The Trump Indictment Explained
It was another day for the history books. On Tuesday, Donald Trump became the first former president to be indicted on criminal charges. (Although it turns out that Ulysses Grant was the first president to be arrested. The charge was speeding in his carriage and Grant was in office at the time.) The Former Guy flew to New York to turn himself in and be arraigned. Those expecting a white Bronco scenario or a standoff at Mar-a-Lago were disappointed.
The indictment was unsealed after the hearing and is now available online. Reports from the courtroom say that the former president was uncharacteristically quiet during the proceeding. The 34-count indictment charges Trump with falsifying business records in the first degree in violation of Penal Law 175.10. Thirty-four times.
I’m not going to run down the laundry list of indictments. The real details of the case are in the Statement of Facts, which is a shorter document that is also available online.
The prosecution’s case is similar to what many observers speculated about over the past few weeks. The core of the case is that Donald Trump arranged to have Michael Cohen, “Lawyer A,” pay off Stormy Daniels to keep quiet about their affair. Trump reimbursed Cohen and fraudulently described the payments as legal fees in the records of the Donald J. Trump Revocable Trust.
But wait! There’s more.
The statement also details a series of similar arrangements with David Pecker, the former head of the parent company of the National Enquirer, who is referred to as “AMI CEO.” In a Trump Tower meeting in 2015, Pecker allegedly agreed to be the “eyes and ears” for the Trump campaign and look for negative stories.
Per DA Bragg’s findings, Pecker found at least three such stories. The first was a claim by a doorman in the fall of 2015 that Trump had fathered a child out of wedlock. The second was a claim in June 2016 by Woman 1, Karen McDougal, that she had an affair with Donald Trump. The third allegation, in October 2016, was Stormy Daniels’s claim of an affair. AMI paid the doorman and McDougal, allegedly making false records about the transactions.
As is well known at this point, Michael Cohen made the payment to Daniels. Interestingly, paragraph 19 of the statement states that Trump instructed Cohen to delay the transaction until after the election. After the election, “they could avoid paying altogether because at that point it would not matter if the story became public.”
If Bragg can specifically point to evidence that shows that the coverup was related to the election, that motive is important in establishing the link to campaign finance law. It also helps to eliminate Trump’s defense that the coverup was for family or marital reasons rather than due to the election.
Paragraphs 25 and 26 note that Cohen’s reimbursement included payment for another matter as well. The two payments totaled $180,000, but the payment was doubled so that Cohen “would be left with $180,000 after paying approximately 50 percent in taxes.” A $60,000 bonus was added for a total of $420,000, paid in twelve installments of $35,000. These payments were rendered after Cohen sent bills for legal services to the Trump Organization, but Trump never had Cohen on retainer.
Michael Cohen ultimately pled guilty to his role in the scheme. AMI entered a nonprosecution agreement with the US Attorney’s Office for the Southern District of New York. As part of that agreement, AMI admitted that it had killed the McDougal story “before the 2016 presidential election and thereby influence that election.”
All of the counts against Trump relate to New York Penal Law 175.10. Per the law, a felony occurs “when, with intent to defraud that includes an intent to commit another crime or to aid or conceal the commission thereof, that person makes or causes a false entry in the business records of an enterprise….” Note that the falsification does not have to be in the defendant’s business records and Trump does not have to make the falsification himself.
If you listened to the pundits yesterday afternoon, you probably heard Democrats calling the charges serious and Republicans saying that they amounted to nothing. The truth, once again, seems to be somewhere in the middle.
If the Statement of Facts is correct, then it does seem that Trump broke the law. If Bragg can prove his assertions, Trump’s illicit payments and records can be tied to tax crimes as well as campaign finance violations.
On the other hand, the offense is small potatoes. The exact size of the potatoes is still in dispute, however.
Yesterday’s filings did not address the issue of the statute of limitations. The events described took place from 2015 to 2017 with the last payment to Cohen in December 2017. The statute of limitations on the felony falsification crime is five years while the second degree misdemeanor charge has a statute of limitations of two years. The first-degree falsification charge would seem to be within time limit, but it remains to be seen whether the felony indictment will stick.
The stakes are real. If Trump is convicted on the felony charge, he can be sentenced to up to 20 years or be fined up to $1 million. No one thinks that will be the case with Trump, but a jail term is not impossible.
Can Trump be convicted? A lot will depend on the jury and what Bragg can prove. So far, we’ve only seen his claims, not his evidence.
There is rampant speculation that David Pecker, the AMI CEO, has flipped on Trump and will testify for the prosecution. We do know that Pecker testified before the grand jury last week. If both Cohen and Pecker testify against Trump and can support their allegations with a paper trail, Bragg’s case just got a lot stronger.
Bragg’s case is similar to what people speculated about over the past few weeks, but there does seem to be more to it than I suspected. At this point, I have no idea if Trump will be convicted or if he will go to jail if he is.
The New York case looks stronger to me than it did last week, but I still say it’s the weakest of Trump’s legal troubles. It won’t be the last, however. I fully expect more indictments for Trump to be coming down the pike, and those will represent much larger potatoes.
