“We just have to demonstrate that he will not take power if he does run, making sure he—under legitimate efforts of our Constitution—does not become the next president again,” Joe Biden said of Donald Trump in an often overlooked remark just a few months ago.
On Tuesday, Manhattan District Attorney Alvin Bragg, acting as an agent of Biden’s campaign strategy to eliminate his most likely political opponent, finally unsealed the pretextual indictment being used for just that purpose. Over and over again, the indictment claims Trump, “with the intent to defraud and intent to commit another crime and aid and conceal the commission thereof, made and caused a false entry in the business records of an enterprise.” But it fails to identify 1) the false statement, 2) why the statement was supposedly false, 3) the person or entity Trump supposedly intended to defraud, and 4) what crime Trump supposedly tried to cover up. These are nice-to-know details.
As we’ll see, the available public record strongly indicates these gaps cannot be filled with sufficient facts to support a criminal charge. These aren’t criminal charges. This is a publicity stunt.
This operation to kneecap Trump’s electoral chances would not have been possible without a sweeping and coordinated disinformation campaign by supposedly independent legacy media outlets. It matters not whether one reads the New York Times, NPR, or another supposedly serious legacy media platform. The lack of serious legal analysis in all of them is apparent, as is their preference for innuendo and providing laundry lists of other unproven allegations.
The legacy media have overlooked a long list of weaknesses in the legal case against Trump. Let’s walk through a few key points the get-Trump media and their cult won’t consider.
1) What does the statute in question actually criminalize?
The district attorney is attempting to criminalize the way in which Trump recorded the reimbursement to Michael Cohen for a non-disclosure agreement with Stormy Daniels. The statute provides, “A person is guilty of falsifying business records in the second degree when, with intent to defraud, he . . . Makes or causes a false entry in the business records of an enterprise.” Media reports gloss over the specific elements of this statute as well as Trump’s actions in the case, because Trump’s actual guilt or innocence is simply irrelevant.
2) Was Trump’s statement false?
Bragg is trying to prosecute Trump because of the way internal bookkeeping recorded payments to Cohen, who was Trump’s attorney at the time. Trump apparently labeled these expenses “legal fees” instead of something more specific detailing a non-disclosure agreement. But these were payments to his then-attorney for expenses. So where’s the falsehood?
Although the payments to Cohen were understood as a reimbursement for Cohen’s expenses, would a business normally be required to subdivide “legal fees” from “legal expenses?” If there’s a rule prohibiting the labeling of “expenses,” as “fees,” nobody so far has pointed it out.
3) Did Trump intend to defraud anyone?
In Trump’s FEC filing, he wrote, “In the interest of transparency, while not required to be disclosed as ‘reportable liabilities’ on Part 8, in 2016 expenses were incurred by one of Donald J. Trump’s attorneys, Michael Cohen. Mr. Cohen sought reimbursement of those expenses and Mr. Trump fully reimbursed Mr. Cohen in 2017. The category of value would be $100,001-$250,000 and the interest rate would be zero.”
The statute requires an intent to defraud. But whom is it alleged Trump intended to defraud? Who is the victim? If the FEC is the supposed victim of this supposed “false business record,” then the prosecutor is going to have a hard time showing that the FEC cared more about Trump’s internal bookkeeping than they seemed to with the FEC disclosure form, which spelled out the expense. Did Trump even disclose his internal record keeping to the FEC? Why would he if he filed a separate disclosure for that purpose? So how can it be said that the internal business record had anything to do with the FEC?
4) How does the Manhattan D.A. get around the two-year statute of limitations?
Nobody disputes the fact that the New York law criminalizing falsification of business records is a misdemeanor with a two-year statute of limitations. The only way, therefore, to drag this 2016 incident into a 2023 courtroom is to recharacterize it as a felony. But, it’s still not clear how the prosecutor can argue the case has not also passed the five-year statute of limitations on “all other felonies.” It’s possible the D.A. will argue that Trump has been, “continuously outside the state,” of New York which conceivably would allow the prosecutor to exclude that time from his calculation. Of all the leaks out of the Manhattan D.A.’s office, none appear to explain this giant roadblock.
5) How can Bragg argue that a misdemeanor should be treated as a felony?
In order to get the longer statute of limitations, the prosecutor appears to be invoking this statute:
A person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.
Under this theory, the prosecutor needs to go back to the well to charge Trump for essentially the same “fraud” a second time. To get to the misdemeanor, the D.A. had to argue that Trump recorded the payment as “legal fees” in order to defraud . . . some unspecified person. Who? We aren’t clear on this based on the leaks or the language of the indictment, but the argument appears to be that Trump was attempting to defraud the Federal Election Commission, which regulates campaign finance.
