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It's upgrade week here at The Status Kuo! Times are tough for many financially, and if you're on fixed income or disability, this newsletter and every bit of its content will always remain free. But that also means I'm hoping others who are better off can do their part! If you see an upgrade button below, consider becoming a paid subscriber today. The Conspiracy's The ThingHow a little-known NY election law code section could bring down the ex-president
I had what you might call a "legal epiphany" this morning as I was reading up on New York election law. I want to share it with you so that you can appreciate why I think the case against Trump for felony falsification of business records is stronger than many believe. As you likely understand by now, falsifying business records is normally a misdemeanor offense in the state of New York. But it becomes a felony when committed to further or cover up another crime. Ever since the indictment first dropped, legal observers have been wondering how to make sense of how the pieces all fit together. Was District Attorney Alvin Bragg really going to rely on federal election law as the felony "kicker" on his state law charges? That seemed dicey because it would involve applying federal law in a state court, and the appellate courts might not like that. But last Tuesday, Bragg's office surprised the world. During opening statements, prosecutors made the centerpiece of the felony "kicker" not federal election law, but a fairly obscure New York state law, found at Election Code Section 17-152. I should have immediately gone to check what that law actually says, because when I did this morning, a lightbulb went off. In this piece I'm going to take you through the basic law underlying the case as a refresher. Then I'll walk through why I believe the evidence will take us around all four bases to allow prosecutors to score a legal home run, if you'll pardon the baseball analogy. The pitch: Falsifying business records is a felony if done to conceal a crime It's always useful to go back periodically to the text of the statute that a defendant is charged with violating. For Trump, it is New York Penal Law Section 175.10, falsifying business records in the first degree. Here's what the statute says specifically. Read it carefully, like a jury would, understanding that "falsifying business records in the second degree" just means a misdemeanor:
Here, the jury will be asked first whether Trump intended to falsify business records (the misdemeanor), and then whether such intent was to aid or conceal another crime (the felony kicker). First base: Misdemeanor falsification of business records With that pitch, we can hit the legal ball and begin to travel around our bases. Up first is the question of whether there was falsification of business records to begin with. The prosecution most likely will be able to prove beyond a reasonable doubt that Trump knew that the payments to his fixer, Michael Cohen, were not legal services, as recorded in the ledgers, but rather to reimburse him for the payment he made to Stormy Daniels and make it look legit. Cohen will testify about this, and there may be others we're not aware of. Importantly, the paper trail and the math will support this as well, and most experts believe that it's not seriously in doubt that the books were cooked here. Such proof gets the prosecution to first base. So now, let's look more closely at the other crime which would form the felony kicker. There are two basic parts to it: that there really was a conspiracy, and that it proceeded by illegal means. "Catch and Kill" was a conspiracy It's unsurprising that, as it would be in any state, it is be illegal in New York to conspire to promote someone's election by breaking the law. We want integrity in our elections, and states regularly enact laws that punish candidates who act in violation of the public's trust. Here's what the applicable New York statute, Election Code Section 17-152, Conspiracy to promote or prevent election, says:
If you're wondering, the answer is yes: If you falsify business records to further or conceal another crime, that falsification becomes a felony, even if the other crime is just a misdemeanor. I don't know why it's just a misdemeanor, honestly. It really should be a felony given what we now know could happen. "Conspire" is a key word here. A criminal conspiracy, as we've learned in the other Trump cases, is an agreement by two or more persons to commit some illegal act, with at least one overt act taken in furtherance of the plan. That's why an agreement to rob a bank becomes illegal the minute someone also goes and buys ski masks to hide the conspirators' identities. Officials don't have to wait until the heist to make arrests. The need to lay out the underlying conspiracy helps explain why the prosecution's first witness was David Pecker, the publisher of the National Enquirer. At first it might seem unusual to bring Pecker in. After all, he did not involve himself, at least directly, in the disguising of payments to Daniels. That was strictly between Trump and Cohen, using the Trump Organization as the conduit for the funds. Instead, and seen broadly, Pecker established that there was an agreement among himself, Trump and