Donald Trump managed to continue adding historical firsts -- of the worst kind -- to his presidential legacy. On April 4, 2023, Trump appeared in a Manhattan courtroom for arraignment on thirty four criminal charges, all tied to business records falsification to avoid disclosure of an affair in the heat of the 2016 election. The indictment is straightforward but for both those in favor of the charges and those opposed, its simplicity leaves many questions unanswered. The actual PDF for the indictment can be viewed here:
https://www.scribd.com/document/636100415/Donald-J-Trump-Indictment#download&from_embedThe charges involve three tasks (submission of an invoice, general ledger entries in business accounting systems and checks signed by Donald Trump) repeated eleven times between February and December of 2017. All of the invoices were submitted by Michael Cohen. The checks were all written against an account associated with the Donald J Trump Revocable Trust or Donald J Trump, depending upon the month.
- (1-4) February 14, 2017 - an invoice, two General Ledge entries, a check from DJTRT,
- (5-7) March 16, 2017 - an invoice, a General Ledger entry, a check from DJTRT,
- (8-10) April 13 thru June 19, 2017 -- an invoice, a General Ledger entry, a check from DJT
- (11-13) May 22-23, 2017 -- an invoice, a general ledger entry, a check from DJT
- (14-16) June 16-19 -- an invoice, a general ledger entry, a check from DJT
- (17-19) July 11 -- an invoice, a general ledger entry, a check from DJT
- (20-22) August 1 -- an invoice, a general ledger entry, a check from DJT
- (23-25) September 11-12 -- an invoice, a general ledger entry, a check from DJT
- (26-28) October 18 -- an invoice, a general ledger entry, a check from DJT
- (29-31) November 20-21 -- an invoice, a general ledger entry, a check from DJT
- (32-34) December 1 -- an invoice, a general ledger entry, a check from DJT
All thirty four counts are for violations of the same section of the New York State Penal code:
https://www.nysenate.gov/legislation/laws/PEN/175.10§ 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.
Falsifying business records in the first degree is a class E felony.
At his press conference, Bragg was asked what prompted his office to pursue the indictment when his predecessor had not. Bragg was also asked to name the secondary crimes that were abetted by the crimes related to falsifying records. Bragg responded by saying NYS law does not require the other secondary crimes that escalate from misdemeanor to felony to be named per se in an indictment but that his prior comments referenced crimes such as violation of campaign contribution limits (presumably under federal and NYS law) and conspiracy. In response to the question of why now when an indictment was not pursued by his predecessor, Bragg stated that new information not previously in the Manhattan DA office's possession became available that was pertinent to his decision to indict.
These comments seem to confirm that the decision to pursue an indictment was driven by the fact that any business accounting manipulation will inevitably alter federal and state tax calculations. They also seem to confirm that accounting information collected by NYS Attorney General Latitia James may have supplied additional details on other accounting manipulations tied to Karen McDougal and the 2015 general "kill and capture" agreement reached between Trump and American Media Incorporated which set the pattern for the Stormy Daniels iteration of the scheme. Those AMI related interactions may have triggered a recall of David Peck who may have divulged additional conversations between AMI, Cohen and Trump explicitly confirming the catch and kill arrangements were specifically initiated to assist the Trump campaign. Again, a kill and capture agreement itself is legal but if incurred for the benefit of a political campaign, it is a campaign expense and must be reflected on campaign books. Omitting it knowing it benefits the campaign is a campaign finance violation. Omitting an expense that is $130,000 is far above the individual campaign contribution limit ($3300 to an individual candidate or $41,300 to a party) which is also a violation of campaign finance laws.
