On a glorious spring day, with barely a cloud in the sky over the Manhattan Criminal Court building and magnolia trees blooming across the five boroughs, a seventy-six-year-old businessman who has lately been living in Florida was arraigned on thirty-four felony charges of falsifying business records to disguise a payment that he made, via his personal lawyer, to a self-employed Texas woman more than thirty years his junior.
At a press conference after the arraignment, Alvin Bragg, the Manhattan District Attorney, pointed out that prosecutors in his office regularly indict people for falsifying business records. What made this case different, Bragg didn’t need to add, were the identity of the defendant and the legal strategy Bragg is using to elevate the charges of falsifying business records from misdemeanors to felonies.
In a sixteen-page indictment, “The People of the State of New York Against Donald J. Trump,” Bragg’s office accused the former President of “Falsifying Business Records in the First Degree in violation of Penal Law §175.10”—a New York statute—thirty-four times between February and December of 2017. The charges all relate to payments Trump made to Michael Cohen, his former personal lawyer, who, just before the election in 2016, had quietly paid off Stormy Daniels, an adult-film actress who claimed to have had an affair with Trump. (Trump denies this latter allegation.) For each of the thirty-four counts, the indictment accused Trump of acting “with intent to defraud and intent to commit another crime and aid and conceal the commission thereof.” Under New York law, intent to break another law is necessary to charge falsifying business records as a felony rather than a misdemeanor.
Trump and his supporters have accused Bragg, a Democrat, of concocting a legal theory as part of a political hit. The District Attorney, however, was at pains to stress the complex nature of the alleged crimes and the principles that his office was seeking to uphold. “At its core, this case today is one with allegations—like so many of our white-collar cases—allegations that someone lied again and again to protect their interests and evade the laws to which we are all held accountable,” the District Attorney said. “As this office has done time and time again, we today uphold our solemn responsibility to insure everyone stands equal before the law.”
The indictment didn’t specify the other crime that Trump was intending to commit when he made the payment to Daniels through Cohen—an omission that surprised some legal commentators who aren’t friendly to Trump. Speaking on MSNBC, Andrew Weissmann, a New York University School of Law professor who was one of the senior lawyers in the Mueller investigation, said of the indictment: “You’re left a little bit to wonder what precisely is the crime” that justifies the felony charges. At Bragg’s press conference, reporters pressed him on why the indictment hadn’t spelled out the other crime—or crimes—that Trump allegedly intended to commit. “The indictment doesn’t specify them because the law does not so require,” he said.
The statement of facts that Bragg’s office filed to the court along with the indictment did spell out the prosecution’s theory of the case, which is that Trump effectively conspired with others to defraud American voters in 2016 by purchasing and suppressing negative information about himself. “In order to execute the unlawful scheme, the participants violated election laws and made and caused false entries in the business records of various entities in New York,” the statement of facts says. “The participants also took steps that mischaracterized, for tax purposes, the true nature of the payments made in furtherance of the scheme.”
In explaining Trump’s motive in making the payoffs and falsifying business records, Bragg said at his press conference, “He did so to cover up crimes relating to the 2016 election.” Bragg also singled out two of the criminal statutes that he suggested the payoff to Daniels had breached: federal campaign-finance law and a New York election law that makes it a campaign violation for two or more people to conspire to further a political candidacy “by unlawful means.”
This justification for the felony prosecution won’t satisfy everybody—on Fox News, Bill Barr, Trump’s former Attorney General, called the case “pathetically weak”—and Trump’s legal team is sure to challenge it in pretrial hearings. But the underlying facts in the case, including the payoffs to Daniels and the reimbursements to Cohen, aren’t really in dispute. The indictment indicates that Bragg’s office has documentary evidence to back up its charges—invoices, business ledgers, signed checks—and it has been working on its over-all legal strategy since resurrecting a case that his predecessor and federal prosecutors both decided not to take to the courthouse.
On Tuesday evening, I spoke with Marc Agnifilo, a veteran New York criminal-defense lawyer who has also served as an Assistant District Attorney in Manhattan. Agnifilo said that he wasn’t surprised by the Trump indictment. “I’ve had a number of these cases filed by the Manhattan D.A.’s office, and they all take the same bare-bones approach,” Agnifilo said. “They don’t indicate in the charges what that second crime is.”
Agnifilo did add that the other crime is usually obvious, because the charge of falsifying business records is part of a larger indictment for larceny or fraud. “Here they don’t let on in the indictment what the second crime is, but the statement of facts does kind of tell us what it is,” Agnifilo explained. “It’s a little bit of a grab bag, whether it’s a state-elections crime, a federal-elections crime, a tax offense. Between the two documents, you have an idea of what their over-all theory is.”
In such a high-profile case, Bragg arguably should have gone beyond a grab bag. Assuming the case comes to trial, Agnifilo said, the prosecution will likely take the jury through the chronology of the payments and the Presidential campaign. “You say, ‘Look, this guy was running for President, and, lo and behold, all this stuff starts happening for the first time, so you know what his intent was.’ If they can put that together really tightly, that would be compelling.” Trump is likely to counter, Agnifilo added, that he was the victim of extortion. “He can say, ‘Yes, it does coincide with when I ran for President because that is when I was shake-downable.’ Someone is going to have the better of that argument. The defense has some decent arguments, the prosecution has some decent arguments, and someone is going to win.”
When is that likely to happen? At Tuesday’s arraignment, Judge Juan Merchan set the next in-person hearing in the case for December 4th. There will undoubtedly be some pretrial motions before then, including, almost certainly, a motion to dismiss the case from Trump’s side. But, assuming that the judge rejects that motion, the case seems likely to drag on well into 2024 before reaching trial. “I think a year is looking very optimistic,” Agnifilo said. “I did not think this would be adjourned right out of the chute for eight months. I now think we are looking at a year and a half, probably.”
With Trump facing the possibility of more serious criminal charges elsewhere, the New York case could turn into a sideshow. In Fulton County, Georgia, the district attorney, Fani Willis, is investigating the efforts of Trump and his associates to overturn the results of the 2020 election in that state. In Washington, D.C., a special counsel is looking into Trump’s actions following the 2020 election and into his alleged mishandling of classified documents after leaving office. Whatever happens in those investigations, though, Tuesday’s criminal indictment marks a low—for him and for the office of the Presidency. ♦
