Good morning! It’s Wednesday, April 5, 2023. The 2024 elections are 580 days away.
After a dramatic day in New York, the indictment against Donald Trump has been unsealed. Still confused about what it says? Lost in all the talk about hush money, false records, and misdemeanors vs. felonies?
Allow me to explain. In this morning’s newsletter, I’m going to break down each element of the Trump case — what we know, what we don’t know, and what happens next — to give you a clear-as-possible explanation of what’s afoot.
Breaking down the 34-charge Trump indictment
Former President Donald Trump pleaded “not guilty” on Tuesday to 34 felony charges of falsifying business records in order to influence the 2016 presidential election. He is the first former president in American history to face criminal charges.
During his arraignment, prosecutors alleged that Trump coordinated with his then-lawyer Michael Cohen and former National Enquirer publisher David Pecker as part of an “illegal conspiracy” to silence allegations of extramarital affairs by paying three hush money payments before the election. Let’s walk through this step-by-step:
Who received the three payments?
Attempting to prove a broader election-influence scheme, the prosecutors’ “statement of facts” touches on hush money payments paid to three individuals during the 2016 campaign:
- Porn star Stormy Daniels, who was paid $130,000 by Cohen to silence her claim that she had an affair with Trump.
- Playboy model Karen McDougal, who was paid $150,000 by American Media, Inc. (AMI), the Pecker-led parent company of National Enquirer, to silence her claim that she had an affair with Trump.
- A former Trump Tower doorman, who was paid $30,000 by AMI to silence his claim that Trump had a child out of wedlock.
What are the falsified business records?
The indictment itself, though, only alleges that business records were falsified in one of those incidents, as part of the Daniels payment.
According to the indictment, Cohen paid Daniels on or about October 27, 2016 — less than two weeks before the election — by wiring $130,000 from a shell company he created the day before, using money from his personal home equity line of credit.
Cohen had allegedly “confirmed” with Trump beforehand that Trump “would pay him back.” Trump did so through 11 monthly payments over the course of 2017, two of which were paid through Trump’s blind trust and nine of which were paid by personal checks Trump signed himself.
Here’s the alleged falsification: Each payment was logged in the Trump Organization’s internal accounting system as a “legal expense,” even though — prosecutors argue — they were reimbursement for the Daniels payment, not for any legal services rendered.
The two checks from the blind trust also state that they are for a 2017 “retainer” to Cohen, the language Cohen was instructed to use when invoicing the company for the reimbursement. “In fact, there was no such retainer agreement and [Cohen] was not being paid for services rendered in any month of 2017,” the prosecutors said.
Why are there 34 counts?
For each of the 11 payments, prosecutors charge that Trump “made and caused a false entry in the business records of an enterprise” three times:
- First, for each invoice from Cohen falsely describing the reimbursement as being for a “legal expense.”
- Second, for each time the reimbursement was recorded in the Trump Organization accounting system as a “legal expense.”
- Third, for each of the checks themselves.
That makes 33 counts. The 34th is because the first reimbursement covered two of Cohen’s invoices, so there were two charges related to invoices in connection to that payment.
Why is it a felony?
Falsifying business records is typically only a misdemeanor in New York, punishable by up to one year in prison per charge.
But according to New York Penal Law §175.10, which Trump was charged under, a falsification charge can be elevated to a felony if the defendant’s “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” — the felony charge — is a “class E felony,” the lowest level of felony in New York. The maximum punishment, though, is raised to up to four years in prison per charge.
What is the second crime in this case?
We don’t know! As you can see from the statute, in order to secure a felony conviction, prosecutors will have to prove that Trump falsified the business records in order to commit or conceal a second crime.
But the indictment never explains what that second crime was, only that there was a second crime. Although the indictment is not technically required to outline the second crime, its omission leaves a major gap in our understanding of what laws Trump has actually been accused of breaking. Trump’s attorneys are likely to emphasize this point in their pre-trial motions.
In a press conference after the arraignment, Manhattan District Attorney Alvin Bragg suggested the second crime was a violation of federal election law or New York state election law, although he did not point to a specific statute. In either event, he will be relying on a shaky legal theory: it is not typical for a state prosecutor to indict someone based on a violation of a federal law, or for a presidential candidate to be indicted under state election law.