“ The events described took place from 2015 to 2017 with the last payment to Cohen in December 2017. The statute of limitations on the felony falsification crime is five years while the second degree misdemeanor charge has a statute of limitations of two years. The first-degree falsification charge would seem to be within time limit…”
How do you figure?
Are we going with the he was out of state argument?Report
Em, I’m not a criminal practitioner, but the Statement of Facts seemed to me to spell out a conspiracy, but the Indictment did not charge one. Any thoughts on why not?Report
My cynical side says it’s because he’D have to be specific about what “underlying crime” they were conspiring to commit, which is something they’re not being crystal clear on, IMO.Report
I wonder if there’s a “relation back” doctrine in NY law that might apply here. If the most recent act in furtherance took place within the limitations period, then can you reach back in time to other, earlier acts in furtherance? Is that all part of committing the same crime?Report
Yeah, the AMI ‘catch-and-kill’ deal seems like it could withstand scrutiny.
Though I’m guessing that lots of important people have ‘catch-and-kill’ deals out there that we should probably trackdown as fraud and/or payments in-lieu of.Report
And this guy was paid to keep his mouth shut?Report
That guy was actually lying. Like, everyone agrees it was just a lie, there’s no evidence it’s true.Report
It’s worth reminding people that a good chunk of Trump’s problem here is _not_ what he did, it’s that he specifically rigged it to keep from having to pay taxes on it, which is why it’s structured in this completely inane way and he falsified records.
He could have just written these people a check, out of his, ya know, _bank account_, and that would have been legal. You can pay people not to say things they know about you. It’s entirely legal. (They have to be careful asking or it can be extortion, but it’s still entirely legal to pay off extortion.)
Yes, _in theory_, that payout could have been a campaign contribution (made by himself), and _in theory_ they could have somehow proved it was to influence the election instead of literally anything else, but it would have been pretty hard. Although Trump actually is on record saying it was that because he tried to _back out_ of the payment after he won exactly because it didn’t matter anymore.
But, instead, he decided to illegally funnel money in a very complicated way from his company (Aka, money he hadn’t paid income tax on.), and then commit a bunch of crimes to cover it up.
It’s interesting to compare this to John Edwards, who had friends of his make the payoff, and no one really lied about it, which made it a good deal more legal…although he ultimately got tripped up by that counting as an illegal campaign contribution. Well, he got away with it, I mean, but that was the actual case against him. They just couldn’t prove it. (Unlike the fact they have Trump on record talking about exactly this.)
Everyone, if you ever find yourself in this circumstance: Write the damn check from your bank account. In an entirely legal way just like you’re pay anyone else. Be sure, if you discuss it with anyone, to emphasis that you are covering up this affair to _protect your marriage_, not to get elected, and be sure to continue the payouts after the election to show that. They’ll be on really shaky grounds to come after you.
It. Is. Not. Illegal. To. Cover. Up. Affairs. With. Payoffs. It is illegal to do all sorts of crimes while doing that.Report
If I ever become a billionaire and then run for public office, the first step will be to hire better lawyers.Report
I don’t think Trump listens to his lawyers, so better would not help much.Report
Trump has this weird problem of, instead of just actually _paying_ lawyers, he tries to set up extremely weird payment options with them, like what happened here, where he involved paying his lawyer as part of the scam.
It’s because, and this is something that is easy to forget: Trump’s business is actually money laundering. In that his business is expensive real estate, and buying and selling expensive real estate is literally how money laundering is. Like, that’s the entire point of that existing, trading luxury condos for different amounts. The whole thing is just money laundering, from top to bottom…they’re used to store value in, they’re traded at above and below market prices between people, it’s all just money laundering. It’s just a way to move money around and give it a legal origin. “No, I didn’t earn that money from my hypothetical crimes, I earned it by buying this condo for X and selling it for 3X two weeks later…yes, the person I sold it to then immediately sold it for less, and is also very obvious Russia oligarch who you claimed was paying me off, but I don’t see how that’s relevant.”
People don’t really grasp that that entire structure, something like 80% of high end real estate transactions, is just money laundering.
And I don’t know how much money laundering Trump actually does (Apparently not enough to keep a casino or two afloat!) but that’s the universe he operates in, the mental mindset of ‘Things are not bought with openly exchanging cash for good and services’, like normal humans, but with ‘Things are done via incredibly convoluted deals that people can’t figure out to avoid paying taxes’.
Of course, another problem is, when he promises to pay people normally in cash, he, uh, doesn’t. Good lawyers know this, and stopped working for him a while ago. It’s the bad lawyers who are willing to go in on scams with him.
This is because he has a lot less money than he claims to have, and also banks won’t loan to him anymore because he’s incredibly bad at paying them back.
Which, as you probably remember, Dark, I pointed out is how the super-rich actual operate…getting loans against their assets so they don’t have to pay taxes on them. Banks refusing to loan to Trump utterly screws Trump over, it means he can’t operate in normal Rich Person mode. If he could have gotten a loan he could have just…borrowed money to pay Stormy Daniels off and not had to pay income tax on it. But as it was, his options were ‘Have the Trump Organization pay him some cash that would be taxable as income so he could write a personal check to her’ (legal) or ‘Commit a bunch of crimes to structure a payment directly out of his corporation to her’ (not legal)
And the second is how his brain works.Report