The New York Case Against Trump Relies on a ‘Twisty’ Legal Theory That Reeks of Desperation
“When Trump lawyer Michael Cohen paid porn star Stormy Daniels $130,000 shortly before the 2016 presidential election to stop her from talking about her purported 2006 sexual encounter with Trump, that transaction was “not illegal,” Trump’s lead defense attorney, Todd Blanche, said during his opening statement last week. “Entering into a nondisclosure agreement is perfectly legal. Companies do that all the time….Executives, people who are wealthy, people who are famous enter into nondisclosure agreements regularly, and there’s nothing illegal about it.”
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“Trump is not charged with “conspiracy” or “election fraud.” He is charged with violating a New York law against “falsifying business records” with “intent to defraud.” Trump allegedly did that 34 times by disguising his 2017 reimbursement of Cohen’s payment to Daniels as compensation for legal services. The counts include 11 invoices from Cohen, 11 corresponding checks, and 12 ledger entries.
Ordinarily, falsifying business records is a misdemeanor. But it becomes a felony when the defendant’s “intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.” Bragg says Trump had such an intent, which is why the 34 counts are charged as felonies.
Bragg had long been cagey about exactly what crime Trump allegedly tried to conceal. But during a sidebar discussion last week, Colangelo said “the primary crime that we have alleged is New York State Election Law Section 17-152.” That provision says “any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor.”
In other words, Bragg is relying on this misdemeanor to transform another misdemeanor (falsifying business records) into a felony. But the only “unlawful means” that he has identified is Cohen’s payment to Daniels. And while Cohen pleaded guilty in 2018 to making an excessive campaign contribution by fronting the hush money, Trump was never prosecuted for soliciting that contribution.
There are good reasons for that. The question of whether this arrangement violated federal election law hinges on whether the hush money is properly viewed as a campaign expense or a personal expense. That distinction, in turn, depends on whether Trump was motivated by a desire to promote his election or by a desire to avoid embarrassment and spare his wife’s feelings.
The former hypothesis is plausible, especially given the timing of the payment to Daniels. But proving that allegation beyond a reasonable doubt would have been hard”
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“Convicting Trump of soliciting an illegal campaign contribution would have required proving that he “knowingly and willfully” violated the Federal Election Campaign Act. Federal prosecutors evidently concluded that they could not meet that requirement. But to violate Section 17-152 of the New York Election Law, the provision on which Bragg is relying for “another crime,” Trump would have had to “conspire” with Cohen to influence an election through “unlawful means,” which suggests he knew the payment to Daniels was illegal.”
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“The fact that Bragg is relying on an obscure offense that apparently has never been prosecuted speaks volumes about his eagerness to convert the Daniels hush payment into 34 felonies. That strategy will prove “twisty,” Connor said, because “you’re having an underlying crime within an underlying crime to get to that felony.”
If Trump did not recognize the hush payment as “unlawful,” it is hard to see how his “intent” in falsifying business records could have included an intent to conceal “another crime.” And that’s assuming a purported violation of federal campaign finance restrictions counts as “unlawful means” under Section 17-152.”
https://reason.com/2024/05/03/the-new-york-case-against-trump-relies-on-a-twisty-legal-theory-that-reeks-of-desperation/