INDICTMENT WATCH, Part 3

Your study guide to a New York indictment...if one ever comes.

The grand jury is reportedly meeting today and hearing evidence on a matter separate from the Trump case, and is apparently going on a “hiatus” for several weeks, likely due to the high holidays. At this point everyone is twiddling their thumbs, waiting for the “indictment” (I put it in quotes because it in some ways feels like an imaginary friend) to come. It might, it might not. But we need to remember that our expectations have been managed manipulated by one angry former president sitting in Mar-a-Lago — more on that in my weekly round up, tomorrow. For now, I am trusting my fellow legal eagles, and in particular my It’s Complicated podcast co-host, Renato Mariotti, who advises to sit tight, for now:

Renato Mariotti @renato_mariotti

It’s a good thing that the Manhattan DA is proceeding carefully and getting his ducks in a row. Rushing into an ill-considered prosecution is a bad idea. This is not a “delay.” There is no deadline to indict. Trump’s claims about his arrest date are speculation, nothing more.

erica orden @eorden

New: The Manhattan grand jury examining Donald Trump’s alleged role in a hush money payment to a porn star isn’t expected to hear evidence in the case for the next month largely due to a previously scheduled hiatus, per person familiar. https://t.co/JTNjEr8sUI

So what to do in the meantime? Well, when I was in law school, we had study guides to help us prepare for exams. Our exams were usually something called an “issue spotter”: This was an incredibly complicated fact pattern, and at the end you had to identify all the legal issues raised by the fact pattern and analyze them under the existing caselaw. The study guides basically summed up relevant cases and told you the big issues to remember and look out for in them.

We’ve been so busy freaking out about what’s going on in the grand jury, and whether an indictment will ever come, we (meaning, the news coverage) haven’t really discussed about what to do if one does issue. I figured I’d create a quick guide, with some helpful links, to understand that legal issues to keep an eye out for, why they might pose a challenge, and how to understand them.

1. Is the charge a misdemeanor or a felony?

This is the big threshold question that everyone is debating. The issue here isn’t so much a legal one: It seems like there is general consensus that the evidence would be sufficient to charge Trump with a violation of N.Y. Penal Law 175.05, Falsifying Business Records in the Second Degree, because he and Trump Org repaid hush money to Michael Cohen by disguising them as payments of legal fees, using sham invoices. Just Security has provided a helpful list of past prosecutions for falsification of business records by the Manhattan D.A.’s office, showing that this is not an uncommon charge and that Trump would be treated like any regular person who did the same thing.

The really issue here isn’t whether Manhattan D.A. could prosecute Trump for this, but rather whether he should — particularly if this is the only charge. A misdemeanor — a crime punishable by less than one year — is generally seen as a less significant offense and, given that this would be (possibly the first) criminal charge brought against a former president, could appear to be an attempt by Bragg to make a mountain out of a molehill, that he is trying to nail Trump on what his lawyers call a “bookkeeping error.” Law and order, amirite?

[BUT HER EMAILS: I’ll just note for whoever cares that the main violation that Hillary Clinton was being investigated for in 2016, mishandling classified information (18. U.S.C. 1924), was a misdemeanor at the time. (Trump later signed a law increasing it to a felony punishable up to five years.) She was also a presidential candidate at the time — something Republicans keep pointing out as somehow making any prosecution of Trump “politically motivated.” Anyway.]

Basically, if this ends up being only a misdemeanor (which I personally think is unlikely), it will be a bad look for Bragg even if it is a legally sound case.

2. If it’s a felony, what is the crime being used to bump up the charge?

Last week I posted my flowchart of possible legal theories which Bragg might pursue, if he chooses to “bump up” the misdemeanor to a felony. Bragg can basically charge Trump with a felony, rather than a misdemeanor, if he can demonstrate that Trump falsified his business records with the intent to commit or conceal another offense. The question if Bragg goes this route is, what will the other offense be?

Basically it looks like there are two main avenues: The campaign finance avenue and the tax fraud avenue. Further, on the campaign finance side, there is the question of whether the violation would be of state law, or of federal law. Each of these presents some significant legal questions which Renato and I have highlighted on our podcast. And unlike the base charge for falsifying business records, linking that to a campaign finance violation would be a relatively novel legal theory, which opens the door for opponents to claim that Bragg is singling out Trump and also makes it a riskier prosecution, since legal issues could be resolved against him. David French makes that argument here.

The tax fraud avenue is laid by Andrew Weismann and Ryan Goodman in this New York Times piece. This is less novel, but the specific theory that Weismann and Goodman present — that the “fraud” was that Trump helped Cohen inflate his income on his tax returns — suggests that New York received more, not less, tax revenue. Not being able to show that New York suffered a loss may undercut a key element required to demonstrate an intent to defraud, as explained below.

3. What is the evidence of Trump’s intent to commit the crimes he’s been charged with?

In real estate they say it’s location, location, location. In criminal law, I’d say it’s intent, intent, intent. Former prosecutors hammer home that the most difficult element to prove in a crime — particularly in white collar crimes — is the defendant’s state of mind.

This piece by

Randall Eliason

on

Sidebars

was a great explainer on the intent element, particularly "the intent to defraud," which has specific legal meaning, namely, that the defendant intended to "cheat or deprive another person of property or a thing of value or a right." (This is why the state of New York actually not losing tax money in the scheme, for example, would not meet this standard.) Eliason argues that the intent element could be problematic even for the base misdemeanor charge of falsifying business records, and especially so in tying the intent to either campaign finance violations or criminal tax fraud. He makes a compelling case, though there are other legal analysts and prosecutors who disagree. (A debate on legal Twitter is ongoing.)

[UPDATE 4/3/23: Just Security has published this comprehensive rebuttal, noting that the “intent to defraud” under New York law in the First District (the district where Trump’s case is) is broadly construed.]

We don’t know what evidence Bragg has, but this is a key issue to keep in mind when reading any indictment that comes down — what does Bragg’s evidence say about Trump’s state of mind?

4. What’s new that the D.A. didn’t know before?

Finally, Bragg’s case has been known as the “zombie case” because it was brought back from the dead. After all, the Stormy Daniels payments happened in 2016 and Michael Cohen was charged and pleaded guilty to campaign finance violations (and other crimes) in federal court back in 2018. (To understand why Bragg can argue that the statute of limitations hasn’t passed, see this report by Citizens for Responsibility and Ethics, “Issues with Timing.”) What’s new?

Like the misdemeanor issue, the question of what new evidence Bragg has isn’t so much a legal problem as a perception problem. We know that the Manhattan D.A.’s office, under Bragg’s predecessor, looked into the Stormy Daniels payment issue. While it looked like they were working on building a case, Bragg decided not to continue pursuing it after he took over. Now, a little over a year later, he’s moving (mostly) full speed ahead. If it’s the same evidence that his office has been sitting on for years, there is a fair question to ask: Why now? If there is nothing significantly new, it will provide fodder for Trump and his allies to claim that Bragg only decided to bring this prosecution after Trump decided to run for president. (We’ll leave aside the fact that Trump conveniently decided to announce that he’s running [checks watch] about a year early — again, we’re talking about perception here.)

I have no idea what evidence Bragg has, and whether, in particular, anything has surfaced in the last year that would have changed the strength of the case and his mind about moving it forward. However, this amazingly detailed timeline of the Stormy Daniels saga lays out all the things we already know — and provides a reference point for comparing what Bragg includes in his indictment. If one ever comes.

I have to say that the Stormy Daniels hush money case is actually a great legal issue-spotter — though usually we law professors have to make them up, not rip them directly from the headlines. More to come tomorrow in my round up…until then, happy studying!