Unsealed Trump Indictment Previews a Case That Puts Us in Uncharted Territory
By The Daily Signal: We are quite confident that former President Donald Trump’s defense team will file a pretrial motion claiming that the trial judge should dismiss the indictment on the grounds of selective prosecution.
Former President Donald Trump was arraigned Tuesday on a 34-count indictment accusing him of falsifying business records in the first degree.
Trump pleaded not guilty to the felony indictment in a courtroom at Manhattan Criminal Court. The indictment, which had been sealed until the arraignment, is a typical state court charging document, containing little more than the charges against the former president.
The indictment, however, is supplemented by an official statement of facts from the office of Manhattan District Attorney Alvin Bragg, and it contains “certain of the information that is relevant to the events described herein.”
The arraignment, like most arraignments, took only a few minutes, but this case is anything but ordinary and will, for the reasons we explain below, take on a life of its own.
In broad terms, the 34-count indictment alleges that Trump, acting “with intent to defraud and intent to commit another crime and aid and conceal the commission thereof,” caused false entries to be made in the business records of his Trump Organization.
Eleven of the counts mention Michael Cohen, Trump’s former attorney and “fixer” who pleaded guilty in 2018 to federal charges relating to payments made to two women, discussed below, in the run-up to the 2016 presidential election. Cohen’s credibility, or lack thereof, will be central to the defense’s case, including during the pretrial motions stage, which is next.
All of the charges relate to alleged false entries in the business records of the Trump Organization either by an invoice, entry into the general ledger, or a revocable trust account owned by Trump. The 34 charges cover criminal behavior that allegedly took place on 17 dates after Trump took office as president, between Feb. 14 and Dec. 5, 2017—a period of 10 months.
The story behind this indictment begins back in 2006, when two women—pornography actress Stephanie Clifford, who goes by the stage name Stormy Daniels, and Karen McDougal, a former Playboy Playmate of the Year—claimed they had sexual relations with Trump, who denied the claims and was married at the time to his current wife, Melania.
Almost a decade later, Donald Trump decided to run for president. His lawyer, Cohen, learned that Daniels and McDougal had decided to cash in on their stories and go public. Determined to prevent this, Cohen paid $130,000—what some have called “hush money”—to Daniels out of his own funds.
It’s important to note that a nondisclosure agreement, which is what this was, is both legal and common whenever high-profile civil matters are settled.
Cohen also arranged for David Pecker, publisher of the National Enquirer and a Trump confidant, to pay $150,000 to McDougal for the exclusive rights to her story so he could “catch and kill” it, ensuring her account never gets published.
The indictment’s statement of facts suggests that the government has evidence that Trump knew about, and approved of, both of these payments.
Over the next year, Cohen is repaid the money by the Trump Organization and the payments are entered on the company’s books as “legal expenses.”
The statement of facts asserts that “there was no retainer agreement” with Cohen and that the lawyer was “not being paid for legal services in 2017.”
The ‘Other Crime’
In 2018, after the Daniels-McDougal imbroglios came to light, Cohen pleaded guilty to myriad federal offenses, including tax evasion, bank fraud, perjury before Congress, making an excessive campaign contribution (the Daniels payment), and causing an unlawful corporate campaign contribution (the McDougal payment).
As the statement of facts contends, Cohen claims that he spoke to Trump and others involved in the 2016 presidential campaign about these payments beforehand.
Pecker was granted immunity, but the publisher’s National Enquirer paid a $187,500 fine to the Federal Election Commission after the FEC concluded that the $150,000 payment to McDougal was an illegal corporate campaign contribution that had been arranged in coordination with the Trump campaign team, including Cohen.
The indictment itself does not mention the “other crime” that Trump allegedly committed and “aided and concealed the commission thereof.” But the statement of facts makes clear that Bragg is referring to allegations that Trump and others “violated election laws,” without identifying which laws he broke and whether they were federal or state laws—although Trump’s successful run for the presidency was clearly a federal election campaign.
Under New York law, falsifying business records is normally a misdemeanor. The government’s theory of the case, so it seems, is that since the false entries were designed to cover up other crimes (violating election laws), those actions elevate the offense to a first-degree felony.
During a post-arraignment press conference, Bragg struggled to explain the theory behind the first prosecution of a former president of the United States, stating that Trump “was paying Michael Cohen for fictitious legal services to cover up an actual crime committed the prior year.”
Bragg also said that “true and accurate business records are important … all the more important in Manhattan, the financial center of the world.”
