Trump And The “Another Crime” Problem

For all the former prosecutors on the payroll at MSNBC, the one thing that goes wholly unmentioned is that the “hush money” case against Trump for falsifying business records is a misdemeanor unless it’s in furtherance of another crime.

But dreadful isn’t a synonym for criminal, and nothing about the terrible facts of the case has eased my legal concerns. From the beginning, it has been obvious that the facts of the case are damning, but the law is cloudy. The reason is simple: To secure a felony conviction, the prosecutor has to prove that Trump falsified business records with an “intent to defraud that included an intent to commit another crime or to aid or conceal the commission thereof.”

This element does not require that the prosecution prove beyond a reasonable doubt that Trump committed “another crime,” but merely that it was his intention to do so when he intentionally falsified business records.

But what is the other crime? Here is where the case gets shaky. In court filings, the prosecution has argued that Trump was attempting to commit or conceal federal and state election law crimes, along with state tax crimes. The election law theory has real weaknesses, however. While I’ve long believed the hush-money scheme violated federal criminal law, I also recognize that the underlying legal theory has not been fully tested.

While David presents this is a one-step problem, there are two, as the state crime and federal crimes each require separate consideration. Initially, the problem with the state election law issue is that Trump was running for president, a federal office, and subject to federal election law. This would seem, at least on its surface, to pre-empt state election law.

As for federal election law, no court in New York has ever held that intent to violate a federal offence can serve as a predicate for a state falsifying business records offence.

As for state tax law, presumably intended to be violated by chalking up the reimbursement to Cohen for the hush money payments as legal fees, thus deductible as a business expense, upon which state tax would not be paid, there has yet to be a word of testimony to suggest that this either was done or intended. Indeed, there has yet to be any evidence that this was even possible, assuming Trump knew of and considered it when deciding to record the payments as legal fees.

To be clear, an untested legal theory is not the same thing as a weak or specious theory. If Trump is convicted, his conviction could well survive on appeal. The alternative, however, is dreadful. Imagine a scenario in which Trump is convicted at the trial, Biden condemns him as a felon, and the Biden campaign runs ads mocking him as a convict. If Biden wins a narrow victory but then an appeals court tosses out the conviction, this case could well undermine faith in our democracy and the rule of law.

It seems imprudent for Biden to promote Trump’s conviction as a reason to vote blue. First, it’s not as if this would be a secret requiring Biden to shout it from the rooftops lest people be unaware. Second, there are a surprising number of people who despise Trump but nonetheless believe that this was a politically-motivated prosecution, and might be swayed toward Trump for that reason. Third, as president, Biden should have a positive reason to ask people to vote for him, not to vote against Trump, the felon.

But the technical legal issues aside, what has the prosecution offered in evidentiary support its its allegation that the falsifying of business records was done in furtherance of the commission of another crime? Could it have been? Sure, in a theoretical sense, just as it could similarly have been done to save Trump from looking like the skeevy, disgusting, philandering, amoral piece of dreck he is. He didn’t want the Stormy story to come out on the heels of the Access Hollywood story, and he didn’t want the story that he bought silence coming out by leaving a trail of evidence in his reimbursement payments to Cohen. Would anyone seriously doubt Trump would be that conniving and simple at the same time?

Has the prosecution offered any evidence to suggest that Trump’s purpose wasn’t the most obvious and superficial possible? Not a word. It’s even possible that Trump could argue that he thought payments to Cohen, because Cohen was his lawyer, were properly recorded as legal fees, as some people would assume that any payment to a lawyer for any purpose was, by definition, a legal fee. Again, dumb and simplistic, perhaps, but this is Trump we’re talking about.

What evidence should the prosecution have proffered to make its case and elevate the misdemeanor to a felony? Beats me. Perhaps Cohen explaining that he advised Trump of the benefits to recording it as a legal fee for tax and election law purposes, even if Cohen’s legal advice was wrong or questionable. But that didn’t happen. Whether the jury will credit Cohen’s testimony remains to be seen, but even if they do, Cohen gave the jury nothing to work with.

As much as Trump keeps pounding on the claim that he can’t get a fair trial in New York, Justice Juan Merchan has been exceptionally fair in his rulings, bending over backwards to give Trump the trial he deserves even if Trump is stunningly unappreciative. It may be that the judge is well aware of the issues arising from both the dubious legal theory and the complete absence of evidence in support of the requisite “another crime” issue. Will it be enough that the prosecution can argue theoretical crimes?

If so, that would likely be true in all falsifying business records cases, making the misdemeanor a nullity subject only to an imaginative prosecutor coming up with some putative other crime. Is that all the law requires to turn a misdemeanor into a felony?

Edit: An additional thought occurred to me. It’s unclear whether the prosecution will settle on the “another crime” in summation or the judge will charge the jury with only one of the three options. If not, then it’s quite possible that the jury could convict without agreement as to what the “another crime” is. In other words, it would not be a unanimous verdict as to all the elements of the charge if the jurors find the “another crime” to be different from one another.

