very smart—he was endorsed for DA by no less than Preet Bharara, and on that basis alone, I would have voted for him if I lived in Manhattan. Thus, I believe he thinks this case is strong, and I'd trust that judgment for now. Second, contrary to Mark Pomerantz's book, Cy Vance said that the tax/insurance fraud case was not ready to prosecute when he left office. If Pomerantz lied to Bragg about that, and in his book, he's really disgracing himself even more than by revealing the inner deliberations and workings of the investigation. Third, the tax/insurance case is still being investigated. If Weisselberg ever flips ("Hey, Allen, how would you like a return trip to Rikers if you don't start talking about the hush money payments?"), you can imagine a superseding indictment charging Trump with a lot more than an E Felony.
P.D. in Charlottesville, VA, writes: I'm rather disappointed with the poor quality of much of the legal commentary and "analysis" (generous use of the word) of the Manhattan DA's indictment and accompanying Statement of Facts. Their concern trolling notwithstanding, the case appears solid at this stage and many of their concerns would have been addressed by a modicum of research (and actual analysis).
First, it appears many expected the indictment to spell out all the evidence in the case in lurid detail. That's not how indictments work. Legal commentators should know that. Perhaps the issue is that few, if any, have experience in criminal prosecution. A cursory review of each of their bios indicated many law degrees and experience in other fields (civil litigation, election law, etc.) but not a lot of prosecutorial experience. That said, criminal law and procedure are bar exam topics in most (all?) jurisdictions, so they should be aware that a charging instrument (such as an indictment) must include or be accompanied by a short statement of facts to support each element of the charge(s), but that testimony, exhibits and other evidence are not required at this early stage of the process. All that will come later.
Second, many of the commentators must not have read the Statement of Facts, because it quite clearly recites the facts necessary to support the charges. It (along with the indictment tself) identifies the records falsified, who did so, when, and in what venue—all the normal bells and whistles to support an indictment. And yes, it previews (by implication) that the case relies on the testimony of Michael Cohen, but it also alludes to numerous other witnesses, as well as records of transactions, e-mails, texts and an audio recording of Cohen and the defendant planning the scheme. Why that last part hasn't been more widely reported is a mystery to me, because when the DA has the receipts and tapes, he typically has a strong case.
Third, as to Michael Cohen, it's baffling that so many "legal analysts" have opined that a jury would find his testimony non-credible on account of his prior convictions. Any lawyer knows that co-conspirator testimony is frequently used to obtain convictions. Indeed, it's how many organized criminal enterprises are brought down. Sure, the defense can raise the prior convictions to impeach his testimony but doing so will allow the prosecution on redirect to remind the jury that Cohen's convictions were for crimes committed on behalf of the defendant and involved the same matters on trial here.
Fourth, I was perturbed by the number of legal analysts who opined the case was weak based on vague references to the statute of limitations, with no further explanation. Yes, New York law imposes a 5-year statute of limitations on these felonies. However, it also provides, "In calculating the time limitation applicable to commencement of a criminal action, the following periods shall not be included... Any period following the commission of the offense during which ... the defendant was continuously outside this state[.]"
In addition, the governor of New York issued a series of executive orders during the height of the COVID-19 pandemic in 2020 that tolled statutes of limitations for 228 days, in accordance with New York Executive Law 29-a(1). Tolling extends the statute of limitations (it doesn't merely suspend it during the designated period), so the orders extended the 5-year statute of limitations by an additional 228 days. Those orders and the foregoing interpretation have already been upheld on appeal in Brash v. Richards. Given the defendant's continuous time out of state and the additional extension, the charges appear timely.
Fifth, why the skepticism about the underlying crime(s) used for felony enhancement of the falsification charges? Many teeth were gnashed over the "novel" prospect of using federal crimes to enhance state charges. However, the statement of facts (in the first two paragraphs, no less) states that the purpose of the payoff(s) was to influence the 2016 election and that the payments were mischaracterized for tax purposes and there are New York state laws on point for both:
- Sec. 17-152 of New York's election law makes it a crime to "conspire to promote or prevent the election of any person to a public office by unlawful means..."
- Secs. 1801-1806 of New York's tax code prohibit "tax fraud acts," which include filing tax returns that contain "materially false or fraudulent information" (such as falsely deducting hush money as "legal expenses").
