Toeing The Trump Line

Like many of us who found the legal theory upon which the New York County “hush money” indictment of Trump problematic, former prosecutor turned prawf Randall Eliason had his doubts.

The New York courts appear to be mixed on this question and there is no definitive ruling from the state’s highest court. If Bragg’s theory is that the false entries were part of a scheme to defraud an agency such as the New York State Board of Elections, then a court might apply this broader definition. If his theory is that it was a scheme to deceive the voters, I think a court is likely to hold that does not constitute fraud. (Part of the problem, as I discuss below, is that we don’t know exactly what Bragg’s legal theory is.)

Now that Trump has been convicted, Eliason’s questions haven’t been answered, but his doubts have disappeared.

I was among the commentators who criticized the case. It was old, the so-called zombie case that had been kicking around for years. It appeared to rest on several untested and controversial legal theories. It seemed like a relatively trivial bookkeeping charge, unworthy of a prosecution of a former president.

But I have to hand it to the Manhattan prosecutors. Over the course of this trial, they convinced me — as they clearly and overwhelmingly convinced the jury. There will be an appeal, of course, and Mr. Trump may have some persuasive legal arguments.

But the jury’s quick decision reinforces the district attorney’s view that this was a righteous prosecution and about much more than mere accounting entries.

That the jury convicted has absolutely no bearing on the question of whether the legal theory upon which the enhancement of the case from misdemeanor to felony was sound. That the evidence was strong and more than sufficient that Trump falsified business records is one thing, but the conclusion that it was done with “intent to commit another crime or to aid or conceal the commission thereof” is quite another.

That the state of New York law does not require the jury to be unanimous on what the “another crime” must be is one issue. Much as I think the law is wrong and deprives the defense of notice of what the prosecution is alleging such that he can prepare an adequate defense, I recognize that it is the current state of the law. Justice Juan Merchan has no authority to rule or charge anything other than the law of New York as it currently stands.

But that’s merely the first level of issues with the sufficiently of evidence to prove what the defendant intended. It’s not about a vibe or a feeling that it was nefarious, but whether it was done with the intent to commit a crime. Crimes have elements. What are the elements. What is the evidence that proved those elements, or at least the intent if the “another crime” was merely intended but not committed. It’s not enough to feel criminalish.

And yet, the strong evidence proffered in support of the primary charge, falsifying business records, does not suffice to prove the enhancement of “another crime.” Was it proven? Was the evidence sufficient. That’s subsumed in the gushing praise for the conviction, the jury’s fortitude and the prosecution’s acumen.

The problem, however, is that going all in for Trump’s conviction, or against Trump’s conviction, has become a test of tribal loyalty. If you persist in raising questions about the case, you must be a Trumpkin because loyal Trump haters cheer the conviction and never utter a word that provides aid and comfort to the enemy, the Trumpers who call the case rigged and the judge corrupt.

Impressively, CNN legal analyst Elie Honig refused to sacrifice his integrity or credibility to be a good team player. Despite his being as disgusted by Trump as any sane person, he nonetheless held firm to the same legal issues after the conviction as before.

So, to inflate the charges up to the lowest-level felony (Class E, on a scale of Class A through E) — and to electroshock them back to life within the longer felony statute of limitations — the DA alleged that the falsification of business records was committed “with intent to commit another crime.” Here, according to prosecutors, the “another crime” is a New York State election-law violation, which in turn incorporates three separate “unlawful means”: federal campaign crimes, tax crimes, and falsification of still more documents. Inexcusably, the DA refused to specify what those unlawful means actually were — and the judge declined to force them to pony up — until right before closing arguments. So much for the constitutional obligation to provide notice to the defendant of the accusations against him in advance of trial. (This, folks, is what indictments are for.)

In these key respects, the charges against Trump aren’t just unusual. They’re bespoke, seemingly crafted individually for the former president and nobody else.

I can’t speak to the depth of Elie’s personal feelings toward Trump. I despise the vulgar, deceitful, dishonest, narcissistic ignoramus, as I’ve made abundantly clear over the years. But my feelings toward him have nothing to do with my thoughts about the legal issues in the case. I can defend murderers while hating murder. Even more importantly, if the law can be twisted to get one defendant, it can be twisted to get others. That’s how the law goes terribly wrong.

