A few people reached out to me to ask whether I could explain what the other crimes were, the crimes that would transform Trump’s misdemeanor falsification of business records to reflect payoffs to two women and a doorman as legal expenses into the 34 counts of the Class E non-violent felony of falsifying of business records in the first degree.
In addition to the indictment, District Attorney Alvin Bragg separately filed what he captioned “statement of facts,” which isn’t actually a thing although it told the prosecution’s story behind the indictment. Whether this will bind the prosecution later remains to be seen, but for now it’s the best there is.
But what is missing in both documents is the other crime.
Each count recites the statutory language, as counts usually do, including this:
…with intent to defraud and intent to commit another crime and aid and conceal the commission thereof…
There are a number of possibilities as to the “other crimes,” which may be the same for all counts or may be different, since there’s no clue what they actually are. It could be federal campaign finance law violations, notwithstanding any of a host of novel issues arising if that’s the case, or it could be state election law issues. It could be state tax evasion, as the “legal fees” which concealed the payoffs were likely deducted from income taxes as business expenses when they weren’t. But was that his intent in concealing the nature of the payoffs?
And would Michael Cohen be a viable witness to prove any intent issue given his credibility challenges?
For all the hoopla, which wasn’t all that hoop or la despite the efforts of so many to jazz this up to excite us about the “first time in history a former president has been indicted,” the very serious arguments about how this is a very serious indictment are, on the one hand, unavailing, and on the other hand, might at worst result in Trump getting a sentence of probation as a first time non-violent offender. Of all the many things Trump has done throughout the course of his career and his presidency, will sentencing him to probation warm your cockles?
As my old buddy, Mark Draughn, the Windypundit, wrote the other day, there is a reason nothing about this indictment feels as significant as it should.
Then I came across a random tweet from a total stranger that managed to put it all in perspective:
The weirdest part about Trump being indicted for fraud, is that he was once President.
Tgage @tgagemurphy — 4:40 PM · Mar 31, 2023Once you see it, it seems so obvious.
There is nobody who has ever done business with Trump who is surprised that he engaged in fraud, as well as a laundry list of other unsavory and/or criminal activities. This isn’t offered as evidence of criminal conduct as much as evidence that nobody who knew him ever thought Trump was a paragon of virtue, but guy whose normal world involved skirting the law and screwing people over for a buck. The thing wasn’t that anyone would be surprised that Trump committed a crime, but that anybody would consider it a big deal but for the fact that this guy was, of all crazy things, president.
We’re still a ways off from the defense motions to “inspect and dismiss” as it’s called in New York, and until the question of what the “other crimes” may be is answered, and answered in a fashion that will hold the prosecution to their claim so they can’t wiggle out later, there really isn’t much more to say about this indictment.
A former president has been indicted. There you go.
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Serious question: what in the Sam Hill is a Statement of Facts, besides a written press conference that, perhaps, skirts the ethics rules about pretrial publicity and juror taint? Is this something used often/rarely/only for DJT?
– Sleepless in Wisconsin (where we just yesterday handed our state’s highest court over to the biggest spender.)
As far as I can tell, this is something Bragg just made up. I’ve never seen one before.
How can prosecutorial immunity apply to a Statement of Facts that plays no legal role in the criminal case?
To my relatively primitive understanding of the law, yesterday reminded me of when someone is charged only with resisting arrest.
Had yesterday amounted to anything more than 34 ways to charge for the same incident I might have changed my opinion that this situation is an abuse of prosecutorial power. Despite a burning desire to see Trump get what’s coming to him, this ain’t it. One can only hope Bragg’s actions inspire more people to believe that prosecutors should exercise more restraint.
JMO, and IANAL, but charging Il Douche as an adult seems clear evidence of prosecutorial overreach.
As it came into my peripheral vision, I have first read it as “charging as Class II Douche”. Felt way too bland and weak for Trump’s league of crookedness, just like the real indictment.
This type of document is well-known in sovereign citizen circles. According to SC mythology, the “Affidavit of facts” puts facts on the record that can only be refuted by another sworn affidavit.
This case represents several historical “firsts.” The use of sovereign citizen tactics by a prosecutor is my favorite so far.
I can’t shake the feeling that if an IRS audit showed payment for a confidentiality agreement was improperly claimed as deductible legal expense, the taxpayer would be required to file an amended return and pay the tax and penalties.
As for the election law violations, given the failed Edwards prosecution, Trump has a plausible defense that he believes his payments to his mistresses were not campaign expenses based on Cohen’s legal advice.
Which brings us to the distinction between a lawyer revealing that his client was planning to kill his mistress from a lawyer whose advice led his client to believe the client’s hush money payments were legal. Did Cohen violate his ethical obligation of confidentiality to get a plea deal?
I believe that the “statement of facts” pales in comparison with some of the federal “speaking indictments” that we’ve all seen before. And we’ve seen numerous state indictments in conspiracy cases that look like the federal indictments.
They all may be wrong. But this “statement of facts” doesn’t stand out.
An indictment is an indictment, speaking or otherwise. A Statement of Facts is…not an indictment.
But are we talking form, or substance?
Both, and form matters in an accusatory instrument.
James D. Zirin, an “opinion contributor” at thehill.com, has just written “It is apparently the shopworn practice in white-collar crime cases in the Manhattan district attorney’s office to file a separate document called a “statement of facts” that puts more flesh on the bareboned charges.”
Is this just smoke coming out of his ears, or maybe ChatGPT output?
Yeah, that’s nonsense.