The Bragg press conference and comments shared by various officials and ex-prosecutors in the days prior to the release of the indictment both emphasized another point. The Manhattan DA routinely prosecutes cases of business records falsification, for amounts significantly smaller than $130,000 (or the $420,000 eventually involved with Michael Cohen's reimbursement via grossed up bonuses).
https://www.justsecurity.org/85605/survey-of-past-new-york-felony-prosecutions-for-falsifying-business-records/The Trump case is NOT an example of a partisan DA pursuing a prominent politician to a degree far beyond that applied for other citizens. HUNDREDS of cases have been prosecuted just in the last two years. Except for the name on the docket, there's actually little that is unique about the Trump case.
This catch and kill case raises another question for both Trump supporters and prosecution backers. The federal government PROSECUTED Michael Cohen on fraud charges on these exact same facts and explicitly identified Trump as an unindicted actor in the crimes. Of course, the Justice Department under William Barr didn't pursue prosecution at the time because, well… Barr wasn't going to charge Trump but apparently no other US Attorney General would likely indict a sitting President, citing not Constitutional language or centuries of legal precedent but a fifty year old internal Justice Department policy document crafted in a different Republican administration in 1973. So after Trump left office, why didn't the Justice Department under Merrick Garland immediately resurrect the case in its Southern District of New York region and charge ex-President Trump?
The answer lies in the intersection of justice and politics in a world with limited resources and attention spans. No prosecutor's office at any federal, state or local jurisdiction has enough financial resources and attorneys to prosecute every crime in its jurisdiction. A single action can trigger violations of multiple laws at both federal and state levels simultaneously, some violations more obvious (to defendants and potential jurors alike) than others. Every decision to prosecute involves an analysis of the POSSIBLE charges, the charges with the clearest EVIDENCE, the charges EASIEST TO EXPLAIN to a jury (both a grand jury to obtain an indictment and a petit jury to evaluate guilt or innocence) and the charges that would result in the MOST APPROPRIATE SENTENCE upon conviction.
Maybe Merrick Garland will eventually write a book explaining his thought process but, at the moment, outsiders can only guess the rationale applied to this case. The easy answer might be that Garland was (and may still be) too timid and was hoping the department could just focus on new cases and create a better environment going forward, failing to recognize the corrosion still being injected into the Justice Department from four years of inertia. Alternatively, it could be that Garland began his tenure recognizing case work stemming from the January 6 insurrection would eventually hit his desk. That may have triggered a great deal of internal investigations unseen by the public as the House began its investigations in parallel. As those efforts continued, his team may have concluded the January 6 insurrection and possibly the Georgia case would DEFINITELY swamp his department's supply of resources and political capital and that the catch and kill case could be more effectively delegated to state level prosecution. Such a decision to delegate shouldn't be interpreted as a case have NO merits, only a reflection of decisions about optimizing resources on a nearly daily basis.
Not stated by Bragg or reflected in any commentary about the indictment contents and the process are two final points. First, an indictment itself is not intended or required to serve as a public roadmap for the prosecution to explain to the public or the defendant HOW it's case will be sequenced and presented in court. It's not a playbook. It is only a dry laundry list itemizing the actor, approximate date and statute of each count. The indictment released on April 4, 2023 is NOT a reflection of the entire pool of evidence Bragg has amassed for this collection of charges. It may not even reflect other charges still lurking that required more investigation.
Second, language and semantics are important. It is not accurate to say prior Manhattan DA Cyrus Vance "decided" that an indictment related to this set of facts would not (ever) be attempted. He simply vacated the office without pursuing a grand jury indictment during his tenure. The investigation itself was still underway as Bragg took over. Bragg continued the work, alienated two of his own prosecutors in the process, recalled numerous witnesses for more details and increased his confidence in the case to the point he was comfortable submitting it to a grand jury. This is why prosecutors should normally NOT SAY A WORD amid investigations or at their conclusion when no charges are pursued. A prosecutor who decides NOT to pursue charges at a specific point in time is NOT relinquishing the right to file charges at a later point in time. There is no "double jeopardy" law at the state or federal level for being INVESTIGATED for crimes. The only thing that ends that capability is the statute of limitations for the crimes alleged.
WTH
