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Indicting Trump Will Usher In America’s Banana-Republic Stage

Donald Trump
Image CreditGage Skidmore / Flickr / CC BY SA 2.0, cropped

The move to indict a former president for the first time in our country’s history will make political prosecutions the new norm in America.

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A Manhattan grand jury appears poised to indict Donald Trump, according to news reports and the former president himself. Here’s what you need to know to understand the chatter about the anticipated criminal charges against Trump—and why the move to indict a former president for the first time in our country’s history will make political prosecutions the new norm in America.

While only the grand jury and prosecutors know for certain what charges against Trump, if any, are being considered, the consensus is that Manhattan District Attorney Alvin L. Bragg, a Democrat, is pursuing a criminal case against Trump for allegedly falsifying business records, in violation of Sections 175.05 and 175.10 of the New York Penal Code.

Section 175.05 provides “a person is guilty of falsifying business records in the second degree when, with the intent to defraud, he makes or causes a false entry in the business records of an enterprise.” Falsifying business records in the second degree is a misdemeanor, subject to a two-year statute of limitations.

A violation of Section 175.10, however, is a felony, subject to a five-year statute of limitations. That section defines the offense of falsifying business records in the first degree and provides that if a person falsifies business records with the “intent to commit another crime or to aid or conceal the commission” of another crime, the offense is one in the first degree.

The underlying factual theory for charging the former president rests on Trump allegedly causing the Trump Organization to falsely report payments made to Michael Cohen in 2017 as “legal expenses,” when the money instead reimbursed (and then some) Cohen for the $130,000 payment he made to Stormy Daniels before the 2016 election to keep the pornography performer from publicly claiming she had sex with Trump a decade earlier. In total, the Trump Organization reported legal expenses of $420,000 paid to Cohen in 2017, at a monthly rate of $35,000. Cohen, however, had provided no legal services for the Trump Organization that year.

To bump what would be a misdemeanor under New York law to a felony, pundits are suggesting the D.A. will argue Trump caused the Trump Organization to falsify its business records to conceal the commission of one or more federal election crimes. The Manhattan prosecutor, however, might also advance the theory that Trump caused the Trump Organization to falsely report the payments with the intent of committing tax fraud.

Even before reaching the merits of the legal theories being bandied about to charge Trump criminally, a public suspicious of the Get-Trump attitude seen over the last seven years will notice the statute of limitations seems to bar Bragg’s prosecution of Trump. But Bragg has two ways to sidestep the two- and five-year statutory time limits.

First, if Bragg charges Trump with a felony, the longer five-year period applies. While more than five years have passed since the Trump Organization last recorded a “legal expense” to Cohen, New York’s former governor, Andrew Cuomo, by executive order extended the statute of limitations for one year (or thereabouts) due to Covid-19. That tolling would make a felony indictment against Trump timely.

Alternatively, because New York law provides that any time a defendant remains “continuously outside” of the state is excluded from the statutory period, an indictment against Trump would be timely. From late January 2017 on, Trump was “continuously outside” New York, first in D.C. and then in Florida, meaning the statute of limitations only ran those few times Trump was in New York. That isn’t even close to the two years necessary for the misdemeanor statute of limitations to expire, much less the five-year period applicable to felony offenses.

So, the statute of limitations won’t likely bar one or more falsifying business records counts. But what about the merits?

Cohen already pleaded guilty to federal charges related to his payments to Stormy Daniels. But to convict Trump on the anticipated state charges, the Manhattan prosecutor would need to establish beyond a reasonable doubt that Trump (1) caused the Trump Organization to falsify its business records (2) “with the intent to defraud.”

From public reporting, it appears Cohen is a star witness for the prosecution, likely testifying Trump directed him to make the payments to silence Daniels and promising reimbursement from the Trump Organization. Whether a paper trail supports Cohen’s testimony is unclear, but without one, it will be Cohen’s word—the word of a convicted felon—crucial to establish the crime.

Cohen’s testimony also already appears under fire. A “former legal advisor to Cohen,” Robert Costello, reportedly testified before the grand jury on Monday, “solely to undermine” Cohen’s credibility.

But prosecutors will need to prove more than that Trump caused the Trump Organization to falsify its business records. They will need to establish he also had the “intent to defraud.” Here, the defense can easily counter that Trump’s intent was to avoid embarrassment to his family caused by what he claims is a lie, rather than to “defraud” anyone.

Should prosecutors nonetheless prove their case, it is only a misdemeanor, unless they can further establish Trump intended “to commit another crime or to aid or conceal the commission” of another crime. Proving either will be even more challenging.

First, to establish Trump intended to conceal a violation of federal election law, the Manhattan D.A. would need to prove Trump had committed an election-law crime. While Cohen alleged paying off Daniels to advance Trump’s electoral chances, Trump has another justification, namely avoiding any embarrassment for himself and his family, that does not run afoul of federal election law.

Proving Trump intended to commit tax fraud would likely be a difficult case to prove as well, with prosecutors needing to establish Trump’s knowledge of the intricacies of the corporation’s tax filings to show he held the requisite intent.

This inside-the-law analysis reveals an exceedingly weak case, but that is only a fraction of what the public will care about. On top of the questionable charges, the general public will see a man hounded for seven years with false claims of Russia collusion and other supposed crimes. They will see a statute of limitations that on its face appears to have run. And they will see a local prosecutor pushing charges previously rejected by a federal U.S. attorney.

Then there was the public pressure placed on Bragg to indict Trump, best exemplified by the backlash he faced after he apparently backed off charging the former president for crimes supposedly connected to the Trump Organization’s finances. At the time, “two prosecutors quit his office,” and “one of the prosecutors, Mark Pomerantz, wrote a highly critical book that the media has celebrated.”

In short, the public will see a vindictive political prosecution of Trump.

Maybe there will be a time to charge a president or a former president with a crime, but the facts here do not support making that leap. While D.A. Bragg and those pushing for Trump’s indictment may seek cover behind the well-worn American proposition that “no one is above the law,” the corollary is equally important: Our political enemies are not targeted for prosecution.