To treat Donald Trump's alleged falsification of business records as a felony, Manhattan prosecutors must identify "another crime" that he was trying to conceal or commit. But the indictment that was unsealed yesterday, which charges the former president with 34 felonies, is vague on that point. So is Manhattan District Attorney Alvin Bragg, who alluded to several possibilities in public statements on Tuesday.
That continuing ambiguity is striking, because the district attorney's office has been mulling charges like these against Trump for years. The idea was internally dubbed the "zombie case," because it kept coming back to life no matter how many times prosecutors working for Bragg's predecessor expressed skepticism about its viability. Yet here we are, nearly seven years after the hush payment at the center of the case, and Bragg still won't say precisely why he is charging falsification of business records, ordinarily a misdemeanor, as a felony.
Less than two weeks before the 2016 presidential election, Trump lawyer Michael Cohen paid porn star Stormy Daniels $130,000 to keep her story about a 2006 affair with Trump out of the press. Federal prosecutors viewed that payment as an excessive campaign contribution, and Cohen accepted that characterization in a 2018 guilty plea. Trump reimbursed Cohen with a series of checks in 2017. According to the federal sentencing memorandum in Cohen's case, the Trump Organization misrepresented those checks as payment for legal services under a nonexistent retainer agreement.
The New York indictment counts each of those checks, along with each invoice and ledger entry related to them, as a distinct felony. According to the indictment, that's because each record was created "with intent to defraud and intent to commit another crime and aid and conceal the commission thereof." But the indictment does not say what the other crime was.
The "statement of facts" accompanying the indictment notes Cohen's guilty plea, which suggests that "another crime" refers to his violation of federal election law. But it's not clear that a federal offense counts as "another crime" under the New York law dealing with falsification of business records, which is one reason that Manhattan prosecutors previously were leery of pursuing charges against Trump.
The statement of facts also says the hush money scheme "violated election laws." It does not say which election laws. But in a press release on Tuesday, Bragg said the "criminal activity" that Trump sought to "conceal" included "attempts to violate state and federal election laws" (emphasis added). In comments to reporters, Bragg mentioned one possibly relevant New York statute:Section 17-152 of the state's election law.
That provision says "any two or more persons who conspire to promote or
prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor." Assuming that "unlawful means" includes a violation of federal limits on campaign contributions, the money that Cohen says he gave Daniels at Trump's behest might qualify as a violation of Section 17-152.
Still, it's not clear why Bragg describes that offense and the federal crime underlying it as "attempts to violate state and federal election laws." If Cohen made an illegal campaign contribution, he did not merely attempt to violate federal law; he succeeded in doing so. Likewise, if he and Trump conspired to promote Trump's election "by unlawful means" and "acted upon" that plan, the crime was completed and not merely attempted.
The statement of facts hints at yet another possible candidate for "another crime." It says Trump and Cohen "took steps that mischaracterized, for tax purposes, the true nature of the payments made in furtherance of the scheme" (emphasis added). That requires some explaining.
According to the statement of facts, Trump paid Cohen a total of $420,000, which included the $130,000 hush money reimbursement and "a $50,000 payment for another expense." Trump Organization CFO Allen Weisselberg "then doubled that amount to $360,000 so that [Cohen] could characterize the payment as income on his tax returns, instead of a reimbursement, and [Cohen] would be left with $180,000 after paying approximately 50% in income taxes."
Under New York law, filing a false statement "with intent to defraud the state or any political subdivision" is a Class E felony. But if Cohen mischaracterized a reimbursement as income on state or city tax forms, that would be a peculiar sort of fraud, since the effect would be to increase his tax liability.
At his press conference yesterday, Bragg again mentioned the tax angle, but he did not explicitly say he was relying on it to turn Trump's falsification of business records into a felony. "His wording was ambiguous in places," The New York Times notes. "At one point, he seemed to suggest that a planned false statement to New York tax authorities was just an example of the ways by which Mr. Trump and Mr. Cohen purportedly violated thestate law against conspiring to promote a candidate through unlawful means."
The indictment says Trump falsified records not only to "conceal" another crime, which could refer to an election law violation that had already occurred, but also with "intent to commit another crime," which could refer to future tax returns filed by Cohen. Does Bragg have in mind two or more underlying crimes? If so, what are they? "The indictment doesn't specify them because the law does not so require," Bragg told reporters.
