Rethinking the New York election fraud case, again

I do not understand the New York state lawsuit against Trump for election fraud in connection with the hush money payment to Stormy Daniels, or whatever the crime(s) is called. This is the clearest explanation I have seen so far. 

Writing for Lawfare, Quinta Jurecic laid out the legal reasoning behind prosecutor Alvin Bragg’s lawsuit based on opening arguments and other information made publicly available so far. This summarizes most of her analysis:

Charting the Legal Theory Behind People v. Trump

The mechanics of the case as District Attorney Alvin Bragg is prosecuting it

Bragg had charged Trump under New York Penal Law § 175.10, falsifying business records in the first degree. The falsification of business records alone is a misdemeanor under § 175.05—but Bragg had boosted the charge to a felony by alleging that Trump fudged the records with the “intent to commit another crime and aid and conceal the commission thereof.” But what other crime? The indictment didn’t say.

Perhaps the charges against Trump are difficult to follow in part because the underlying facts are so byzantine. The 34 counts against Trump—all under § 175.10—each correspond to a business record allegedly falsified in service of covering up Trump’s link to the hush money payment provided to Stormy Daniels, an adult film actor and director, in October 2016. That month—at Trump’s instruction, Bragg argues—Trump’s fixer Michael Cohen paid Daniels $130,000 to remain silent about a past sexual encounter with Trump. The Trump Organization then paid Cohen back in increments from February through December 2017, with Cohen submitting invoices fraudulently labeled as charges for legal services under a retainer. The “business records” at issue in the indictment comprise Cohen’s invoices, the checks cut to repay him, and the internal records kept by the Trump Organization of these transactions—all of which were mislabeled, Bragg argues, to conceal the nature of the repayments.

So those are the business records. What about the “object crime”—that is, the crime that Trump allegedly intended to commit or conceal in such a way as to transform the underlying misdemeanor offense into a felony?

If you’re looking for the clearest statement of Bragg’s legal theory, you can find it in a November 2023 court filing opposing Trump’s motion to dismiss the case, along with Merchan’s ruling on that motion. Notably, in that ruling, Merchan clarified that § 175.10 “does not require that the ‘other crime’ actually be committed”—“all that is required is that defendant … acted with a conscious aim and objective to commit another crime.”

 

Tax Fraud (looks like the weakest charge to me)

The potential tax fraud arises from the particular method by which the Trump Organization reimbursed Cohen for his payments to Daniels. Bragg alleges that “defendant reimbursed Cohen twice the amount he was owed for the payoff so Cohen could characterize the payments as income on his tax returns and still be left whole after paying approximately 50% in income taxes.” Here, Bragg points to federal, state, and local prohibitions on providing knowingly incorrect tax information.

The twist here is that because Cohen reported his income as greater than it actually was, he paid more in taxes, rather than less—which is probably not what most people have in mind when they think of tax fraud. On this point, Bragg argues that “[u]nder New York law, criminal tax fraud in the fifth degree does not require financial injury to the state” and that “[f]ederal tax law also imposes criminal liability in instances that do not involve underpayment of taxes.” Merchan seems to have been convinced, rejecting Trump’s argument “that the alleged New York State tax violation is of no consequence because the State of New York did not suffer any financial harm.” He does not explain further, simply writing, “This argument does not require further analysis.”

Federal Election Law (intermediate strength charge?)

More central to Bragg’s legal theory are violations of federal election law under FECA (Federal Election Campaign Act). 

Bragg is arguing that Trump falsified the Trump Organization’s business records with the intent to criminally violate FECA. Ruling on Trump’s motion in limine, Merchan held that Bragg may not point to Cohen’s guilty plea or the Justice Department or FEC agreements with AMI as themselves evidence of Trump’s guilt, but that the district attorney may offer “testimony about the underlying facts … provided the proper foundation is laid.”