Bragg also suggested that the alleged falsification may have been connected to a tax violation as well. According to the “statement of facts,” the amount Trump reimbursed Cohen was increased “so that [Cohen] could characterize the payment as income on his tax returns, instead of a reimbursement.” (This meant Cohen had to pay more in taxes than he otherwise would have.)
How would the payments violate election law?
Again, Bragg’s prosecutors did not lay out their exact theory of the case here in either the indictment or the “statement of facts.” But Cohen has already pleaded guilty (in a case brought by federal prosecutors) to exceeding the federal campaign contribution limit by making the $130,000 payment.
In his guilty plea, Cohen acknowledged that the payment was made at Trump’s direction “for the principal purpose of influencing the election” — therefore allowing prosecutors in his case to deem it an in-kind, unreported donation to the Trump campaign.
Trump’s attorneys are likely to push back on that idea, arguing that the payments (and the reimbursement) were personal in nature, not related to the 2016 election.
This is where the other two hush payments will likely come in, as prosecutors will argue that the Daniels payment was part of a broader scheme to have all three individuals paid off before the election specifically to avoid electoral consequences. The “statement of facts” alleges that Trump told Cohen that it only mattered to him if Daniels’ story became public before the election, which prosecutors will use to argue that the hush payment was primarily a political act.
What are the legal questions in the case?
Far from being cut-and-dried, the historic case against Trump relies on several assertions that are very much up in the air. Here are some of the key issues the defense and prosecution will likely spar over in the coming months:
- Were these really business records? Trump’s reimbursement of Cohen came from his own personal funds; his lawyers could argue, then, that the records at hand weren’t really business-related, even if they happened to pass through the business. But, prosecutors will respond, the checks were processed by the Trump Organization and approved by the company’s CFO Allen Weisselberg.
- Were the hush money payments political? The defense side will likely argue that the hush money payments were more about protecting Trump from the personal embarrassment of Daniels’ story becoming public, not about the political ramifications (despite Cohen’s testimony to the contrary). This is reminiscent of the question that came up in a similar case against John Edwards, who was charged with federal campaign finance violations stemming from hush money paid to a mistress. Of the six charges against him, Edwards was acquitted of one and a mistrial was declared for the others.
- Is Cohen’s testimony credible? Cohen is expected to be the star witness in the prosecution’s case. But Trump’s lawyers will likely point out that he previously pleaded guilty to lying to investigators in a separate case, dampening his credibility.
- Can prosecutors prove Trump’s intent? The statute at hand says prosecutors must prove that the defendant had an “intent to defraud,” meaning they must show who Trump was trying to defraud and that he meant to do it. The defense attorneys are likely to argue that Trump was merely acting off of bad legal advice from Cohen and others.
Prosecutors are expected to rely on testimony from Cohen and Pecker to make their case, as well as Trump Organizations documents and a recording of one Trump-Cohen call. (Notably, the “statement of facts” says Trump discussed the Daniels payment with Cohen in an Oval Office meeting in February 2017, a conversation Cohen will likely be asked to recount.)
While that may be enough to prove that the records were falsified to hide their true purpose, going the next mile and proving the felony — that the falsification was done to conceal another crime — may be more difficult. Trump’s lawyers are likely to file a pre-trial motion urging Judge Juan Merchan to dismiss the case or downgrade the charges to misdemeanors; it would be hugely embarrassing for prosecutors if either effort is successful.
How did Trump respond?
During the hour-long arraignment, he remained mostly quiet, speaking up only to acknowledge his rights when asked by Merchan and to enter his “not guilty” plea.
Later Tuesday night, though, Trump lambasted the prosecution in a speech at Mar-a-Lago. “We are a nation in decline, and now these radical left lunatics want to interfere in elections by using law enforcement,” Trump declared. “We can’t let that happen.” (Bragg, the prosecutor who charged Trump, is a Democrat.)