Karen Friedman Agnifilo, a former Manhattan chief assistant district attorney, and Norman Eisen, a senior fellow at the Brookings Institution, are not troubled by Bragg's reticence. "In an abundance of caution," they write in aNew York Times essay, Bragg "not only alleges violations of state campaign finance lawbut also alleges federal violations. We believe that ispermitted, given that the fraudulent books and records and other relevant statutes refer simply to covering up 'another crime' or using 'unlawful means' and do not specify whether they need be federal or state."
Agnifilo and Eisen argue that Bragg has a "strong" case against Trump, even if the details remain hazy. They note that "the creation of phony documentation to cover up campaign finance violations has been repeatedly prosecuted in New York," although none of those cases involved federal candidates.
Other legal observers have a different take. "Based on what I have seen so far," writes Richard L. Hasen, a UCLA election law expert, "the decision to charge Donald Trump with felonies in New York state is a mistake both legally and politically."
Cohen said he paid Daniels at Trump's behest, which implied that Trump had solicited and accepted an illegal campaign contribution. Although Hasen thought that charge was supported by the evidence, he notes that the Justice Department never pursued it, "perhaps because of political interference from Trump's then-attorney general, Bill Barr." But even after Trump left office and Merrick Garland replaced Barr as attorney general, federal prosecutors conspicuously declined to charge Trump in connection with the hush payment.
"The federal case would not have been a slam dunk, because there were big legal and factual issues," Hasen says. "Legally, some have argued that these payments were personal expenses, not campaign expenses, even if shutting Daniels up would have helped Trump politically, too. Factually, to turn a campaign finance violation into a criminal one, prosecutors would have to prove that Trump knew he was violating campaign finance laws and did so willfully. Proving intent can always be tricky. Just ask those who (unsuccessfully) prosecuted former Senator John Edwards."
Edwards was accused of accepting several hundred thousand dollars in illegal campaign contributions from a wealthy supporter. Edwards used the money to hide an extramarital affair and the baby that resulted from it. Federal prosecutors argued that his intent was to avoid a scandal that would have compromised his campaign for his party's 2008 presidential nomination. Edwards argued that covering his mistress's living expenses was a personal expenditure aimed at deceiving his wife, who was dying from cancer at the time. Jurors evidently saw that explanation as plausible, because they acquitted Edwards of one charge while deadlocking on five others.
In addition to the obstacles that federal prosecutors would have faced if they had pursued a case against Trump, Hasen says, Bragg's case "has new, more serious ones." In particular, "it is far from clear that Trump could be liable for state campaign finance crimes as a federal candidate." Hasen adds that "state prosecutors may be precluded from prosecuting federal candidates for federal crimes under a rule called 'preemption,' meaning [charges] have to be brought by federal authorities rather than state authorities." Those "thorny issues," he says, "likely will have to be resolved by appeals courts over years."
Robert Kelner, an election law specialist at Covington & Burling, is similarly skeptical. "The local prosecutors seem to be relying in part on a bank shot exploiting Michael Cohen's guilty plea in a federal campaign finance case," he told the Times. "But there were serious questions about the legal basis for the case against Cohen, making that a dubious foundation for a case against a former president. Prosecutors also allude vaguely to 'steps' taken to violate tax laws, but they say little to establish what that might mean."
Legal questions aside, the moral basis for this prosecution is weak. The transaction with Daniels, while tawdry, was consensual. Likewise Cohen's fronting of the money and Trump's reimbursement. There was nothing inherently criminal about any of this. The payment was illegal only if it is construed as a campaign contribution, a questionable proposition that Cohen himself accepted only when confronted by a litany of related and unrelated charges that could have sent him to prison for decades instead of the three-year sentence he ultimately received. But even if you accept that contentious interpretation of federal election law, the question remains: Who was victimized by the hush payment?
Bragg thinks voters suffered, because they were deprived of information that might have influenced their choice between Trump and Hillary Clinton. Yet Trump had a long, widely familiar record of extramarital affairs, and it seems unlikely that yet another one would have swayed voters who were otherwise inclined to support him. And if Trump had used campaign money to directly pay off Daniels rather than using personal funds to reimburse Cohen, as the government's theory in the case against Cohen suggests he should have, the result would have been the same: Daniels would have kept quiet for the time being, and any scandal would have been postponed until after the election.
