April 7, 2023
Yesterday the Democrats launched their biggest fundraiser ever for Donald Trump:
Donald Trump and his 2024 White House campaign are cashing in on the former president’s indictment and Tuesday’s arraignment in New York City.
Adviser Jason Miller announced on Monday night that the campaign had hauled in over $8 million in fundraising since last Thursday, when Trump became the first former president in U.S. history to be charged with a crime.
The charges brought against Trump by a partisan District Attorney are extremely weak. Reliable anti-Trumpers like the Washington Post’s Ruth Marcus recognize them as such:
[T]he fears I had in the weeks leading up to the indictment about the strength of the case against Trump were in no way allayed by Tuesday’s developments.
The indictment and an accompanying recitation of the underlying facts offers almost nothing in the way of new evidence against Trump. No surprise there — the tawdry details of Trump’s “catch and kill” scheme to suppress damaging information from adult-film actress Stormy Daniels and former Playboy model Karen McDougal about their relationships with Trump have already been well-aired.
They include the guilty plea by Trump fixer Michael Cohen, who admitted to paying off Daniels at Trump’s behest and then securing reimbursement for the $130,000 in hush money by falsely describing the payments as legal retainers.
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The theory is this: New York law makes it a crime to falsify business records. Ordinarily, that is just a misdemeanor. But if the falsification is done with intent to defraud and intent to conceal another crime, that act becomes a felony.
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Okay, but what are the other crimes Trump is accused of covering up? The indictment doesn’t say, but Bragg was asked on Tuesday, and he offered a few possibilities. First, he said, the doctored records “violated New York election law, which makes it a crime to conspire to promote a candidacy by unlawful means,” including making false statements. Second, Bragg cited the federal election law cap on contribution limits.
Yves Smith picked these theories apart:
The indictment relates solely to Trump fixer Michael Cohen’s payment of hush money to National Enquirer to kill stories they had bought from Stormy Daniels and another woman, believed to be Karen McDougal. Those payments were reimbursed, some by Trump personally, some out of Trump Organization accounts. All payments were recorded in Trump Organization records (perhaps because Trump Organization also keeps records for Trump personally? Because all or some of the personal payments were later reimbursed by Trump Organization entities?). The indictment’s 34 counts all invoke § 175.10:1
§ 175.10 Falsifying business records in the first degree.
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.
Let us stop and point out one elephant in the room. A big reason the DA has to try to bootstrap the alleged business records falsification into a first degree violation is that its statute of limitations is five years, versus two for a mere second class violation. If the Trump legal team can argue that there was no bigger crime this records hanky-panky was covering up, the case goes poof because the statute of limitations expired on the lesser offense.
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To get to a first degree falsification, there has to be an intent to commit or aid in or conceal the commission of another crime.
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The Statement of Facts [].. bangs on about the payoffs to American Media Inc. (AMI), the parent of National Enquirer, to kill the stories for the benefit of Trump’s election efforts, and depicts that as trying to illegally influence the election. As many readers know, there are a lot of problems with trying to make that the actual or intended crime that turns a second degree records violation into a first degree one.
The first is that the election laws in question are Federal, and a New York state prosecutor lacks standing to enforce Federal law.
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The second is that Federal law requires that for a payment to be an election law violation, it must be made for the sole purpose of influencing the election.
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Finally (although I have not parsed it super carefully), the Statement of Facts appears to rely on Cohen as the sole source for what Trump’s intent was. Cohen is not a reliable witness.
The question of intent is critical here. The details of the Cohen case show that the intent of his reimbursement by Trump was likely not the one the prosecutor alleges. As Yves extends in a comment:
Cohen did plead guilty to tax evasion, but none of that was related to the payoffs.
The detailed DoJ discussion of the payoffs makes it utterly clear that Cohen freelanced in negotiating with and paying AMI to kill the babe stories. Only AFTER did he go to the Trump Organization to seek reimbursement. So even if Cohen’s motivation was “primarily” to influence the election, that does NOT prove it was the Trump Organization motive. In fact, the Trump Organization had not motive because they did not cook up the scheme! Cohen was on his own!
So why pay Cohen? Wellie, the $60,000 bonus does say they appreciated his initiative. But that does not establish why. Note that the Trump Org could contend that since they has not authorized the payments to AMI, they couldn’t treat them as reimbursements. You can argue they were trying to have it both ways, not technically reimbursing Cohen but making him whole economically. We’ll see how this gets argued if it becomes an issue in the case.
The long-winded point here is that if Team Trump can argue they were paying Cohen for something other than election influence efforts, then it’s a legit tax deduction.
The prosecutor will have to prove that the Trump administration has falsified business records. That is a dubious claim in itself.
The prosecutor will then have to prove that Trump intent in doing that was to hush up another crime. If there was no other crime then the whole case is mute. The other crime the DA asserts Trump wanted to hush up could be one of two.
The first is a violation of New York election law which makes it a crime to conspire to promote a candidacy by unlawful means. The second is a violation of Federal election law for which the DA has no jurisdiction and which the Feds themselves did not prosecute.
All those points are weak. I can see them being argued in court but I doubt that any jury can be convinced that these were intended crimes.
If you shoot the king make sure you kill him. Accusing Trump of crimes that can not be proven in court will only make him stronger.
The Democrats made a huge mistake in pushing this case. It will drag out over many months giving Trump all the media time he needs.
During the 2016 campaign the media were filled with ‘bad stuff’ Trump was allegedly doing. The endless promotion helped him to win the election. In 2024 the media will again be filled with endless stories about Trump and the trial against him.
The media like to do this because anything about Trumps increases their viewership. But it is also promoting him as the anti-establishment candidate. This at no cost for his campaign.
It is unlikely that the government can win the trial against Trump. What other means will the Democrats then use to fulfill 𝕏 Biden’s promise that Trump will no again come to power?
Reprinted with permission from Moon of Alabama.