Cohen to pay off anyone who might go public with a scandal about then-candidate Trump. This was called "catch and kill," and its goal was to get Trump elected. The prosecution cites three instances in the indictment where the co-conspirators took action that advanced the conspiracy: with Karen McDougal to hide Trump's year-long affair with her; with his doorman Dino Sajudin to bury a potential but ultimately false story about a child sired by Trump out of wedlock; and with Stormy Daniels to cover up Trump's sexual escapades with a porn star. Notably, the defense's position isn't that the payoffs never happened, or that Trump didn't work with Pecker to bury them. The defense's position is that this is perfectly legal and done by celebrities all the time to avoid embarrassment. But avoiding personal embarrassment was not what the conspiracy was about. It was in place specifically to help Trump's campaign. There is plenty of uncontroverted evidence that Trump and Pecker saw the scheme as crucial to the election. This includes a fateful August 2015 meeting where Pecker agreed to be the "eyes and ears" of the Trump Campaign and flag negative stories to Cohen. An existing conspiracy to help get Trump elected satisfies an element of the election law statute, and in our legal baseball game, it gets us to second base. The conspiracy deployed unlawful means If the jury agrees that there was a conspiracy to help Trump get elected by deploying "catch and kill," the next question is whether it also used "unlawful means" to accomplish that end. On this, the prosecution already has the cards. We know the conspiracy used unlawful means because the payments made to McDougal and Daniels amounted to undisclosed campaign contributions in violation of federal campaign limits. The other parties to the conspiracy, Cohen and Pecker, have already admitted to this. Pecker's company, American Media, Inc. (AMI) admitted to the violation as part of its non-prosecution agreement with federal authorities. You can read the admitted facts around AMI's payments to McDougal in the attachment to the agreement, found here. And Cohen went to jail in part for violating federal election law. He pleaded guilty to five counts in total, including one count of violating federal election law for paying off Stormy Daniels personally, even though he ultimately got reimbursed for it. The existence of a conspiracy (catch and kill) to help get Trump elected using unlawful means gets us to third base. Trump helped falsify documents with the intent to aid or conceal the conspiracy Now that all the parts are laid out, the prosecution now has to make the final connection. To review the bases we have covered:
The game winning part is next at hand. Did Trump falsify business records with the intent "to aid or conceal the commission" of another crime, in this case NY Election Law 17-152? At first glance, this might seem more complicated than it is. Trump is accused of falsifying business records in order to hide or further another crime—which itself requires the use of "unlawful" means. So, wait, Trump used unlawful means to further another crime that itself used unlawful means? Isn't that a "crime within a crime" situation? As far as some legal experts interviewed by Business Insider are aware, this particular Elections Code section has never been charged before. So there's no case law on it to help us sort out its scope. But that doesn't matter here, because Trump actually isn't being charged under this election statute. Instead, he's being charged with falsifying business records. The other crime, the kicker, was already admitted to by Pecker and Cohen. That means prosecutors don't have to prove that Trump also conspired to get elected by breaking the law. They only have to show that Trump falsified business records with the intent to aid or hide the existing criminal conspiracy. People don't falsify business records for no reason, and juries understand that. Here, the evidence shows that the payments to Stormy Daniels were disguised precisely because they were part of a larger criminal conspiracy, 'fessed up to by Pecker and Cohen, to help Trump win the election. Trump's lawyers will have to show that the whole cover-up was somehow unrelated, which could earn a serious eye roll from the jury. After all, such an assertion flies in the face of the testimony from Pecker, expected testimony from Cohen, and importantly the damning electronic trail of evidence around catch and kill. There's even a text exchange between Pecker and his Editor in Chief, Dylan Howard, that confirms this. As the Pulitzer prize winning team responsible for the reporting behind their book The Fixers reported on the Daniels payout:
It will be hard to argue, in the face of evidence like this supported by Pecker, that the Daniels matter and payoff weren't part of that larger, illegal 2016 election conspiracy. If prosecutors connect those dots and show ultimately that Trump falsified documents to aid or hide catch and kill, that's the whole ball game: a home run for Alvin Bragg. In honor of upgrade week, will you consider a paid subscription today? Paid supporters allow me to devote many hours a day, each day, to this newsletter. Thank you for considering |
― The Lincoln Project
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