It is likewise hard to figure out whose rights were violated by Trump's misrepresentation of the money he paid to Cohen. New York's business records law requires an "intent to defraud," which in common parlance would mean that Trump used deceit to rip someone off.
Some of Bragg's critics say that element "requires proving that the scheme resulted in cheating or depriving another person of property or a thing of value or a right and that there is no such evidence here," Agnifilo and Eisen write. "That may be the casein other jurisdictions, but in New York,there is no such requirement. New York appellate courtshave heldina long series of casesthatintent to defraud includes circumstances in which a defendant acts 'for the purpose of frustrating the state's power' to 'faithfully carry out its own law.'"
The victim, in other words, was the government, which had an interest in prosecuting debatable violations of state election law that hinge on debatable interpretations of federal law. It is hard to muster much indignation at that injury, let alone enough to support 34 felony charges. The elevation and multiplication of charges, combined with Bragg's belated reassessment of the case's legal merits, reinforce the suspicion that the prosecution is politically motivated.
AsReason's J.D. Tuccille notes, other potential cases against Trump involve much more serious charges, including solicitation of election fraud in Georgia and his broader scheme to stop Joe Biden from taking office. By bringing a case involving relatively minor misconduct and "tendentious interpretations of law," Tuccille warns, "Bragg and company could delegitimize the legal process and invite retaliation from Republicans when they have the opportunity to return the favor."
Hasen has similar concerns. "This kind of case can give credence to Trump claims of a witch hunt," he writes. "It is very easy to see this case tossed for legal insufficiency or tied up in the courts well past the 2024 election before it might ever go to trial. It will be a circus that will embolden Trump, especially if he walks."
Prosecutors are still hazy about what crime Trump was trying to conceal by falsifying business records? ›
But in a press release on Tuesday,
As part of a scheme to reimburse former Trump attorney Michael Cohen for hush money payments to porn actress Stormy Daniels, Trump fraudulently recorded $130,000 in expenses as the cost of legal services for Cohen, the indictment alleges.What is the penalty for falsifying business records in New York? ›
Falsifying Business Records: Penalties and Punishment
A conviction for the misdemeanor crime is punishable by as long as one year in jail while the class "E" felony offense has a potential penalty of up to four years in prison.
For falsifying business records to a second degree, a conviction will result in a Class A misdemeanor. All misdemeanors in New York have a statute of limitations for two years. On the other hand, falsifying business records in the first degree is a Class E felony. A felony offense statute of limitations is five years.What does falsifying company records mean? ›
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; or. alters, erases, obliterates, deletes, removes or destroys a true entry in the business records of an enterprise; or.What does falsifying records in the first degree mean? ›
omits to make a true entry in the business records of an. enterprise in violation of a duty to do so which he or she. knows to be imposed upon him or her by law or by the. nature of his or her position; or. prevents the making of a true entry or causes the omission.What is the crime for falsifying federal documents? ›
Penal Code 115 PC - When is "filing false documents" a crime? Penal Code § 115 PC makes it a criminal offense in California knowingly to file, register, or record a false or forged document in any public office within the state. Doing so is a felony offense that is punishable by up to three years in jail or prison.What is an example of falsifying company records? ›
There are many ways to falsify documents. For instance, if you answer questions on a form by providing false information or use company letterhead without authorization, you could run afoul of the law. Forging a signature comes under this category as does the act of altering, concealing or destroying records.What are examples of falsifying records? ›
- Providing inaccurate financial statements including profit and loss statements.
- Submitting inaccurate tax forms.
- Falsifying real estate documents.
- Misrepresenting intellectual property rights.
- Forging signatures on checks.
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.
