You’ve heard the news by now. Last week, a New York jury found President Trump guilty of 34 felony counts of falsification of business records in the first degree. What does this mean?
Under New York law, to prove its charges against Trump of falsification of business records in the first degree, the prosecution must show two things.
First, the prosecution had to show that Trump’s records were altered with an intent to defraud. By itself, this is a misdemeanor. Second, to increase the crime to a felony, the prosecution had to show that the records were falsified in order to conceal another crime.
The 34 business records at issue relate to a series of payments over a period of 12 months that Trump made to his attorney, Michael Cohen, as compensation and reimbursement for Cohen’s legal work negotiating an agreement with Stormy Daniels to relinquish her rights to a story regarding her allegations of an affair with Trump and sign a non-disclosure agreement (“NDA”) in exchange for $130,000. Cohen paid this amount on behalf of his client and these payments were noted in Trump’s business records as “legal expenses.” This is the so-called “hush money” you have seen referenced over and over in the headlines.
However, this raises a legitimate legal question. New York’s case against Trump rests on the assumption that classifying these 34 records as “legal expenses” is a falsification with an intent to defraud. New York argued that this was a falsification because they were really “hush-money campaign expenses” rather than legal expenses.
As such, in a very fundamental way, this is a campaign finance law case. Just what is a campaign expense vis a vis a legal expense? The Biden administration Justice Department’s prosecution of Cohen and his ultimate conviction for campaign finance violations relating to the $130,000 payment provide more questions than answers.
Cohen was convicted on the basis that the $130,000 payment to Daniels was actually an unlawful contribution to Trump’s 2016 campaign, far exceeding his individual limit of $2,700. But if it was a campaign contribution, how can Trump’s reimbursement and compensation payments to Cohen be considered “campaign expenses”?
I don’t know about you, but I’ve never heard of any politician reimbursing campaign contributions, win or lose. That just sounds foreign to the politician’s nature, doesn’t it?
Aside from this discrepancy, there are many other suspicious elements to the link between the DOJ’s case against Cohen and Manhattan District Attorney Alvin Bragg’s prosecution of Trump. One of Bragg’s lead prosecutors at trial was Matthew Colangelo, who left his post as acting associate attorney general for the Biden administration to help Bragg prosecute Trump. Prior to Colangelo joining the prosecution, Bragg had allegedly suspended the investigation into Trump.
Professor Margot Cleveland, Senior Legal Correspondent for The Federalist, details these and several other concerning connections between the Biden Administration and the various cases against Trump in her article “Joe Biden’s Fingerprints Are All Over the Criminal Prosecutions of Donald Trump.” It’s an excellent piece if you want further context on these.
But back to the specifics of the present case. In order to make the 34 counts felonies, the prosecution had to prove that the business records were falsified in order to conceal another crime. What was this other crime?
We don’t know!
In fact, no one knows because the indictment did not say. Before trial, the prosecution didn’t commit itself to any single crime, but rather three: a New York state tax violation, a federal campaign finance violation and a New York state election law violation (itself a two-step inquiry that requires intent to influence an election through unlawful means).
At trial, the prosecution settled on the New York election law violation, but never said specifically what other statute they alleged Trump violated. Because of this, we don’t know what the jury actually believed to reach its guilty verdict.
“Although you must conclude unanimously that the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you need not be unanimous as to what those unlawful means were,” Judge Juan Merchan instructed.
Yeasayers for the guilty verdict in the legal profession are frantically downplaying the lack of unanimity for this element of the crime on the basis of New York law not requiring it, but in doing so they draw attention away from the fact that the indictment charging falsification of business records never identified the underlying offense required to prove that charge.
This raises a serious question under the Sixth Amendment’s guarantee of notice to the accused, something worthy of the Supreme Court’s review before Trump’s sentencing on July 11. Yale Law School’s Professor Jed Rubenfeld has published an excellent video discussing the finer details of these serious constitutional questions, which I recommend for anyone who wants to learn more.
Contrary to what the headlines may lead you to believe, Trump is not yet a felon until Merchan enters final judgment at sentencing. As Rubenfeld suggests, the constitutional questions, in this case, are so serious – they could literally be the deciding factor in November’s presidential election – that Trump has a legitimate case to seek an emergency temporary restraining order in federal court to put a hold on Merchan’s sentencing until these pivotal issues can be addressed by the Supreme Court.
Either way, we are in totally uncharted waters, and the storm rages all around us. Phil Williams’ message from Ephesians a couple of days ago bears repeating: We must put on the full armor of God and, when all is done, stand.
Talmadge Butts is Lead Staff Attorney for the Foundation for Moral Law (www.morallaw.org). Those with constitutional concerns may call the Foundation at (334) 262-1245 or email talmadge@morallaw.org.
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.
Don’t miss out! Subscribe to our newsletter and get our top stories every weekday morning.
