Blogs from April, 2023

Trump indictment NYC

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Former President Trump Faces 34-Count Indictment Over Alleged Hush Money

R Tamara de Silva

Donald Trump, the first former U.S. president to be criminally prosecuted, pled not guilty earlier today to a 34-count indictment charging him with falsifying business records related to alleged hush money paid to porn star Stormy Daniels during the 2016 presidential campaign. The indictment is available here.

The indictment is comprised of 34 felony counts of falsifying business records in the first degree. Each count is a separate instance of the alleged bookkeeping misconduct. No other facts or offenses are alleged, and the indictment is essentially the same paragraph repeated 24 times.  There is not much to parse or comment on as the indictment is factually sparse.  

Even if convicted on all counts, the offense charged does not necessitate a mandatory prison sentence. The offense is defined in New York as follows:

N.Y. Penal Law §§ 175.05, 175.10 provide that: A person is guilty of falsifying business records in the second degree when, with intent to defraud, he: (1) Makes or causes a false entry in the business records of an enterprise; or (2) Alters, erases, obliterates, deletes, removes or destroys a true entry in the business records of an enterprise; or (3) Omits to make a true entry in the business records of an enterprise in violation of a duty to do so which he knows to be imposed upon him by law or by the nature of his position; or (4) Prevents the making of a true entry or causes the omission thereof in the business records of an enterprise. Falsifying business records in the second degree is a class A misdemeanor. 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.

The date of the alleged conduct begins on February 14, 2017 to December 5, 2017.  The indictment references invoices, checks and ledger entries. Presumably, the other crime or concealment alleged to be the motive behind the allegedly false business entries is a payment for demand for payment made by former actress Stormy Williams. In his press conference announcing the indictment, Manhattan District Attorney referenced New York state election law but it is unclear if he is using this or federal election law as the other crime referenced.  Assuming arguendo the indictment references federal election law, it is unclear what the reporting requirement would have been-but I am not an election law expert.  It is the alleged payment to Stormy Daniels in alleged violation of election law that according the the indictment, makes the bookkeeping violations felonies.

Trump’s former counsel, Michael Cohen made a $130,000 payment to Stormy Daniels. The indictment seems to allege that this payment was made by Trump through Michael Cohen and disguised as the payment of legal fees. In 2018, Michael Cohen, through his lawyers at McDermott Will & Emery, stated that he used his own funds to pay Stormy Daniels and was not reimbursed by Trump or any Trump entity. The letter is here.

The problem with Cohen, who is presumably the principal witness and basis for the present case against Trump, is that Michael Cohen has made contradictory statements on the matter and has been convicted for lying.

This is vaguely reminiscent of the charges against former presidential candidate John Edwards. Edwards joined forces with John Kerry as his running mate in the 2004 presidential election, but they were defeated by President Bush and VP Dick Cheney. In 2008, he competed for the Democratic presidential nomination against Hillary Clinton and Barack Obama. His campaign came to a halt when The National Enquirer exposed his extramarital affair with a campaign staff member during his wife, Elizabeth's, fight against cancer. Seven months after Elizabeth passed away, Edwards faced charges of campaign finance violations. He was accused of directing nearly $1 million in donations from affluent socialite Bunny Mellon to his mistress, Rielle Hunter, with whom he had a child.

This is also reminiscent but different to the settlement of former President Bill Clinton to Paula Jones, before his impeachment proceedings for allegedly lying about his conduct with Monica Lewinsky under oath. Following a four-year battle against Paula Jones' sexual harassment lawsuit, President Bill Clinton consented on to pay Jones $850,000 in exchange for her dropping the case.

The prosecutor ran for election based on a promise to go after Trump.  I have written about prosecutorial discretion in high profile cases here.

R Tamara de Silva

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