“Manhattan prosecutors allege that Trump concealed hush money payments by falsely labeling related transactions as legal expenses and by arranging for a tabloid publisher to bottle up the story of a woman who said she had a sexual relationship with Trump.
In doing so, the prosecutors say, Trump repeatedly violated a New York corporate record-keeping law and agreed to break campaign finance laws.”
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“The charge at the heart of the case — falsifying business records — can amount to only a misdemeanor, but it becomes a felony if the defendant falsified the records to obscure a separate crime.
The most obvious candidate for that aggravating element is the admission from Trump’s former lawyer, Michael Cohen, that he arranged a $130,000 payment to porn star Stormy Daniels in consultation with Trump and to aid Trump’s 2016 presidential campaign.
“The defendant Donald J. Trump repeatedly and fraudulently falsified New York business records to conceal criminal conduct that hid damaging information from the voting public during the 2016 presidential election,” the statement of facts says.
“The participants [in the scheme] violated election laws,” the statement continues, though it does not explicitly cite which ones. The statement also mentions Cohen’s guilty plea in 2018 to two federal campaign finance crimes. And in a press release, Bragg said Trump and others sought to conceal “attempts to violate state and federal election laws.”
The references to federal election violations are virtually certain to be the focus of pre-trial motions from Trump’s attorneys, who have contended publicly that this state-law offense cannot be piggybacked on a federal-law crime.
If defense attorneys prevail on such motions, it would not necessarily wipe out the criminal case against Trump. Instead, the case could remain as 34 misdemeanor charges. That would amount to a legal, public relations and political victory for Trump.
Such a result would further diminish the chances of Trump being jailed if found guilty. The maximum sentence on a second-degree falsifying business records charge is up to one year in prison on each count. A downgrading of the case to a misdemeanor might also aid Trump’s efforts to delay a trial.”
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“For Trump to be convicted of falsifying business records, the records at issue have to be, well, business records.
The New York law at issue requires that the falsification involve the records of “an enterprise,” and each count of the indictment claims that Trump falsified records “kept and maintained by the Trump Organization.”
The facts are more complicated. It’s true that the checks sent to Cohen, which labeled the payments as legal expenses, were issued by employees working for Trump’s business empire. But they were not charged to Trump’s businesses. Instead, the payments were made from one of Trump’s personal accounts or from a Trump family trust.
The key question, and one that is sure to feature in efforts by Trump’s lawyers to derail the case, is whether documents that happened to pass through the Trump Organization or handled by Trump Organization personnel are automatically classified as business records, even if the source of the funds was Trump’s personal accounts.”
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“Legal experts said they expect Trump’s lawyers to argue to the judge and, if necessary, a jury that wholly personal expenses that are simply handled by an accountant or other clerical personnel don’t become the “records of an enterprise” just by virtue of that process.”
https://www.politico.com/news/2023/04/04/trump-indictment-takeaways-analysis-00089988