One of the biggest stories in national news lately is the possibility of Donald Trump’s indictment and arrest.
His alleged crime?
Falsifying a business record.
From six years ago.
After reading that, Southern ladies everywhere clutched their pearls and fainted. Little children will cry themselves to sleep for years. And leftists will need years of therapy! (Ok, that last one might be true.)
If that sounds overly dramatic, it is.
I’ll break down what’s going on and give my take, but the bottom line is that this isn’t a serious prosecution. It’s a clown show. This is about politics and not fighting crime, and it shows how incredibly petty the left is willing to get.
This story all began with the testimony of a witness whose virtue cannot even be questioned—a porn star! Stormy Daniels claimed that she and Trump had an affair in 2006. Trump denied the allegations.
In 2016, Daniels told the “National Enquirer” that she was willing to come forward with her story. Michael Cohen, Trump’s attorney, pays her $130,000 in exchange for a nondisclosure agreement. (Perhaps the better way to attack the story’s credibility would have been to let the “Enquirer” publish it. It’s got even less credibility than CNN. But I digress.)
In January of 2017, Cohen allegedly requested reimbursement from the Trump Organization, and his request was allegedly granted.
Before going any further, while “hush money” is often frowned upon, it’s perfectly legal. It’s a form of settlement. In truth, about 97-98% of civil cases are settled out of court. For a billionaire like Trump, $130,000 could be a tip at a restaurant. Even if he paid it, that doesn’t necessarily mean he did it. As a practical matter, it could have been the easiest way to make it go away.
But that’s not the problem. According to the Manhattan prosecutor investigating Trump — who incidentally is funded by George Soros — the problem is how the Trump Organization recorded the reimbursement to Cohen. It was recorded as part of an existing retainer agreement between Cohen and Trump, the prosecutor says, who further claims such a retainer agreement never existed.
I’m not licensed to practice law in New York, so there could be nuances of New York law that I don’t know about which make a difference here. But if this were tried just about anywhere else in the United States, it would go as follows.
In most jurisdictions, creating a false business record with the intent to defraud is a misdemeanor called falsifying business records. So if everything happened as the prosecutor claims, then Trump, at first glance, would be guilty.
However, Trump denies the allegations. And on Wednesday, a letter surfaced from Cohen’s attorney that calls into question whether Cohen lied about the payment to Daniels. Thus, Trump may actually be innocent.
But even if he engaged in the conduct at issue, there are two other problems.
First, this is a misdemeanor. Crimes are broken into misdemeanors and felonies. Misdemeanors typically include things like shoplifting, vandalism, and trespassing. Felonies include murder, rape, robbery, and drug trafficking. While misdemeanors are still crimes, they’re small potatoes compared to felonies.
Why would the district attorney from Manhattan devote so many resources to hunting down a low-level crime — that may not have occurred — from six years ago?
The answer is simple (and petty): politics.
If the prosecutor was dealing with an average person off the streets of Manhattan (or a Democrat), he wouldn’t bother. But because it’s Trump, they’re treating it differently.
There’s a second major problem that I legitimately don’t understand: the statute of limitations. With the exception of high-level felonies like murder and rape, most crimes have to be prosecuted within a certain amount of time. The idea is that you can’t hang criminal charges over someone’s head forever. You’ve either got to get on with the prosecution or let the defendant get on with their lives.
From what I understand, the statute of limitations for this misdemeanor is one year.
So how in the world is the Manhattan district attorney still able to seek an indictment in 2023?
In many jurisdictions, prosecutors are subject to special ethical rules. If there wasn’t a lawful way around the statute of limitations, I think this prosecutor could be facing ethical charges and possible disbarment.
Fortunately, Trump was not arrested on Tuesday as he thought. And as the story develops, it’s looking more likely that they’ll drop the charges. I certainly hope so. This is a clown show that makes a mockery of our justice system. Political prosecutions should have no place in the United States.
Matt Clark is the President of the Alabama Center for Law and Liberty, a conservative nonprofit law firm that fights for limited government, free markets, and strong families in the courts. His column appears every Friday in 1819 News. The opinions expressed in this column are those of the author. The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to Commentary@1819News.com.
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