Manhattan District Attorney Alvin Bragg is apparently on the verge of charging Donald J. Trump under New York state’s business records statute for concealing hush money payments that may have affected the outcome of the 2016 presidential election.
Falsifying business records under New York law can be charged either as a misdemeanor or a felony. The misdemeanor requires proof of one of several potential acts. Relevant to Trump is the statute’s prohibition of making “a false entry in the business records of an enterprise.” The evidence indicates he personally signed checks to Michael Cohen as reimbursement for the hush money payment. If DA Bragg can prove that Trump signed those checks—and it appears he can—and that Trump knew the payment for hush money was being falsely recorded as “legal expenses,” then Trump committed a misdemeanor (or likely a number of misdemeanors, if each false entry is charged separately).
To establish a felony (i.e., falsifying business records in the first degree), prosecutors would need to prove, in addition to the elements of the misdemeanor, that Trump’s “intent to defraud include[d] an intent to commit another crime.” There are a number of candidate crimes—and we offer an assessment of just some of the more likely options: 1) federal campaign finance crimes; 2) state campaign finance crimes; and 3) conspiracy to promote or prevent an election.
Some commentators, and Trump’s defense attorney, appear to be trying to equate the hush money payments in this case to the contributions at issue in the unsuccessful prosecution of former senator and presidential candidate John Edwards. Let us state clearly—whereas the Edwards case was borderline as to whether it should have been brought, both legally and factually, the Trump case is relatively straightforward.
Edwards was charged in a North Carolina federal court with five counts of campaign finance violations and one count of conspiracy (essentially, to commit the scheme contained within the other five counts). Many of the facts in the case were uncontested. From early 2006 through approximately August 2008, Edwards had an extramarital affair with Rielle Hunter, a former campaign videographer. The National Enquirer published allegations of the affair in October 2007, and a subsequent article in December 2007 alleging Hunter was pregnant. Edwards initially denied the affair, and his campaign aide Andrew Young claimed paternity over the baby. Over months, Edwards used payments from donors, some of which Young had collected, to pay for travel and accommodations for Young and Hunter to escape media attention. In the background of the affair, its coverup, and Edwards’ presidential campaign was his wife Elizabeth, who had stage-IV breast cancer. In an April 2007 interview, she acknowledged the cancer was likely terminal. She passed away in December 2007, survived by three children.
To secure a conviction, federal prosecutors had to prove that each of the six offenses were done willfully, which required a jury to find that Edwards knew his conduct was unlawful. That appears to have been one of their major challenges. The government relied almost entirely on the testimony of Young—who was granted immunity for cooperating in the prosecution—and that of his wife, Cheri. Both had motivation to fabricate testimony. Young had the threat of criminal prosecution hanging over his head if he failed to implicate Edwards. And Young had significant exposure were he convicted: He testified that he kept approximately $1 million in payments for his own personal use. Cheri’s motivation to fabricate was not as strong, but a desire to support her husband and perhaps to seek revenge against the man she believed had wronged them likely played a role in the jury’s minds. Additionally, the proof as to whether the donors knew where their payments were going or that the campaign solicited the payments for that purpose was less than ironclad, in part because the donors themselves were unavailable as witnesses.
Among Edwards’ defense team’s many arguments were 1) that the money was personal and not election-related for the purpose of the Federal Election Campaign Act because he used the money solely to hide the affair from his dying wife, and subsequently from their surviving children; and 2) in any event, he did not know that he could be violating federal campaign finance laws. He mounted a robust defense, calling a number of witnesses, including both a former FEC chairman (who testified as to how complicated campaign finance law is) and one of Edwards’ former lawyers (who testified in support of Edwards’ contention that he did not know the payments were illegal).
Ultimately, the jury deadlocked on five counts and acquitted Edwards of one count. Any prosecutor who tries these types of cases (or defense lawyer who defends them) will tell you that without a proverbial smoking gun, proving a willful violation of a complex statute is challenging. Nevertheless, the fact that the government came close in this case with a deadlocked jury suggests that when the proof is substantially more compelling, conviction is a real possibility. (In that case, the government decided against retrying the charges on which the jury hung).
Trump’s defense will lack many of the attributes that helped Edwards avoid conviction. Compare Cohen (an imperfect, yet credible, witness who already has served his time) with Young, whose motivation to stay out of prison clearly had an impact on his credibility. Trump also lacks the personal motivation that Edwards was able to argue—whereas Edwards’ wife was unaware of the affair, public evidence suggests that Melania already knew about Trump’s affair with Stephanie Clifford (aka Stormy Daniels). Edwards therefore could credibly argue he had a strong motive to keep the affair secret from his wife and their children. The fact that Edwards even made a payment after he dropped out of the election further buttresses that point. Moreover, whereas both Karen McDougal and Clifford were in negotiations to go public about their affairs, there is no indication that Edwards’ mistress had any similar inclination.
What’s more, the Trump payment was made only weeks before the election. And there is likely to be testimony from Cohen, David Pecker, and perhaps others that the purpose of the payment was related to the election (the non-prosecution agreement with Pecker’s AMI is one piece of evidence, and the audio recording of Trump and Cohen referring to the arrangement with Pecker is another). The Justice Department’s sentencing memorandum in Cohen’s federal criminal case is also replete with references to how the arrangement was designed—starting two months after Trump announced his presidential run—to suppress stories being published before the election. And whereas Edwards’ former lawyer testified in his defense as to his good faith, Trump’s former lawyer (Cohen) will testify as to his bad faith. The proof as to the facts of a falsified business record and whichever likely predicate crime is alleged against Trump are also much stronger than were the facts of the campaign finance violations alleged against Edwards.
In short, although the two cases share some overlaps involving presidential campaigns and secret affairs, the outcome of the cases is likely to be very different.
The hush money payments were a significant matter for our democracy. The election of 2016 was a close one, in which Donald Trump was already coping with a sex scandal because of the Access Hollywood tape. Had the Clifford allegations emerged, they might have changed the outcome of the election. And the payments certainly seem to run afoul of the New York books and records statute. While bringing a felony case presents complexities, DA Bragg is to be applauded for taking the matter seriously.
Trump for his part recognizes the peril he faces and is responding in a familiar fashion. His call to “PROTEST, PROTEST, PROTEST!!” is reminiscent of his “will be wild!” tweet summoning the mob to Jan. 6. Bragg has said his office does not tolerate attempts to intimidate—rightly so. Trump’s incitement failed last time and will here as well.
We await the DA’s next move.
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