It’s easy to understand the public angst about Manhattan District Attorney Alvin Bragg’s indictment of Donald Trump.
To many, including some who are not Trump supporters, the case looks “thin” or “weak,” especially when compared to the weightier claims brewing within the Department of Justice investigations, now headed by Special Counsel Jack Smith, of the Mar-a-Lago documents and Trump’s attempts to overturn the results of the presidential election, and the Georgia investigation of Trump’s attempted interference with the election in that state.
Nearly all of the skepticism over the Manhattan indictment issued last week boils down to one of two core complaints: either (1) the case shouldn’t have been brought at all, or (2) it shouldn’t have been brought first.
The second of those concerns can be quickly dispatched. The proposition that the Manhattan indictment shouldn’t have been brought first, before cases are brought either in Georgia or by Special Counsel Smith, is a complete non-starter. The idea that three separate jurisdictions should collaborate so as to sequence their indictments for maximal public-relations or political impact is repugnant. If that had happened, the critics would truly have something to complain about.
That leaves the “not at all” lobby.
But what are they really saying?
To argue that Bragg should not have indicted Trump at all requires one to believe that even if Bragg can prove everything alleged in the indictment and the accompanying statement of facts filed in New York last week, he still shouldn’t have brought the case.
That’s a heavy lift. Too heavy.
Bragg has laid out an outrageous tale of a brazen, wide-ranging criminal scheme, not just some bookkeeping peccadilloes.
Here’s the core of the case against Trump:
In August 2015, less than two months after he announced his candidacy, Trump held a meeting at his Trump Tower office in New York City with his then-lawyer Michael Cohen and David Pecker, the CEO of American Media, Inc. (AMI), owner and publisher of the supermarket tabloid the National Enquirer.
At the meeting, Pecker agreed “to help with [Trump’s] campaign.”
Pecker’s role was to be on the lookout for negative stories about Trump and to alert Cohen and Trump to any such stories before they were published. Pecker has admitted in a non-prosecution agreement that, in furtherance of his agreement with Trump, he had AMI acquire exclusive rights to salacious stories about Trump in order to make sure they were not published “before the 2016 presidential election and thereby influence that election.”
This was the so-called “catch-and-kill” scheme.
Pecker and Cohen worked together to catch and kill three stories that could harm Trump’s bid for the presidency.
First, AMI made a payment of $30,000—to be reimbursed by Trump—to silence a Trump Tower doorman who claimed to have information about a child Trump allegedly fathered out of wedlock.
Next, around three months prior to the election, AMI made another payment of $150,000 to suppress a story from a Playboy model, Karen McDougal, in exchange for her agreement not to speak out about an alleged sexual relationship with Trump. In a conversation captured in an audio recording, Cohen and Trump discussed how to reimburse AMI for the hush money payment to McDougal. (So much for the “I had nothing to do with any of this, it was all just Michael Cohen and David Pecker acting on their own” defense.)
But it is the third catch-and-kill story—the one involving a payment of $130,000 to an adult film actress whose stage name is Stormy Daniels—that has captured most of the national press attention.
Pecker first learned about Stormy Daniels about a month before the presidential election, just days after news broke that Trump had been caught on tape making crude, demeaning, sexist remarks about women on the now-infamous Access Hollywood “grab ’em by the pussy” tape. The public revelation of this recording understandably threw the Trump campaign into a panic of concern that the tape would, as the statement of facts puts it, “harm his viability as a candidate and reduce his standing with female voters in particular.”
The timing of Daniels’s claim that she had a sexual encounter with Trump while he was married to his current wife Melania added fuel to the public-relations fire that was still raging just days after the revelation of the Access Hollywood tape. Alerted by Pecker, Cohen sprang into action, promptly negotiating an agreement to pay Daniels $130,000 to kill her story.
This is where the criminal scheme began.
Trump instructed his two fixers, Cohen and Allen Weisselberg, the chief financial officer of the Trump Organization, to find a way to make the Daniels hush money payment look like something else, and to mask the fact that the payment came from Trump himself.
What Trump and his fixers ultimately came up with was a Rube Goldberg-like scheme that started with the Trump Organization, not Trump himself, reimbursing Cohen for the hush money payment to Daniels. This was accomplished by falsifying the company’s business records. Trump recorded the reimbursements for the hush money payment as payments for fictional legal services provided by Cohen pursuant to a nonexistent retainer agreement.
At the end of the day, Trump had gotten Cohen to make a six-figure hush money payment using his own money, hidden his personal involvement behind both Cohen and the Trump Organization (which had absolutely nothing to do with his alleged affair with Stormy Daniels), and gotten his company to fork over reimbursements for the payment to Cohen.
Problem solved, right?
Well, not quite. Sir Walter Scott’s admonition—“O what a tangled web we weave, when first we practice to deceive!”—was never more apt. Because just as the illegal campaign contribution scheme begat the falsification of business records, the falsification of business records begat, in turn . . . tax fraud!
Since Trump had falsely recorded his reimbursement of Cohen as a Trump Organization payment for legal services, Cohen now had a problem: He would have to declare the phony “income” in his tax returns and pay tax on it.
Filing a deliberately phony tax return, even one that might be construed as favorable to the government, is a crime under both federal and New York State law.
