The Trial of "Donald T"

C’est magnifique (pour la gauche) mais ce n’est pas la loi.

Prefatory note: The prosecution in People v. Trump will soon rest. My eyes haven’t been glued to the case, but I’ve paid enough attention to justify a few thoughts, which I set down as much to put them into order in my mind as to convince anyone else that they are correct. After this post, I shall probably forswear further commentary on the ex-President’s legal entanglements.

If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted. With the law books filled with a great assortment of crimes, a prosecutor stands a fair chance of finding at least a technical violation of some act on the part of almost anyone. In such a case, it is not a question of discovering the commission of a crime and then looking for the man who has committed it, it is a question of picking the man and then searching the law books, or putting investigators to work, to pin some offense on him. It is in this realm-in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.

– Attorney General (later Justice) Robert H. Jackson, Address to the Annual Conference of United States Attorneys, April 1, 1940

Like the famous Joseph K, Donald Trump is being tried and does not know the charges against him. There is, indeed, an indictment that states an offense, but that offense is a misdemeanor (falsifying business records in the second degree) for which the statute of limitations expired more than six years ago. The indictment elevates the misdemeanor to a felony with a longer limitation, specifically, the Class E felony of “falsifying business records in the first degree”. As stated in the New York Penal Law, §175.10:

A person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.

That “other crime” is the gravamen of the charge against Donald T. The State must prove beyond a reasonable doubt that he intended to commit, aid or conceal it. But what is it? The common sense notion that the indictment must disclose “it” to the defendant is reinforced by the Sixth Amendment to the Constitution:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. [emphasis added]

The indictment of Donald T is silent concerning the “other crime”. Not only that, but the nature of that crime still remains fuzzy in the fourth week of his trial, after the testimony of 18 witnesses and the introduction of a mass of documents. A post on Lawfare, a web site unsympathetic to the defendant, quotes what the prosecutors said when they opened their case:

During opening statements on April 22, prosecutor Matthew Colangelo emphasized the role of § 17-152 [of the New York election law] in the district attorney’s case, declaring, “This was a planned, coordinated long-running conspiracy to influence the 2016 election, to help Donald Trump get elected.” Senior Trial Counsel Joshua Steinglass further underlined the importance of the statute the following day, describing § 17-152 as “the primary crime that we have alleged” as an object offense. “The entire case is predicated on the idea that there was a conspiracy to influence the election in 2016,” Steinglass said.

The cited section states:

Any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor. [emphasis added]

The only “means” about which the State has offered evidence is Donald Trump’s $420,000 payment to “fixer” Michael Cohen, which allegedly reimbursed him for $130,000 that he paid to Stephanie Clifford, a/k/a “Stormy Daniels”, in exchange for an agreement not to claim that she and Donald Trump had sexual relations in 2006. Miz Clifford’s graphic description of that encounter was the most – um, colorful – testimony in the trial so far. It didn’t, however, include any evidence concerning unlawful means of influencing elections.

What evidence did the prosecution present on that crucial point? It can be summarized as consisting of these (in some instances controverted) facts:

• Donald Trump stated at various times to various people that Miz Clifford’s accusation would damage his Presidential campaign.

• Trump had in the past arranged for the National Enquirer to purchase exclusive rights to stories that would put him in a bad light, and the paper had then, at his request, refrained from publishing them. It did the same during the 2016 campaign. The jury heard a great deal about two of those “catch and kill” schemes. It should be noted, though, that neither of them involved any Trump Organization business records. The evidence concerning them showed only that Donald Trump has a propensity for suppressing unfavorable news about himself.

• Michael Cohen paid Stephanie Clifford $130,000 shortly before the 2016 Presidential election, and she signed a nondisclosure agreement binding her not to publicize her alleged affair with Trump.

• Trump encouraged Cohen to obtain the nondisclosure agreement and promised to reimburse the cost of buying Miz Clifford’s silence.

• In 2017 Cohen billed the Trump Organization for a total of $420,000, described on the invoices as a retainer for Cohen’s legal services. According to Cohen, no retainer agreement existed, and the service for which he was actually compensated was securing the nondisclosure agreement.

• Trump paid two of Cohen’s invoices from his revocable trust and the rest from his personal checking account.

If “conspiracy to influence the election in 2016” were a crime, all of the preceding evidence would bear on it, but to sustain a conviction under the New York statutes, the crime must have two additional elements: First, the object of the conspiracy must have been “to promote or prevent the election of any person to a public office by unlawful means”. Second, the business records must have been falsified with “an intent to commit another crime or to aid or conceal the commission thereof”.

The prosecution’s opening statement asserted that Trump and his co-conspirators made “illegal expenditures” that were concealed by “using doctored corporate records and bank forms”. The jury has not been told, however, why the expenditures in evidence, namely, the payments to Miz Clifford by Cohen and to Cohen by Donald Trump, were illegal. Trump and Miz Clifford could legally enter into a nondisclosure agreement, so long as it wasn’t procured by force, fraud, blackmail or the like. Similarly, the prosecution has cited no New York law that would have barred Trump from reimbursing Cohen for an expenditure made on Trump’s behalf. Characterizing the reimbursement as payment of legal fees is, if false, no more than the misdemeanor offense of falsifying business records, not a separate crime that is being committed or concealed by the falsification.

