Apr.11

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What Does Alvin Bragg Have to Prove?

Unless one of Donald Trump's Hail Mary plays works, his first criminal trial will begin on Monday. It's more complicated than some of the other cases, more difficult to understand, and probably harder to prove, but it's first, so let's take a look.

First, here are the basic facts. In 2006, Trump had a short affair with Stormy Daniels. He didn't want her to blab to the media about it being the worst 90 seconds of her life, so in 2016 he asked his then-fixer, Michael Cohen, to pay her $130,000 in return for her silence. He then reimbursed Cohen for an amount that would result in $130,000 net (plus a small fee) for Cohen after Cohen paid income taxes on it. Trump put these payments, via multiple checks, on the books of the Trump Organization as "payments for legal services rendered." That is false. Although Cohen is indeed a lawyer, he didn't give any legal advice for that money. Recording it as such violates New York State business law. In addition, legal services are tax deductible, so by falsely recording the nature of the payments, Trump also reduced his New York State income tax by claiming deductions to which he was not entitled. This is tax evasion, although Manhattan D.A. Alvin Bragg did not indict him for that (but could have).

To win his case, Bragg will have to prove four things, as follows:

• False records: Bragg will have to show that the checks to Cohen were not for legal services rendered. Daniels will testify that she got the money, but she can't testify as to how they were recorded on Trump's books. The bank statements will show all the checks but Bragg will have to convince the jury that they were not for legal services rendered. Cohen will undoubtedly testify that he did not do any legal research, make court filings, or do any other legal work for that money. It was simply a reimbursement (plus a bit more) for paying Daniels.
  
  Further weakening Trump's defense is that the check stubs state that the payments were for services rendered under a retainer agreement. But the Trump Organization won't be able to produce the retainer agreement because there was no such agreement.
  
  

  Bragg will also introduce handwritten notes from CFO Allen Weisselberg corroborating Cohen's testimony. He might also be called as a witness.

  This part should be easy because there is a clear paper trail and witnesses. However, Trump's lawyers will say that since Cohen and Weisselberg are convicted felons, you can't believe a word they say.
  
  

• Trump did it: Even if it becomes clear that records were falsified and Trump signed the checks, Trump's lawyers may try to blame Weisselberg and say that every morning he dumped a pile of checks on Trump's desk for the boss to sign. The charge states that Trump directed the plot and he will try to deflect the blame to Cohen, Weisselberg, and others. Bragg will have to convince the jury that Trump knew all about it.
  
  Witnesses will testify that Trump is a micromanager and the company couldn't spend $2 on a box of paperclips without Trump's knowledge and explicit approval. Also, from a legal perspective, Bragg can show the checks—with Trump's signature, not Weisselberg's. Trump's lawyers may argue that he didn't know what he was signing, but it is doubtful the jury will believe it.
  
  
• Intent: Somewhat trickier is that Bragg will have to prove that Trump had the records falsified with intent to commit fraud. An innocent mistake would not be fraud. Here Bragg will introduce the motive that Trump didn't want the Stormy Daniels story to come out before the election. He can also introduce the fact that Trump previously had the National Enquirer pay Playboy model Karen McDougal $150,000 in hush money for his 9-month affair with her. This would establish a pattern, and thus clear intent. McDougal was extremely naive and believed Trump loved her. Daniels had no such illusions. That's why the McDougal affair went on much longer.
  
  
• Concealment of a second crime: This may be the hardest part. If Bragg convinces the jury of all of the above, he can nail Trump, but only for a misdemeanor, the penalty for which is a small fine. To make it a felony, he has to show that Trump falsified the records to hide a different crime. What crime will Bragg use here? He could say that by keeping quiet, Daniels was making a contribution-in-kind to his election campaign, and that the contribution was (apparently) worth $130,000, far in excess of the maximum allowed donation. Trump will say that he made the payment to spare Melania's feelings.
  
  However, Cohen will destroy that argument by saying that Trump instructed him to delay the actual payment until after the election. Had Cohen pulled it off (he didn't), Trump would have reneged on the promise, Daniels surely would have gone public, and to hell with Melania's feelings. In short, the goal here is not the goal that Trump claims.
  
  Trump was not charged with the federal offense of violating election law, so the question of whether that could be the underlying crime is up to the judge. If he says it could be, that will certainly be appealed. This is potentially Bragg's Achilles' heel.
  

Will the whole trial matter at all? It might. A new Ipsos poll shows that 64% of registered voters consider it at least somewhat serious, vs. 34% who don't think so. It is also possible that many people are only vaguely aware of the charges, but the enormous coverage of the trial will likely make many more people aware of the case. And when the subject of how serious the charges are comes up, at least some reporters are going to point out that people have gone to prison for falsifying business records in New York, so the crime is real and not a witch hunt. (V)