Some offenses such as rape and murder have no statute or limitations. Most felony offenses have a five year statute of limitations period. Misdemeanor offenses have a two year statute of limitation period, while petty offenses generally have a one year statute of limitations.What is falsifying business records in the second degree in NY? ›
An "A" misdemeanor punishable by up to one year in jail, Falsifying Business Records in the Second Degree, New York Penal Law 175.05, is a crime that usually involves the destruction or alteration of a business record.What is the legal term for falsifying documents? ›
Faking a signature without permission, making a false document, or changing an existing document are all considered to be a forgery. Forgery is a crime and punishable by law. Although penalties will vary from state to state, all fifty states consider forgery to be a felony.Can a business tell you you can't record? ›
This is known as a “one-party” consent rule. But, there are twelve states — including California — in which it is illegal to record a conversation unless all parties to the conversation have consented to the recording. This is known as a “two-party” consent rule.What is falsifying public records or altering a? ›
Falsifying public records or altering a legal document is larceny. Embezzlement can be committed only by physically taking property from the possession of another. A person's intent to return embezzled property—or its actual return—is not a defense to the crime of embezzlement.What is deliberate falsification? ›
Falsification is the act of deliberately lying about or misrepresenting something. If you write a note to your teacher excusing your absence the day before and claim it was written by your dad, that's falsification.Why do people falsify records? ›
Both employers and employees may choose to falsify a document for the sake of their own personal gain. For example, an employee may alter the amount of hours they have worked during the week, or an employer may want their company to look more attractive by changing the number of sales on their records.What is the difference between forgery and falsification? ›
A textbook definition of forgery is the making of a false document with the intent that it should be used or acted upon as if it's genuine. Therefore, the falsification of document includes altering a genuine document in any material part.Is falsifying financial statements illegal? ›
When you falsify that information to convince the other party to give you money or credit, it's a form of fraud. It violates PC 532a(1) making false financial statements. If convicted of this crime, you could be facing up to 3 years in prison.What is the penalty for defrauding the federal government? ›
The maximum penalty for major fraud against the government in violation of 18 U.S.C. Section 1031 is 10 years' incarceration and/or a fine of up to $1,000,000.00. The maximum penalty for violations of 18 U.S.C. Section 287, the false claims statute, is 5 years in prison and/or a fine.
What is the Statute of Limitations for Federal Crimes? The statute of limitations is the time limit for filing charges against the defendant. The general federal statute of limitations for felonies stand for the proposition that the government can no longer file criminal charges for an offense once 5 years has passed.What is an example of falsification statement? ›
An example of a falsifiable statement is that all cars are red. This statement can be proven false easily with any observation of a car that is not red. Anything that cannot be proven false is considered pseudo-science and not valid for scientific inquest.What are some common types of dishonesty in business? ›
Dishonesty in the workplace includes employee theft, submitting incorrect time sheets, lying to managers and co-workers and unethical conduct such as harassment or drug abuse. When a small business experiences dishonesty in the workplace it can result in lost revenue, a drop in productivity and lower morale.What is falsification misconduct? ›
Falsification: Manipulating research materials, equipment, or processes, or changing or omitting data or results such that the research is not accurately represented in the research record.What is 130.55 NY Penal Law? ›
According to New York Penal Code § 130.55, third degree sexual abuse may be charged if a person has imposed sexual contact on another person without that person's consent. Third degree sexual abuse is less severe than second degree sexual abuse and first degree sexual abuse.What is penal law NY 240? ›
Placing a false bomb or hazardous substance in the first degree. Placing a false bomb or hazardous substance in a sports stadium or arena, mass transportation facility or enclosed shopping mall. Unlawful prevention of public access to records.What is Penal Law 125.27 NY? ›
Under our law, a defendant is guilty of Murder in the First Degree when, with the intent to cause the death of another person, the defendant causes the death of such person [or of a third person]2 and the defendant was more than eighteen (18) years old at the time of the commission of the crime.What crime is exempt from the statute of limitations? ›
Cases involving severe crimes, like murder, typically have no maximum period. Under international law, crimes against humanity, war crimes, and genocide have no statute of limitations.Can I go to jail for something I did years ago? ›
Under California Penal Code 801 PC, felonies (or offenses punishable by imprisonment) have a statute of limitations of three years. Less severe charges involving misdemeanors have an SOL of one year (in general).What federal crimes have no statute of limitations? ›
Federal Crimes with No Statute of Limitations
Examples of federal crimes include: Capital murder, including genocide, murder committed in a federal building, or committed during a drug trafficking crime. Civil rights offenses resulting in death. Espionage.
A class E felony in New York is the lowest felony charge available and usually associated with serious crimes that did not warrant a higher felony charge. When, for example, a DWI or DUI case results in harm being done to a person or structure, a felony could be applied.