With respect to an alleged violation of federal campaign finance rules, the U.S. Justice Department and the Federal Election Commission opened, thoroughly pursued, and then closed investigations against Trump without charging him. It is odd indeed, to say the least, for a local district attorney to shoehorn a federal violation—which was not brought much less perfected in a court of law—into a state crime.
Trump’s Next Moves
There are numerous pretrial motions and defenses that the former president’s lawyers no doubt will assert. Here are a few of them.
Given Trump’s penchant for tweeting his thoughts, we have little doubt in our minds that his attorneys will seek a change of venue. They will argue that Trump cannot get a fair trial in New York City, and that jurors in Gotham won’t be able to keep a fair and open mind as they hear the evidence against him.
The defense may ask the trial judge who arraigned him, the Judge Juan M. Merchan, to recuse himself from the case. It has been reported that Merchan’s daughter runs a company that worked on behalf of the Biden-Harris campaign.
Trump already has proclaimed on his Truth Social platform that Merchan, who oversaw criminal cases against the Trump Organization and its former CFO Allen Weisselberg, “HATES” him, and should not be permitted to preside over his trial.
If the defense doesn’t bring the motion to recuse, the judge, out of an abundance of caution and to avoid even the appearance of impropriety, could recuse himself. Recusal is not an uncommon event.
The defense no doubt will file a motion asking Bragg’s office which election laws Trump supposedly violated. That motion often is called a motion for a “bill of particulars.” The reason Trump’s legal team will do that is so that it can properly prepare a defense. The judge, for due process reasons, likely will grant that motion, and then Bragg and his office will have to identify, in short order, which election laws Trump allegedly violated.
Most charges must be brought by the prosecution within a certain time frame, called the statute of limitations. The defense could argue that the charges should be dismissed as beyond the statute of limitations, which is normally two years for misdemeanors and five years for felonies.
Although it is true that the time to charge Trump for the 2016 payments and the alleged 2017 false business entries long since has expired, Bragg likely will cite executive orders signed by then-New York Gov. Andrew Cuomo stopping (called “tolling” in legal jargon) the statute of limitations during the pandemic. The district attorney also likely will cite a New York law that “tolls” the limitations period for any time when “the defendant was continuously outside this state.”
Bragg will argue that, as president, Trump resided in Washington, D.C., from Jan. 20, 2017, to Jan. 20, 2021, and has lived in Florida since then.
How that plays out is anyone’s guess. But if the judge rules for Trump, the case is over. Don’t hold your breath for that to happen.
A High Hurdle
We are quite confident that the defense will file a pretrial motion claiming that the trial judge should dismiss the indictment on the grounds of selective prosecution. This involves demonstrating that the defendant was singled out for prosecution when other similarly situated individuals would not have been charged.
That is a high hurdle to clear, as courts are notoriously reluctant to dismiss charges on that basis. But here, there is meat to the argument.
If the defendant weren’t named Trump, would this prosecutor have brought these charges, or any charges at all? You know the answer to that.
Furthermore, Trump (a Republican) will point out that when he was seeking his party’s nomination for district attorney, Bragg (a Democrat) boasted about how often he had taken on Trump, claiming that he had “sued Trump more than a hundred times.”
Other pretrial motions or defenses at trial will include the arguments that whatever reimbursements were made were paid by Trump with his personal funds and, as former FEC Commissioner Brad Smith recently noted, “an obligation isn’t a campaign expenditure if it exists ‘irrespective’ of the campaign.”
Finally, the defense may (and likely will) argue that Trump didn’t have any “intent to defraud.” Trump might assert that he thought he really was paying Cohen for legal services at the time those payments and the correlative business entries were made.
Trump also might assert that since wealthy men and public figures often are sued for illegitimate reasons, he settled these matters for their “nuisance value” or to spare himself and his family the embarrassment that would come from such scandalous allegations (a defense that was successfully deployed by former Sen. John Edwards, D-N.C., during his 2011 criminal trial). He also might assert that he would have made these payments regardless of whether he was running for public office.
No matter how this case proceeds, the fact that a prosecutor has charged a former president of the United States is an extraordinary moment in history. We now have entered uncharted territory.
John G. Malcolm is the vice president of the Institute for Constitutional Government and director of the Edwin Meese III Center for Legal and Judicial Studies, overseeing The Heritage Foundation’s work to increase understanding of the Constitution and the rule of law.
Charles “Cully” Stimson is a leading expert in national security, homeland security, crime control, immigration, and drug policy at The Heritage Foundation’s Center for Legal and Judicial Studies. Read his research.