There is no better illustration of the orgy of white-collar criminal excess that colors the last forty years of Reaganomics and elite enrichment than Donald J. Trump. He is the poster boy (perhaps more accurately the “WANTED!” poster boy) for white-collar recidivism, failing up from bankruptcy to bankruptcy, from fraud to fraud, usually using other people’s money, almost always stealing it. Ironically, he may have unwittingly uttered the eventual epitaph for this criminal era when he stated that, when you’re rich and famous, “when you’re a star, they let you do it. You can do anything”.
Manhattan DA Alvin Bragg has indicted Trump of 34 felony counts of falsification of business records in furtherance of another crime. The 34 counts involve the eleven separate payments to Michael Cohen for paying off Stormy Daniels. For each of those payments, there were three purported falsification of business record felonies – one for the invoice, one for the general ledger entry, and one for the check issued to Cohen. One payment apparently had two general ledger entries bringing the total to 34. Under New York State law, Bragg is not yet required to detail the other crime(s) that turns these falsifications of business records, which are usually a misdemeanor, into a felony, but, based on the Statement of Facts included in the indictment and the statement from Bragg himself, there are three possibilities. One is violation of federal election law, the other a violation of state election law, and the third is tax fraud.
As the Statement of Facts pretty clearly lays out, the payment to Daniels was part of a pattern of suppressing Trump’s affairs designed to ensure his presidential campaign was not harmed. In fact, Michael Cohen was already convicted of campaign finance violations with respect to the Daniels’ payment, with Trump named as his co-conspirator who only remained unindicted because of made-up the DOJ rule that a sitting president could not be indicted. The tax fraud occurred when Trump decided to repay Cohen for paying Daniels by pretending that the payments to Cohen were for legal services. In addition, because Cohen would have to pay taxes on those payments as income, Trump agreed to pay him twice the amount paid to Daniels plus a $50,000 bonus. Those payments were listed as legal expenses by Trump.
Obviously, the reaction from Republicans to the Bragg indictment was that it was just another witch hunt targeting their beloved Trump, this time orchestrated by a foreign Jew. What was more interesting is how disturbed the reactionary centrists and even some liberal commentators were by the indictment. Jonathan Chait reflected the view that Trump should not be held accountable because simply paying off his mistress isn’t a crime. He writes, “Trump is in this position because he maneuvered to keep quiet a tawdry story about his infidelity. That is not a crime. The alleged crime is disguising the source of the payment and, thereby, evading campaign-finance law. But it is not easy for a candidate to pay off a mistress while complying with campaign-finance laws. Trump is in a position where an activity he could have done legally became a crime simply because he was a candidate for office. The entire scheme follows from his effort to cover up an alleged affair. That is the definition of being below, not above, the law”. The ludicrousness of this argument should be readily apparent, namely that campaign finance laws of course only apply under the special circumstances of being involved in an election and complying with them requires a little more rigor than if you were just a normal citizen. Moreover, Michael Cohen has already served jail time at least in part for this campaign finance violation that Chait believes should not be a crime.
A similar approach came from usually liberal legal pundit Ian Millhiser, who at least grounds his objections in legal theory. His argument is that the potential campaign violation for which Trump was named an unindicted co-conspirator and on which Bragg is basing his “furtherance of another crime” theory is a federal crime and it is unclear whether New York State law allows such an approach. Millhiser writes, “The felony statute requires Bragg to prove that Trump falsified records to cover up a crime. Bragg has evidence that Trump acted to cover up a federal crime, but it is not clear that Bragg is allowed to point to a federal crime in order to charge Trump under the New York state law”. Bragg has also indicated there may be a state election law violation for conspiring to promote a candidacy by unlawful means but that also may be problematic because Trump was running for federal office which would not be covered by state law.
On the other hand, using tax fraud as the basis to upgrade those falsification of records misdemeanors seems to be on far firmer legal ground, as even planning to provide false tax statements to the state is a crime in New York. As Ryan Goodman notes, “The reference to false tax filings may save the case from legal challenges that may arise if the felony charges are predicated only on federal and state election laws”. In addition, a number of former prosecutors who have practiced in New York believe that this is a bog-standard case whose equivalent has been brought many times. Similarly, Quinta Jurecic writes, “[T]here seems to be a split between folks who have practiced NY crim law (who generally think the indictment is stronger) & former fed prosecutors/law profs (who think it is weaker)”.
The general unease about Bragg’s case seems to revolve around the idea that paying hush money to a porn star to influence an election and engaging in campaign finance violations are issues that are simply just too trivial on which to base the prosecution of a former president. No one really cares about Trump’s affairs and campaign finance violations. (Just to highlight how weak those campaign finance laws actually are, Trump has now formally blown off the FEC filing deadline for disclosing his personal finances now that he is an announced candidate for the 2024 election, even after being given three extensions. The punishment for simply ignoring this requirement is a whopping $200 fine. [Update: the forms were finally filed on April 14th.])
But Trump’s efforts to influence the election by obtaining Daniels’ silence were hardly trivial. As Quinta Jurecic again notes, “Trump did not just purchase silence ahead of the 2016 vote. He worked while he was in office to complete the cover-up…[T]he two [Cohen and Trump] finalized the arrangements for repayment in a February 2017 meeting held in the Oval Office itself…This is, by now, a familiar portrait: a candidate, and then a president, obsessed with gaining and holding on to power at all costs, without any care for or comprehension of his obligations to the public, nor any commitment to play by the rules that bind everyone else”.