This is hardly an absolution of Trump, whose falsification of business records is emblematic of  Trump’s amorality, where there is neither shame of wrongdoing nor doubt about doing whatever best serves his interests regardless of harm or damage done others. And that goes for his liaison with a porn star while his wife was caring for their newborn son, also emblematic of his shamelessness. But the law matters more, at least to me and Elie Honig. For a while, it mattered to Eliason, too, but no doubt this will put him back on the invitation list for faculty teas.

12 thoughts on “Toeing The Trump Line

  1. Ray

    I have to hand it to the Manhattan prosecutors, too. Their actions in prosecuting Trump on these legally dubious claims have resulted in his campaign receiving $35 million dollars in additional donations, an apparent jump in the polls, and for some have cloaked Trump in the garb of a martyr. Well done Mr. Bragg.
    You have to defeat this most unsuitable of persons for the Presidency on the issues, and on his lack of character. Invoking the mechanism of criminal process on these kinds of charges may say more about the lack of character of those involved in this process. Same goes for that travesty in Georgia. (I think the records case in Florida has more teeth, not so sure about the DC insurrection case despite Trump’s despicable failure to prevent same).
    By the way, how much did this cost the people of New York? Wouldn’t that money have been better spent on the schools?

  2. The Infamous Oregon Lawhobbit

    THANK YOU, Mr. G.!!!!

    I keep getting asked about this and I try to explain to folks that “my license says ‘Oregon,’ not ‘New York,'” and as such it’s iffy for me to comment on New York legal issues. I have enough trouble keeping track of Oregon ones (such as our lack of public defense counsel and the growing buildup of unrepresented defendants behind bars).

    Now, however, I can point to what an Actual New York Lawyer (criminal defense, no less – a tax lawyer might be a bit problematic for credibility) has to say on the topic.

  3. BlueThing

    I wish that Democrat prosecutors would take prosecuting Trump seriously, or not do it at all.

    I’m afraid that cases like this and Georgia will make Trump a martyr and get him re-elected.

    I never thought I’d say this, but I support Trump (in his effort to get this case overturned).

    The Democrats have also convinced me that they’ll abuse the legal system to go after an opposing candidate, and that leaves me seeing both parties as corrupt and authoritarian. I guess it’s fortunate that I live in a one party state and can vote my conscience rather than for the lesser weevil.

  4. Richard Parker

    Chilling effect on big donors thinking of donating money to the Orange Muffin. Your business records will be fine toothed.

    This is not exactly representative government.

    1. Luke Gardner

      ???? Legally, one can only donate personally. Where do business records come in?

  5. phv3773

    Clarification from Twitter (as was).

    Adam Klasfeld post:
    The jury instructions make clear that the intent to commit another crime *was* a state law — specifically New York election law.

    Brad Smith post:
    Let’s take a stab… Falsifying business records under NY law is a misdemeanor, unless done to hide a crime. Bragg says that crime was a violation of the Federal Election Campaign Act (FECA), or of a NY statute making it illegal to influence an election by “unlawful” means.

    You’re welcome.

    1. Kevin P. Neal

      Didn’t our host make clear (by quotation) that this should have been stated much, much earlier? I’m not a lawyer, but I’m pretty sure that jury instructions are presented to the jury at the end of the trial and not “in advance of the trial”.

      “So much for the constitutional obligation to provide notice to the defendant of the accusations against him in advance of trial. (This, folks, is what indictments are for.)”

      You’re welcome.

  6. J.B Corn

    Nothing like history to charge the batters over early coffee…

    Good thing you don’t live in Cleveland.


    [Ed. Note: This would have been trashed for a variety of reasons, not the least of which is violating the rule against links. But it’s Dylan, so.]

  7. Chaswjd

    On appellate review for sufficiency of the evidence for the additional crime, does the state have to show sufficient evidence for alll additional crimes (since we don’t know if one juror didn’t use a particular crime for conviction) or is it enough to have sufficient evidence for one of the additional crimes?

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