This is the part that gets me:
Lying on New York state business records is a crime, though usually charged as a misdemeanor.
Also, the statute of limitations had also expired on those charges.
But Bragg made those charges a felony, and got around the statute of limitations, by saying they were conducted with the “intent” to commit another crime, in this case, a conspiracy to help get election in 2016.
Regarding the upgrading of the misdemeanor charges to felonies, there’s more to it than that.
While falsification of business records only requires someone to have “[made] or [caused] a false entry in the business records of an enterprise” under New York law, the crime is just a misdemeanor at that stage, and becomes a felony if it’s proven the defendant falsified records “with intent to defraud that includes an intent to commit another crime or to aid or conceal the commission thereof.”
That means the jury must show Trump falsified records to cover a second crime, which prosecutors allege is New York’s election law prohibiting “conspir[ing] to promote or prevent the election of any person to a public office by unlawful means”—since Cohen allegedly paid off Daniels in order to boost Trump’s chances in the 2016 election.
Since that law requires defendants to have influenced an election through “unlawful means,” jurors will also have to determine whether a third crime was committed that made the hush money scheme violate the election law.
In his instructions Wednesday, Judge Juan Merchan gave jurors several choices for that third crime to show “unlawful means.”
The third “unlawful” action could be violating the Federal Election Campaign Act, meaning Cohen’s payment to Daniels was a contribution to Trump’s campaign that exceeded the legal limit—which Cohen already pleaded guilty to.
The third crime could also be falsifying other business records, after Cohen created a fake shell company to send the Daniels payment in 2016, or violating tax laws by making false entries on tax returns related to the payment. Source
So while all the jurors must agree on the first and second crimes—that Trump falsified business records in order to cover up the election interference crime— they can differ on the third crime. As long as they all believe that any one of the possible “unlawful means” has been proven by the prosecution, then Trump can legally be convicted for a felony.
I have a question, though…
I was under the impression that:
- Prostitution is legal in the state of Nevada when done outside of certain city limits (Las Vegas, for instance)
- NDAs can be applicable for any kind of legal activity
- The Stormy Daniels NDA is a legitimate document, and Trump had a legitimate expectation of privacy
Potentially, he inappropriately moved around funds and falsified documents when procuring the NDA, but there is basically no crime here, right?
The crime would have to be that Trump falsified business documents as they pertain to election funds, and potentially a separate crime of the illegal use of election funds for non-election purposes…
I haven’t followed the case closely, but perhaps you can enlighten me.
I’m no legal expert; I’m just going off what I’ve read here and there throughout this case.
The NDA/hush money payment was not an illegal transaction, no, but that’s not what Trump was on trial for. He was accused of falsifying business records, which is a crime if done with the intent to cover up another crime.
In this case, the prosecution argued successfully that not only was the conspiracy to influence the outcome of the 2016 election criminal, but also that the way they handled the payments contravened NY election campaign law (for which Trump’s lawyer has already been convicted).
In this case, the prosecution argued successfully that not only was the conspiracy to influence the outcome of the 2016 election criminal, but also that the way they handled the payments contravened NY election campaign law (for which Trump’s lawyer has already been convicted).
I also saw that there is analysis that this was a truly unprecedneted move (see this Michael Tracey tweet).
By moving money around for an NDA, he was attempting to influence the 2016 election… Hmm. I am not that sure we could argue that this was the motive, as it seems entirely likely that he would have created an NDA whether or not there was an election as he is a famous figure.
I do not know what that would mean other than making it dubious to argue that it was an attempt to "influence the electiojn…*
But something else about that: how would getting a legal NDA signed be an attempt to illegally interfere with an election, anyways?
It seems we would have to know something about the charges of NY election campaign violations to comment further - which also strikes me as a bit off, because it seems dubious that a businessman would necessarily be the one who would normally have his ass in the sling for campaign finance laws and such when it would be assumed that Trump’s staffers would be handling the way this all would play out.
What obligation does any Presidential candidate have to personally know whether or not his underlings are violating state campaign laws…? If he hired them in good faith, it would appear to be completely out of his hands.
The case is legally unprecedented, sure. However, just because the approach was unorthodox, doesn’t mean it wasn’t legal and legitimate. Anyway, that’s what the appeal process is for, and Trump & Co can try and see if a higher court will weigh in and settle the matter in their favor.
As for election interference, it was pretty clear that the Trump team wanted to keep Daniels quiet in order to avoid losing the election. The infamous “grab them by the pussy” tape had just come out and it was a bombshell for Trump’s campaign. In the aftermath, Daniels approached the Nation Enquirer saying she would go on the record, and had she done so then her story, on top of the bragging openly about sexual assault, could have been the death knell for Trump’s bid for president. The fact that Trump then used campaign money rather than his own was what made it illegal, according to federal campaign law, and Trump’s legal team must have known that. Also, even if Trump himself had somehow not been aware of that, he was certainly aware that campaign funds were being used, and what for.
One last thing I’ll add that many commentators aren’t mentioning is just how badly Trump and his defense team fucked up in court.
First, Trump himself was held in contempt on multiple occasions simply because he couldn’t STFU and stop making public accusations and false statements about the ongoing trial in public and on social media.
Second, as noted in Honig’s analysis, this was a somewhat convoluted and ambitious case that had a few key weak areas that a competent and focused defense should have at least been able to poke a couple of major holes in. Instead, they completely blew it. This NY Times piece by a federal lawyer goes into the detail, but I’ll just quote a good extract here:
Instead of telling a simple story, Mr. Trump’s defense was a haphazard cacophony of denials and personal attacks. That may work for a Trump rally or a segment on Fox News, but it doesn’t work in a courtroom. Perhaps Mr. Trump’s team was also pursuing a political or press strategy, but it certainly wasn’t a good legal strategy. The powerful defense available to Mr. Trump’s attorneys was lost amid all the clutter.
If Trump’s legal team is failing him, that’s a pity since unprecedented cases do tend to set precedents.
I haven’t followed any of this really close to comment - but yes, thanks for your input and the link.
that’s a pity since unprecedented cases do tend to set precedents.
Not really - that’s just the criminal justice system working as intended.
What is the Dem strategy here? This makes them look awful. They can’t beat Trump in the election so resort to stealing elections and then rigging courts…
well anyway, will Trump just appeal to higher courts?
The claim that this trial was rigged has as much supporting evidence as the claim that the 2020 election was stolen.
i.e. basically none.
He will.
But I imagine it will not be resolved in time.
It also confirms what most people on the left think about Trump, and I think to some degree it appeals to a lot of moderates and even rule of law conservatives that will now feel bad about this conviction.