Indeed, falsifying business records also seems rather trivial when they are compared to the litany of other Trump crimes – alleged rape, tax and insurance fraud, foundation fraud, Trump University fraud, the multiple obstructions of justice that Mueller documented, the stolen classified documents and the refusal to obey the subpoena to return them, the attempted election fraud in multiple states, the fraudulent election challenge fundraising, and, worst of all, the incitement of the 1/6 coup attempt. Bragg’s detractors would prefer that the “important” cases – Fani Willis’ case of election fraud in Georgia or the many threads of Jack Smith’s special counsel case – be the basis for indicting a former president for the first time. Legal scholar Rick Hasen would like to “see the fire aimed where it belongs: at Trump’s attempts to undermine American democracy and interfere with the peaceful transition of power during the 2020 election.” The basic complaint is not that Bragg doesn’t have a case, it’s that the case doesn’t match the level of crime Trump engaged in.
That complaint seems like a bit of weak tea, like objecting to going after Al Capone for mere tax evasion because he clearly was a murderer and extortionist. Interestingly, even Hasen admits he believes Trump did commit federal election crimes with regard to the Daniels’ payments but that interference from then Attorney General Bill Barr prevented the case from being made. It’s not Bragg’s fault that Trump has been able to buy off prosecutors for years or that Merrick Garland turned out to be totally feckless or that Jack Smith has apparently at least temporarily delayed Fani Willis’ investigation or that Smith is apparently expanding his probe into fraudulent fundraising off the Big Lie, perhaps indicating indictments are still a ways away. For all the talk about “no one is above the law” that we’ve heard incessantly for the last seven or eight years, Bragg is at least acting on that principle with a case he believes he can win.
A corollary of this argument that this is not the “right” case to bring against a former president is that it will be perceived as a criminalization of politics, resulting in tit-for-tat political prosecutions, and that the up-charging of misdemeanors to felonies is prosecutorial overreach. Those talking about the criminalization of politics and resulting retribution seem to have memory-holed Bill and Hillary Clinton’s entire political lives, from Whitewater to the Lewinsky impeachment to Benghazi! to “Lock her up!”; or they might want to consider those essentially innocent victims of DeSantis’ election fraud police force or Crystal Mason; or they might want to read up on the political prosecution and persecution of Paul Minor. To think that Republicans would hesitate to try and criminalize the politics of a Democrat but for this Bragg indictment is a willful misunderstanding of the modern Republican party. In addition, I hate to break it to these people, but up-charging to felonies has been the de facto standard for poor and minority defendants ever since we began the war on drugs 50 years ago. It’s funny how prosecutorial overreach suddenly becomes a problem, and everyone starts sounding like a progressive reform-minded DA, when a rich and famous person is a defendant.
The aforementioned Chait actually points to James Comey – yes! James Comey! – as a paragon of judicial restraint that should be the example for Bragg. He writes, “When James Comey decided not to prosecute Hillary Clinton for her use of a private email account, he did not deny that she’d violated the law. Nor was he saying she was above the law. He was correctly acknowledging the role played by discretion and proportion in weighing the step of bringing legal charges”. If this is the new prosecutorial standard, declaring someone guilty of violating the law but then refusing to bring charges so that they cannot actually defend themselves, then we really are in a new fascist hell. For whatever it’s worth, Trump will at least eventually have his day in court and a jury will decide his fate.
As many other countries have illustrated, charging a former president is not some apocalyptic moment, but rather the ordinary workings of a functioning legal and judicial system. Existing office holders and former politicians are charged all the time in this country with little fanfare. I live in a city where the mayor was sent to prison for corruption 20 years ago, served his time, and has now won two new full terms as mayor. That indicting a former president is not some radical departure from out legal and political norms has been borne out by the reaction in the days and weeks since the indictment. People largely accept that the case is valid and understand that the charges are serious. In fact, the relative equanimity of the reaction to the indictment from the general populace, (while admittedly perhaps indicative of their general lack of political engagement), stands in stark contrast to the overreactions of some of the purveyors of elite discourse who are shocked and dismayed to see one of their own held to the same standard applied to most other defendants, despite their years of protestations that no one is above the law.
Finally, the detractors of Bragg’s indictment worry that an acquittal will make a martyr out of Trump and boost his chances in 2024. This, too, is a red herring. The chances that this case goes to trial before the 2024 election are virtually nil. That would also be true of any of the “right” cases Bragg’s detractors would have wanted to be brought first. Trump’s constant legal strategy has always been to delay and attack, and he will successfully use that tactic again. Nor has Trump seen any extraordinary bounce in support after the indictment either.
At this point it seems clear that a twice-impeached, at least once-indicted if not more, narcissistic congenital liar, and wannabe dictator will be the Republican nominee for president in 2024. He will almost assuredly be facing more than one trial in the post-election period. Rather than being a disastrous turning point in America’s political and legal culture, the Bragg indictment will seem to be another minor data point in the 2024 election. If that is indeed the result, then, regardless of the outcome of the specific legal case, Bragg’s decision to indict Trump will be vindicated.