The problem is the FEC has actually declined to prosecute this very same transaction and Michael Cohen pleaded guilty to a suite of crimes, including at least one related to this payment. Bragg’s case, then, requires one to believe Trump was attempting to cover up Cohen’s payment by identifying the reimbursement as “legal fees.” But this is where the case begins to eat its own tail.
If Trump reimbursed Cohen, long-standing precedent provides that Cohen is no longer the one making the contribution for purposes of the FEC reporting. FEC regulations say, “A loan, to the extent it is repaid, is no longer a contribution.” Thus, if Trump reimbursed Cohen for the Stormy Daniels payment, it can no longer be considered a contribution on behalf of Cohen. This is devastating to the prosecution’s theory because individuals who are not the candidate (e.g., Cohen, but not Trump) are subject to the $2,700 per individual contribution limit. But Trump could give as much money as he wanted to his own campaign, without limits, so long as he disclosed it—which he did.
So, again, who did Trump supposedly defraud with the “false” business record?
What is the “other crime” Trump supposedly was covering up by recording the expense as “legal fees?” In order to get there, we have to ignore FEC regulations providing that Trump reimbursing Cohen makes it a Trump contribution, not a Cohen contribution. But that is, in fact, the rule. According to Bragg’s theory, Trump attempted to “cover up” Cohen’s crime by recording the expenditure as “legal fees.”
Essentially, the prosecutor is trying to argue it both ways. First, because he wanted to argue that Trump exceeded the $2,700 limit, he argued that Trump didn’t reimburse Cohen for the fees. But Bragg’s office also contends that Trump did reimburse Cohen for purposes of demonstrating a cover-up. The prosecution’s entire theory rests on the proposition that Trump always intended to reimburse Cohen for the payment, making Cohen’s payment a loan. But if Trump paid Cohen back and reported it to the FEC, then it appears he complied with campaign finance law.
6) The indictment appears to fail to meet New York minimum requirements.
Under New York law, and contrary to the statement made by the prosecutor during his press conference, an indictment must include, “A plain and concise factual statement in each count which, without allegations of an evidentiary nature . . . asserts facts supporting every element of the offense charged and the defendant’s or defendants’ commission thereof with sufficient precision to clearly apprise the defendant or defendants of the conduct which is the subject of the accusation.” Each of these indictment counts fails to identify the supposed false statement, fails to identify the underlying crime Trump is supposedly guilty of covering up, and fails to explain who Trump was supposedly defrauding by entering these “false” business records. About the only thing that differentiates one charge from another is a reference to specific documents which supposedly contain some kind of false statement.
7) Does the prosecution apply the same rules to Democrats?
Many have pointed to the lenient treatment Hillary Clinton received when the FEC settled with her for mischaracterizing the fees paid by her campaign for the dossier used to frame Trump as “legal expenses.” The fact pattern seems strikingly similar to the one now being used by the Manhattan D.A. to prosecute Trump, yet Clinton escaped with a measly $8,000 fine and, notably, was neither indicted nor arrested.
But Clinton’s case, in many ways, was much worse. First, she used campaign funds, not her own personal funds. Second, no plausible theory exists for arguing expenses for framing Donald Trump were anything but an effort to gain an advantage in the election. In Trump’s case, he used personal funds to kill a story about an alleged affair. The electoral benefit of this was negligible as the public had already heard many stories about Trump’s philandering. Yet he nevertheless reported the expenses to the FEC while simultaneously disputing that the expense was election related.
But it seems people have forgotten that Clinton donors also ran a particularly cynical campaign of compensating women for accusing Trump of more philandering. As noted in The Hill:
A well-known women’s rights lawyer sought to arrange compensation from donors and tabloid media outlets for women who made or considered making sexual misconduct allegations against Donald Trump during the final months of the 2016 presidential race, according to documents and interviews.
California lawyer Lisa Bloom’s efforts included offering to sell alleged victims’ stories to TV outlets in return for a commission for herself, arranging a donor to pay off one Trump accuser’s mortgage and attempting to secure a six-figure payment for another woman who ultimately declined to come forward after being offered as much as $750,000, the clients told The Hill.
The women’s accounts were chronicled in contemporaneous contractual documents, emails and text messages reviewed by The Hill, including an exchange of texts between one woman and Bloom that suggested political action committees supporting Hillary Clinton were contacted during the effort.
Bloom, who has assisted dozens of women in prominent harassment cases and also defended film executive Harvey Weinstein earlier this year, represented four women considering making accusations against Trump last year. Two went public, and two declined.
The selective investigation and prosecution of election laws based on the political orientation of the candidate is a clear violation of international standards of election fairness. Indeed, the United States once condemned Egyptian authorities abusing the criminal process to neutralize potential opposition candidates. In other words, if these trumped up charges were being used to disable a candidate in, say, Egypt or Russia, the U.S. State Department would be condemning these tactics in the strongest possible terms. But since Trump is the politician seeking access to the ballot, our own government seems blind to the election fairness standards we supposedly champion abroad.