I wrote a piece on Monday that the 34 charges against former President Donald Trump may not be what they seem, that they might be trying to run up the counts to make it look worse, but the counts mainly revolve around the same transaction.
The indictment has now been unsealed, and my colleague Jennifer Van Laar has also written a good piece on the matter.
I wanted to further break down some of the legal questions raised.
According to the statement of facts, the counts are in connection with a hush payment that Trump’s former fixer, Michael Cohen, made to adult film star Stormy Daniels shortly before the 2016 election. They also relate to the “catch and kill” scheme with the National Enquirer to suppress negative stories in 2015 and the transaction with another woman, presumably Karen McDougal. How hard up is Manhattan DA Alvin Bragg to tar Trump? He even threw in the “Access Hollywood” “grab ’em” quote in his statement of facts. The statement of facts seems largely a recitation of things that sound bad but aren’t illegal.
The indictment itself is pretty much what I had predicted about “charge stacking.”
There are 34 charges of “Falsifying Business Records in the First Degree” that say “defraud and intent to commit another crime and aid and conceal the commission thereof, made and caused a false entry.” Then, the difference is entries in invoices, a ledger, or checks between February and December 2017. So it doesn’t even outline if there are different transactions, it could all be one incident alleged to be covered up if you read this.
The purpose was to charge a lot to make it look like more. Instead, it looks like less. It also exposes a lot of big problems and has big banana republic vibes. It doesn’t specifically note in the indictment what the underlying crime is that’s supposed to justify this. But if it’s an alleged federal election issue discussed in the statement of facts, that’s a big problem since that would have to be pursued in a federal court. Yet the feds decided not to pursue it because they knew how flimsy that would be. So that’s big problem number one. That’s something his attorneys will no doubt bring up in their motion to dismiss.
The second big problem is that all the dates on these counts are from 2017, plus the “schemes” or actions were supposedly in 2015 and 2016, so it raises statute of limitations questions. Normally, filing false business records would be charged as a misdemeanor, with a two-year statute of limitations. But Bragg appears to be trying to bootstrap the federal election crime as the underlying crime to make it a felony to get a five-year statute of limitations. But if the federal crime isn’t properly prosecuted in New York, that raises a question. Also if the federal crime involves concealment to help the campaign, how do payments in 2017 have anything to do with that? It is not illegal to make payments to keep someone quiet, just by itself, without the alleged federal election cover-up. So what is being alleged here? If the federal crime is the underlying crime how did any of these allegedly false filings have to do with it — or place it within the statute of limitations? So the allegations appear muddled, to say the least.
I saw over on Fox they’re also talking about a possible 136-year sentence. Theoretically. But that’s not the way that it works. The sentence would be between 1.5 – 4 years on each felony, if convicted. But the counts on the incident would probably run concurrently, meaning they would be served together, and as a first offender, it would probably be unusual to get jail time. That doesn’t lessen that this is a travesty of a prosecution.
Now, another aspect to this is timing. Trials can take forever. The next in-person hearing on the case is Dec. 4. That’s a long way off during which time Trump can point to this pathetic effort against him, campaign, and get a lot of money. It’s even conceivable that it could stretch right up to or even past the election, if it is not immediately dismissed.
I’m going to go through it more but those are the big things that I see at this point. There’s meat there for Trump’s attorneys to try to knock out the indictment. We’ll have to see how that will go. But yes, this is confirmation that this indictment is the turkey we thought it was.