But it gets worse: Because Cohen falsely reported the hush money reimbursement as income for legal services, he had to pay state and federal income tax on it. Accordingly, if Trump paid Cohen only the $130,000 he had advanced to Daniels, Cohen wouldn’t be made whole after paying taxes on the fictional “income.”
Trump solved that problem by “grossing up” (meaning, in this case, doubling) the $130,000 repayment so that Cohen would be made whole after he paid taxes on the phony income. He then tossed in tens of thousands of dollars extra so his fixer would take home a nice bonus for his important pre-election work.
So, now Trump had not only hidden his personal involvement, transferred his personal obligation to his company, falsified his business records, and conspired with Cohen to commit tax fraud, but he had also stuck his company with paying Cohen more than twice the amount Cohen had advanced to Daniels.
And the tax fraud probably doesn’t end there. Having falsely recorded the hush money as a payment for legal services, what are the odds that the Trump Organization didn’t take a tax deduction for the payment as a business expense? While the statement of facts is silent on this question, it would be hard to believe that Trump passed up this golden opportunity to cheat the government out of a few thousand dollars.
This, then, is the case that the “not at all” lobby believes the Manhattan district attorney should not have brought.
Not because the case is hard to prove. It isn’t. Bragg has direct witness testimony not just from Michael Cohen, but also David Pecker and others connected to the Trump Organization—even Allen Weisselberg, potentially, if the former Trump CFO flips in exchange for avoiding additional prison time. (Weisselberg recently parted ways with his Trump Organization–affiliated lawyers.) He has recorded conversations with Trump. He has canceled checks. He has tax returns. He has the receipts.
Not because the only specific, formal charges in the indictment are for the wimpy-sounding crime of “falsifying business records in the first degree.” The phrase “falsification of records” might sound wimpy semantically, but it’s the ticket to court, and at the trial the jury will be regaled with a gaudy Trump circus of lying, cheating, and blatant fraud. And anyway, when you catch someone red-handed in a crime, you indict the crime you can. Just ask Al Capone.
Not because there’s no “second crime” to lift a business records misdemeanor to felony status. The ordinary crime of falsifying business records is a misdemeanor under New York law, but if it is done with an intent to either conceal or assist in the commission of another crime, it is stepped up to the felony offense of falsifying business records “in the first degree.”
The argument that a New York state prosecution can’t use a violation of federal campaign law to enhance a misdemeanor to a felony doesn’t make much sense. The applicable statute just talks about concealing or assisting in the commission of a “crime.” No court has ever ruled that the broad word “crime” should be construed narrowly to mean only “a violation of New York State law,” and there’s no reason it should. Bragg is not trying to charge Trump with violation of federal election laws, just to show that Trump’s falsification of business records was intended to cover one up. And even in the unlikely event that a court might rule that a federal crime can’t be used to elevate a misdemeanor to a felony, the phony tax returns are violations of state law and should on their own be sufficient to earn Trump a criminal conviction, if the prosecutor makes his case effectively.
Not because Trump supposedly made the catch-and-kill hush money payments merely to avoid embarrassment and trouble at home, a line of defense floated last week by one of Trump’s attorneys, Joseph Tacopina. Tacopina argues that there was no violation of campaign finance laws because Trump would have made the payments regardless of the campaign in order to keep the information from getting to his wife and family.
But if Bragg can prove even a fraction of what he alleges in the statement of facts, the “it had nothing to do with the campaign” defense won’t get off the ground. The statement alleges, for instance, that the August 2015 meeting was specifically about helping Trump’s campaign; that Pecker agreed to not just catch and kill bad stories about Trump but also to publish hit pieces about his rivals for the nomination; that Trump instructed Pecker not to release anybody from the agreements until after the election; that Trump tried to delay the payment to Daniels until after the election in the hope that he might not have to pay her at all; and that AMI promptly released both the doorman and Karen McDougal from their agreements to remain silent shortly after the election. Taken together, this screams that the hush money payments were specifically designed to help Trump’s campaign.
It is probably true that if you or I had been caught committing Trump’s crimes, things would have played out differently. But the case wouldn’t have just gone away. Instead, we would probably have entered a plea agreement, perhaps pleading guilty to some but not all of the counts, perhaps admitting only the misdemeanor offenses but not the felonies, and likely accepting a fine and a reduced or suspended sentence.
There’s no plea deal here. But that’s on Trump, not Bragg. Trump never admits guilt for anything.
All of this pretty much leaves only the argument that the crimes with which Bragg charged Trump are simply not serious enough to justify indicting a former president and current presidential candidate in a highly charged political environment.
Anyone who believes that should be honest about it: Just come out and say that certain powerful people are indeed above the law, that the decision on whether or not to indict Trump should have been made based on politics rather than law, and that prosecutorial discretion in this case compels turning a blind eye to Trump’s elaborate scheme to cover up blatant violations of election laws by falsifying business records and committing tax fraud.
Count me out.
That’s not to say that there’s no cost to Bragg’s decision. Yes, it will give Trump a boost with his core supporters, at least in the short term. Yes, it is divisive because Trump has a large political following that believes he can do no wrong. But holding government officials accountable for their crimes is divisive by definition if they have considerable public support. That’s no reason to give a politician, even a presidential candidate, a pass for criminal misconduct. Doing so would have its own steep price.
There’s always a cost for doing the right thing. We don’t have to pretend that there’s no downside to Bragg’s indictment of Trump in order to conclude that he did the right thing.