Trump has leveled multiple legal challenges against Bragg’s use of FECA as an object offense, arguing in his motion to dismiss that a violation of federal law can’t serve as the “other crime” under § 175.10. Merchan, however, held it could. Trump also argued that FECA preempts state law and thus rules out prosecution under § 175.10 with FECA as the object offense. Merchan rejected this argument as well, relying on a ruling last July to that effect by Judge Alvin Hellerstein of the U.S. District Court for the Southern District of New York in the context of rejecting Trump’s attempt to remove this case to federal court.

New York Election Law (the strongest charge?)

The final potential object offense, and the one that seems to bear the most weight in Bragg’s presentation of the case so far: New York Election Law § 17-152, a misdemeanor offense that prohibits “conspir[ing] to promote or prevent the election of any person to a public office by unlawful means.” Trump has sought to challenge Bragg’s use of this statute as well, arguing that it applies only to state and local elections, rather than presidential elections—which Merchan rejected. The former president likewise argued in federal court that FECA preempts § 17-152 in federal elections, but Judge Hellerstein held this to be “without merit.”

During opening statements on April 22, prosecutor Matthew Colangelo emphasized the role of § 17-152 in the district attorney’s case, declaring, “This was a planned, coordinated long-running conspiracy to influence the 2016 election, to help Donald Trump get elected.” Senior Trial Counsel Joshua Steinglass further underlined the importance of the statute the following day, describing § 17-152 as “the primary crime that we have alleged” as an object offense. “The entire case is predicated on the idea that there was a conspiracy to influence the election in 2016,” Steinglass said.

But § 17-152 requires that a conspiracy be carried out by “unlawful means”—so what “unlawful means” is Bragg alleging? Here, the legal theory loops back around to point to the other three potential object offenses: FECA violations, tax fraud, and AMI’s and Cohen’s misdemeanor falsifications of business records under § 175.05. (Note that while Merchan ruled out these third-party § 175.05 violations as object offenses for Trump’s violation of § 175.10, they’re still available to Bragg as a means by which to get to § 17-152.) Again, Bragg sets this out in his opposition to Trump’s motion to dismiss. Colangelo also gestured at this during his opening statement, describing the conspiracy as carried out “through illegal expenditures … using doctored corporate records and bank forms to conceal those payments along the way.”

Understanding this emphasizes the importance of the underlying FECA violations to Bragg’s case. The wrongdoing under federal campaign finance law supports two out of three remaining object offenses. Seen in a certain light, that makes it all the stranger that the U.S. Attorney’s Office for the Southern District of New York itself never brought federal charges against Trump under FECA—a decision for which there has never been a public explanation.
 

Summing It All Up

Let’s return to our chart for a moment. Once we incorporate the “unlawful means” needed to reach the § 17-152 object offense, it looks like this:

Clear as mud?

In all seriousness, what this deep dive has hopefully shown is that Bragg’s legal theory is genuinely tangled—though the district attorney’s office is doing its best to clarify matters. The next few weeks will show whether he’s able to walk the jury through it.

Well, that clears things up quite a lot? Not sure. But at least I’m now confident that I do not understand how to weigh various bits of evidence as the jury will see it in view of the underlying legal arguments that Bragg is asserting. It all boils down to how well Bragg can explain himself to the jury and whether Trump can sow enough confusion with at least one juror to avoid legal liability. 

Yup, clear as mud.

What about the rule of law?

This again raises the matter of laws being inadequate to deal with sophisticated white collar criminals like Trump. I keep seeing what looks to me to be major holes in both federal and state laws that allow smart criminals like Trump to avoid legal liability for their activities. It is starting to look to me like more actions that were intended to be illegal fall under various exceptions, ambiguities and loopholes than are found to incur legal liability or guilt. It’s like the exceptions and loopholes have swallowed up most of the actions that were supposed to trigger convictions for civil liability or criminal guilt.

No wonder this is costing DJT millions to defend against. A non-rich person could never mount the defenses that rich people like Trump can.