Sixth, and finally, I don't understand the "analysts" who parrot, without examination, the talking point that the defense can just say the payoff(s) were intended to protect his marriage/family and not to improve his electoral prospects. That's an issue of fact for the jury to decide and the statement of facts undercuts that defense. Intent can be ascertained through direct and circumstantial evidence and the statement of facts alludes to quite a bit of both, including witness testimony by several parties that is corroborated by a recorded conversation and the timing of the payments. Additionally, there are also the aforesaid tax fraud acts that may be the basis for felony enhancement.
I do not practice in New York (my license is in another jurisdiction) and I won't pretend to know with certainty the outcome of any pending litigation. If I could do that, my hourly rate would be much higher! However, I'm quite disappointed at the weakness of much of the "legal analysis" at this stage of the case. There's very little research or analysis of the facts and issues. It's as if lawyers forget how to research and think critically when they become "legal analysts." Perhaps their brains melt under the hot studio lights. Or perhaps it's just easier to churn out 1,000 words of parroted talking points since they're no longer billing by the hour. Regardless, they can do better.
A.T. in Hong Kong writes: I am a lawyer and although I do not work in criminal law, I wanted to add my thoughts. You wrote:
The Trump Organization engaged in financial transactions with Michael Cohen, and then produced a paper trail that fraudulently misrepresented the nature of those transactions...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... 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.I would argue that the "other crime" is probably illegal campaign contributions. If we look at the statement of facts filed by the prosecution, we find this: "The [hush money] payment was illegal, and [Michael Cohen] has since pleaded guilty to making an illegal campaign contribution and served time in prison... The Defendant caused his entities' business records to be falsified to disguise his and others' criminal conduct."
Michael Cohen was convicted of (among other things) federal campaign finance violations. The hush money payment to Stormy Daniels was meant to influence the 2016 election and was therefore an illegal campaign contribution. There is no doubt that the law was broken—Cohen pleaded guilty. His crime was not to influence the election (lots of things influence elections); it was making a payment in excess of legal limits.
Cohen's was a federal crime, unlike the crime Trump stands accused of (i.e. falsifying business records, first degree), which is a NY state felony. This must include "an intent to commit another crime or to aid or conceal the commission thereof."
Note the statute does not say that the other crime has to be a New York state crime, or that the other crime has to be committed by the same person. The falsification does seem to have "aided" and/or "concealed" the commission of the illegal campaign payment by Cohen. I suspect, therefore, that the "other crime" is Cohen's illegal payment to Stormy Daniels.
There are a lot of open questions and there are reasons to be skeptical about the indictment, but if the above is right, then Bragg does not need to prove any underlying crime, as Cohen has already been convicted of it.
T.O. in Portland, OR, writes: I held my fire on this, waiting to see the unsealed indictment before sharing my thoughts, and having now seen it I am thoroughly unimpressed.
I'm a native New Yorker, who spent 35 plus years of my life in the state, and I've seen the New York State criminal justice system from three different vantage points. I've served on a New York Grand Jury. I've been the victim of a violent felony. I was once accused of a felony (Computer Trespass) in the same class (E, the lowest under New York law) as Trump is now accused of.
The lawyers who will surely write to you can analyze the legalities here better than I can. I will try not to tread on their expertise. What I will say is I find it very difficult to believe that any District Attorney in the state— including this one—would bring these charges against any other defendant given the same set of circumstances.
New York is generally a "pro-defendant" State, in the letter and spirit of the law, and in the way that district attorneys choose to enforce it. This is a good thing! Take it from someone accused of a crime he did not commit that I am very happy it happened in New York. My case was resolved early in the process. The DA who prosecuted it shook my hand and apologized to me at the conclusion of the matter. I simply cannot see that happening in a so-called "Tough on Crime" state.
Furthermore, had Trump remained a resident of New York instead of switching to Florida, these charges would now be outside the statute of limitations. There's an entry for your weekly schadenfreude collection! Generally, for most felonies in New York, it's 5 years, but they get around that in this case because he was out of the state and that stops the clock from running. It is, technically, legal to do this, but the age of the alleged offenses are one of the main reasons why I simply cannot see this matter being pursued against a less infamous defendant.
I am no fan of Donald Trump's. I earnestly hope to see him behind bars, but this case is not the vehicle to get him there. He is being treated differently than others would be treated by New York State and that is not something that we should condone no matter how much we despise him. Justice is supposed to be blind.
B.E. in Long Island, NY, writes: Not only did they sneak the 45th-47th President bit into Trump's fake mugshot, but they put Trump's height at 6'5".
We can't believe we overlooked that detail in the fake mug shot; many, many readers wrote in to point it out. In any event, we hope that these reader submissions advance folks' understanding of the New York case. On Friday, we'll have a similar item on the mifepristone cases from this weekend. (Z)