13 thoughts on “Trump And The “Another Crime” Problem

  1. Chris Van Wagner

    Despite a law sheath from a bucolic upstate hovel, I am clueless as to whether NY criminal law requires the jury to be unanimous in any regard on that “other crime” element, other than “yeah he was covering up some unknown crime.” Can 12 jurors think it was 12 different crimes? Is there a pattern jury instruction – or a JI subject to modification – in which this element is spelled out in more detail than just the phrase “other crime”? I am baffled. You are the guru. Expliqué, SVP.

      1. Chris Van Wagner

        As always, you are correct. Can the defense get a unanimity instruction relating to the element that elevates this to a felony? Like one could in a sexual assault where more than one act is alleged? That’s a lot of “might be, could be” stuff. Hard to defend, yet an astute prosecutor would articulate the precise other crime, one would think. DA Bragg seems to have eschewed that idea.

        1. SHG Post author

          I don’t know if there’s an instruction, or even if one’s necessary. That’s how uncharted these waters are.

  2. Mark Brooks

    Dear Mr Greenfield,

    I posted the below comment to your article ” Is Fraud A First Amendment Right? ” on 4/May/2024.

    I can’t help hearing about the “Trump Hush Money Trial” as it predominates the news. Let me first state, that I would not know NY State Law, NY State Court Procedure, Rules of Evidence, etc, etc. That said, I think I am capable of understanding the various legal points being made in this matter.

    As I understand the charges brought against Trump, it is that Trump “with intent to defraud and intent to commit another crime and aid and conceal the commission thereof, made and caused a false entry in the business records of an enterprise” (repeated 34 times) for entries made for a) 11 Invoices from Cohen b) 12 General Ledger Entries c) 11 Checks and Stubs drawn in payment.

    However, the first set of 2 Invoices, 3 GL entries and 2 Checks and Stubs were for Donald J Trump Revocable Trust and then the second set of 9 Invoices, 9 GL Entries and 9 Checks and Stubs were for Donald J Trump. NONE of the records are for the Trump Organization itself and NONE of the money paid to Cohen came from the Trump Organization itself. All payments are either from a Revocable Trust Account or a Personal Account. The only connection to the Trump Organization seems to be that the records were “kept and maintained” at the Trump Organization offices.

    How are these records then deemed to be a “Business Enterprise” ? Does NY State Law treat a Revocable Trust as a “Business Enterprise” ? I would hope that NY State law doesn’t treat Personal records as a “Business Enterprise”, but would it ? Or does NY State law treat such records as being an actual part of the “Business Enterprise” because they are “kept and maintained” there ?

    None of the above should be construed that I am endorsing Trump. My interest comes from what appears to be case of malicious prosecution.

    Kind Regards
    Mark Brooks
    Malvern, St Elizabeth

    1. SHG Post author

      You should take a look at the pattern jury instructions, which speak to the definition of enterprise.

  3. B. McLeod

    We seem to have blundered into an era of law-stretching, where the prosecutors need only be given a target, and some law or another can be interpreted into a felony charge. If the court is on board and flags the “untested” theories past, then they only need the magic of the jury. Of course, they’re being told by everybody but the defense team that the charges are “legitimate,” and if the defendant is unpopular, conviction is a predictable result. None of this is how real laws are supposed to work, and we are in a system of prosecutors, not of laws.

  4. Mark Dwyer

    My understanding is that if a fact sufficient to satisfy an element of a crime is charged in a count then that fact must be proven. If more than one fact would suffice, but a particular fact is not named in the indictment, the jurors must individually be satisfied that one was proven, but need not agree on which one.

    Consider a felony murder charge. If the indictment says that the homicide was committed in the course of a robbery, the robbery must be proven. If the indictment says that the homicide was committed in the course of a robbery, burglary, or rape (any one of which would be sufficient), the jurors need not be unanimous as to which it was. In fact, the indictment would likely charge “robbery, burglary, and rape” — but still any one would suffice and unanimity would not be required.

    Similarly, if the defendant is charged with assault causing serious injury with a deadly weapon or dangerous instrument, and no particular instrument is named in the indictment, whether it was defendant’s lead pipe or the accomplice’s crowbar that caused the injury does not matter, and the jury need not unanimously determine which it was.

    1. SHG Post author

      I believe this is the correct analysis, even though it’s unsatisfying from a defense perspective. And we should never forget that the dangerous instrument can be the boot worn on the offending foot.

    2. Miles

      I understand your point, but I struggle with how a jury would know whether the crime that shall not be named was, in fact, a crime and whether the facts are sufficient to prove it. It’s a big black hole from which the jury is left to its own vibes. Not a very law-ish way to reach a verdict.

  5. John Patzakis

    I’m amazed by some criminal law attorneys who have forgotten the concept of step up offenses. This is no different than the step up of burglary vs. mere breaking and entering. Did the defendant break and enter in order to steal or to assault the resident? No need to prove which one specifically, just that there was further criminal intent.

    Any commentary that does not include this analysis lacks credibility. The author is either a Trumper or is trying to get clicks by offering a “contrarian’ position.

    1. Miles

      The problem with criminal defense lawyers is that they are constrained by law, knowledge and experience, which makes it hard to write such a clueless comment as yours. There still needs to be proof of intent to commit a crime, regardless of what that crime is alleged to be. The only serious question is whether the jury has to unanimously agree what that crime is. Try not to make people stupider.

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