Commentators, including the Lawfare post linked above, have identified federal election law as the most plausible “other crime”. The prosecution raised that possibility in motions prior to the trial, but it hasn’t presented any evidence to sustain it. Lawfare says of it, “Bragg’s legal theory is genuinely tangled – though the district attorney’s office is doing its best to clarify matters. The next few weeks will show whether he’s able to walk the jury through it.” That was written a few days after the trial began. The “next few weeks” have passed. The prosecution has made no effort “to walk the jury through it”.

The walk would in any case be a difficult one. When Michael Cohen was prosecuted for tax evasion and bank fraud (crimes that had no relationship to Donald Trump or the Trump Organization), his guilty plea included a superfluous admission that his payment to Miz Clifford was a contribution to Trump’s Presidential campaign in excess of the $2,700 limit on what he could legally give. That statement isn’t evidence that Trump committed any offense, and the judge ruled before trial that the prosecution could not introduce it into evidence (one of his few rulings in favor of the defense).

Building on Cohen’s plea, the Lawfare writer hypothesizes that Trump knowingly accepted an illegal contribution and that the Trump Organization’s records were falsified to conceal that crime. She regards it as strange “that the U.S. Attorney’s Office for the Southern District of New York itself never brought federal charges against Trump under FECA – a decision for which there has never been a public explanation”.

Maybe there wasn’t a public explanation because the theory suffers from an elementary and glaring flaw and is, in fact, disproved by evidence presented at the trial. Cohen testified that Trump promised to pay him back if he secured an agreement with Miz Clifford. The agreement was secured, and Trump repaid as promised, with checks drawn on personal bank accounts. Cohen was, then, a conduit for a Trump-to-Clifford payment.

It would have been illegal for Michael Cohen to contribute $130,000 to the Trump campaign, but Donald Trump wasn’t bound by that limitation. In 1976 the Supreme Court held, in Buckley v. Valeo, that limiting what candidates can spend on their own campaigns from their private funds is unconstitutional. The payment “concealed” by the allegedly falsified records was therefore not unlawful. It follows that Trump and his fellow “conspirators” did not seek to sway the election by “unlawful means”, from which it further follows that there was no “other crime” that could be concealed by falsified business records.

It is hard to believe that District Attorney Bragg and his staff are oblivious to all of the foregoing. That would explain why they have been so reticent to “walk the jury through” the crime that Donald T supposedly committed. Even a Manhattan jury might conclude that T wasn’t guilty, which would be a catastrophe from the D.A.’s point of view. He would be blamed for his failure, and Trump would crow about being vindicated. It’s even possible that many voters would begin to doubt the validity of the other Trump indictments. The prosecution thus has a strong motive to whisper darkly about “a planned, coordinated long-running conspiracy to influence the 2016 election” without showing that the “conspiracy” was carried out in violation of the law.

The prosecutors also have a motive for introducing irrelevant, inflammatory evidence, such as Stephanie Clifford’s testimony, which furnishes no information about falsified business records but might convince jurors that Donald T is so villainous that he must be convicted of something, anything.

When he ran for district attorney, Alvin Bragg promised to prosecute Donald T. Once he was in office, he tried to renege on that promise but found the political heat too searing. He is now stuck with the near certain prospect that a guilty verdict will be reversed on appeal and the consolation that the reversal will not occur before November 5, 2024.

The prosecution’s strategy has placed the defense in an odd position. It can’t try to refute the charge of concealing a crime, because it doesn’t know what crime was supposedly concealed, and the judge has so far not compelled the State to show its hand. The defense’s only resort is to attack the prosecution’s narrative in the hope that the jurors can be imbued with reasonable doubt about its accuracy. Today, for instance, the lead defense attorney devoted much effort to undermining Cohen’s account of a key event. Per the New York Times:

At issue was a brief phone call on the night of Oct. 24, 2016, during which Cohen had previously testified that he had updated Trump about a hush-money deal with a porn star, Stormy Daniels, and “the resolution of it.” That resolution, a $130,000 payment, was made days later and undergirds the case against Trump, the first American president to stand trial.

But during a tense and theatrical showdown, Blanche tried to get Cohen to admit that he had lied about the call, suggesting he was instead talking to Trump’s bodyguard, Keith Schiller, about a prank phone call Cohen had received from a teenager.

“You were actually talking to Mr. Schiller about harassing phone calls from a 14-year-old,” Blanche said, heatedly, his voice pitched.

Cohen stood firm, saying that in light of phone records he’d examined, “I believe I spoke to Mr. Trump.”

Blanche pounced: “The jury doesn’t want to hear what you think happened.”

The prosecution objected, and the judge, Juan Merchan, sustained.

That moment landed just before lunch, bringing the day’s first act curtain down with a bang.

Cohen’s testimony, if true, doesn’t furnish evidence of any unlawful act. If the prosecution were trying to establish a violation of federal election law, it would have no use for evidence that Trump closely followed the Cohen-Clifford negotiations; his interest was natural, since he would be paying Miz Clifford. But the defense has no opening to point to the legal flaws in the case, and the attempt would simply puzzle the jurors, who have been given no reason to think about the intricacies of federal election law.

In a properly conducted trial, the defense’s motion for a directed verdict at the close of the State’s case would be granted in an instant. But no one believes that this is an ordinary trial. The saga of Donald T, like that of Joseph K, will continue.