Trump also railed against the other ongoing criminal investigations he faces, led by Justice Department special counsel Jack Smith (whom he also branded a “lunatic”) and Georgia prosecutor Fani Willis. “They can’t beat us at the ballot box, so they try to beat us through the law,” Trump said.
During the arraignment, Merchan did not issue a “gag order,” but warned Trump to “refrain from making statements that are likely to incite violence or civil unrest.” Yet, at Mar-a-Lago hours later, the former president attacked Merchan in personal terms, calling him “a Trump-hating judge with a Trump-hating wife and family.” (Merchan’s daughter runs a political consulting firm that worked for the Biden campaign in 2020.)
How have others responded?
Republican leaders mostly rallied around Trump, accusing Bragg of acting politically, while top Democrats issued more muted responses, underlining the presumption of innocence and calling for a fair trial.
Notably, several Republican critics of Trump joined his GOP allies in noting weaknesses in the charges. (One GOP critic, Senate Minority Leader Mitch McConnell, has yet to respond at all.) Here’s a sampling of responses from across the political spectrum:
House Speaker Kevin McCarthy (R-CA):
Senate Majority Leader Chuck Schumer (D-NY):
House Judiciary Committee chairman Jim Jordan (R-OH):
Rep. Ted Lieu (D-CA):
Sen. Mitt Romney (R-UT), who voted to convict Trump in both his impeachment trials:
Former Rep. Peter Meijer (R-MI), who also voted to impeach Trump:
What happens next?
Don’t expect much action in the Trump case soon. Merchan gave Trump’s lawyers a deadline of August 8 to file any pre-trial motions; prosecutors will then have until September 19 to respond.
The next hearing in the case, when Merchan will rule on those motions, is not scheduled to take place until December 4.
Under that timeline, a trial would then begin in January, although further delays are likely.
WISCONSIN: “A Democratic-backed Milwaukee judge won the high stakes Wisconsin Supreme Court race Tuesday, ensuring liberals will take over majority control of the court for the first time in 15 years with the fate of the state’s abortion ban on the line.” (AP)
CHICAGO: “Brandon Johnson, a union organizer and former teacher, was elected Chicago mayor on Tuesday, a major victory for the party's progressive wing as the nation’s third-largest city grapples with high crime and financial challenges.” (CBS)
TENNESSEE: “Tennessee House Republicans on Monday took steps toward expelling three Democratic state representatives after they participated in protests at the state Capitol last Thursday calling for more gun control in the wake of the deadly mass shooting at Nashville’s Covenant School.” (CNN)
NORTH CAROLINA: “A Democratic lawmaker in North Carolina is reportedly expected to change her political party and become a Republican, giving the GOP a veto-proof majority in the state legislature.” (Fox)
MARYLAND: “The former chief of staff to ex-Maryland Gov. Larry Hogan died after he was captured Monday in Tennessee, nearly three weeks after he failed to appear in federal court last month on fraud and other charges, authorities and his lawyer said.” (NBC)
President Biden and Vice President Harris will have lunch with each other.
First Lady Biden will travel to Portland, Maine, and Burlington, Vermont, as part of the administration’s “Investing in America” tour.
In Portland, she will visit Southern Maine Community College to highlight investments in community colleges and workforce training programs. In Burlington, she will visit an electric aerospace company to highlight investments in clean energy.
The House and Senate are on recess.
House Speaker Kevin McCarthy will meet with Taiwanese president Tsai Ing-wen at the Reagan Library in California. A bipartisan group of lawmakers will join the meeting — which has sparked threats of retaliation from China — including House Democratic Caucus Chair Pete Aguilar.
The Supreme Court has nothing on its schedule.
Before I go...
Here’s a fun story: It was a zoo outside the Manhattan courthouse where Donald Trump was arraigned on Tuesday. There were protesters, cameos by Marjorie Taylor Greene and George Santos, and more reporters than you could count.
And... college sweethearts Khalia Beckford and Peter Don, who were coincidentally getting married in the same building.
“I did not plan for this,” Beckford told BuzzFeed News in an interview. “I heard about it at work but didn’t know this was happening. But it’s dope. It’s a moment, and it’s not going to ruin my big day. The cameras [are] for me. Everyone came for me.”
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