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Alvin Bragg’s Odd “Hush Money” (Except Not) 34-Felony Case Against Trump Begins

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By Lambert Strether of Corrente.

Patient readers, matters occurent prevented me from delivering the encyclopedic post on The People of The State of New York -against- Donald J. Trump, Defendant, that I had researched for, though I suppose I’ll get another bite at the Big Rotten Apple soon enough. Monday was the first day of Trump’s trial in Manhattan, which began amongst small crowds. The session was devoted to jury selection, although none were actually selected (“more than half of the 96 jurors called Monday said they couldn’t be ‘fair and impartial’ when it comes to the former president“). For me, the most dramatic event was Trump falling asleep, albeit briefly, which could actually be strategically brilliant: Trump should talk to voters — and do his all-important A/B testing! — via Zoom at night, and then sleep in court during the day! He could bring a pillow from that pillow guy. That would also keep him out of trouble! (Also, Trump said Judge Merchan denied his request to attend his son’s graduation, when what Merchan actually did was postpone a decision. Judge Merchan also said Trump would have to be in court next week, meaning he won’t be present when the Supreme Court hears arguments about his claims to Presidential immunity.)

So this post will of necessity be short and simple: I will examine at the odd structure of Bragg’s case. There’s a lot more to be said, but that is all I have time for today. Oh, and my routine caveat: IANAL. I hope any real lawyers will step in and correct any errors, expand on this analysis, share their experience, strength, and hope….. Oh. Sorry. Wrong meeting.

First, the structure. From the Manhattan District Attorney’s press release, “District Attorney Bragg Announces 34-Count Felony Indictment of Former President Donald J. Trump“:

Manhattan District Attorney Alvin L. Bragg, Jr. today announced the indictment of DONALD J. TRUMP, 76, for falsifying New York business records in order to conceal damaging information and unlawful activity from American voters before and after the 2016 election. During the election, TRUMP and others employed a “catch and kill” scheme to identify, purchase, and bury negative information about him and boost his electoral prospects. TRUMP then went to great lengths to hide this conduct, causing dozens of false entries in business records to conceal criminal activity, including attempts to violate state and federal election laws.

The difficulty that Bragg’s press release glosses over is that the “catch and kill” scheme is not illegal. Falsifying business records is illegal, but it’s a misdemeanor except when committed in furtherance of another crime, when it becomes a felony (or, in this case, 34 felonies; Bragg pumped up the numbers, just as Smith did with his sekrit documents). So what is this other crime? Amazingly, Bragg does not say.[1] IANAL, but to my simple mind, “odd” is a fair word for this approach.

Bragg’s filing, says the Press Release, comprises two documents: The Indictment, and the Statement of Facts.

The 34 counts of the Indictment all look alike. Here is the 34th:

As you can see, the count is a felony (“First Degree”) under Penal Law §175.10. Again, what makes it a felony? That the false entry was made with the intent to commit “another crime.” But that crime is mentioned nowhere in the Indictment.

Now let’s turn to the Statement of Facts. First, let me quote footnote 1 (of 1):

So we have an Indictment whose degree (first/felony or second/misdemeanor) depends on unspecified “other crimes,” and we have a Statement of Facts that doesn’t contain all the facts relevant to the charges in the Indictment. Wouldn’t it have been simpler for Bragg to hand the court a ream of blank paper and say “We’ll fill this in as we go along?” Again, IANAL, but I think “odd” is a fair word.

The rest of the Statement of Facts is a laudably painstaking account of document flow within the Trump organization, and as a former documents maven I cannot forbear from quoting:

The checks and stubs bearing the false statements were stapled to the invoices also bearing false statements. The Defendant signed each of the checks personally and had them sent back to the Trump Organization in New York County. There, the checks, the stubs, and the invoices were scanned and maintained in the Trump Organization’s data system before the checks themselves were detached and mailed to Lawyer A for payment.

Sterling stuff, but the key aspect of the Statement of Facts occurs in the first two paragraphs (though oft-repeated):

“Criminal conduct” that breaks what law? Unstated in the Statement of Facts, and uncharged in the Indictment. The same is true for “unlawful scheme,” “violated election laws”, and “mischaracterized for tax purposes.” How are these “facts” as opposed to assertions or unsupported claims? Trump must either have been convicted of these crimes already, or be charged with them now. If the former, the case should be cited. If the latter, the charge should appear in the Indictment. Neither is true. Isn’t that odd?

Naturally, the Trump Defense team asked District Attorney Bragg about all this, in particular the “other crime”:

Here in relevant part is Bragg’s response, which I have helpfully annotated:

[1] Will Franz Kafka please pick up the white courtesy phone?

[2] Oh, so there’s no theory of the case in the Indictment or the Statement of Facts?

[3] No. Just no. You can’t refer the Defense to a fact to prove a charge. That’s your job as prosecutor.

Law360’s Frank Runyeon summarized what these “other crimes” “may” be in plain English:

There’s a lot of discussion of the merits of charging Trump with these hypothetical “other crimes,” and I’m sure I’ll have plenty to say about Trump’s putative other crimes when Bragg reveals what the other crimes actually are. For now, my layperson’s view is that having a state enforce a Federal Law (in this case, the Federal Election Campaign Act) is nuts. Do we want states enforcing, say, the Espionage Act? Really? Presumably there’s a dividing line of some sort. Where?

Finally, here’s a handy diagram that shows the structure of Bragg’s case, via Asha Rangappa (former FBI Special Agent and editor of Just Security). I have added some helpful annotations:

[1] The top half of the diagram is the business records case, showing the document flows described in the Statement of Facts.

[2] The bottom half of the diagram is the “other crimes” that convert what would be misdemeanors into felonies. (Rangappa amusingly labels this process, marked in blue, a “felony bump-up.”) You will observe that to reduce the felonies down to misdemeanors, the Trump defense team must delink the records charges above the red line from the “other crimes” below. This will be more manageable, of course, when Bragg reveals what they are.

[3] The highlighted text implies that the “other crime” could be an “(uncharged) conspiracy.” That seems odd, too, not to say Kafka-esque. The “other crime” can be a crime that Trump was only convicted of on some alternate timeline? IANAL, so can this possibly be true?

* * *

It will be interesting to see what the Indictment and the Facts actually are, when Bragg chooses to reveal them. Again, I hope any real lawyers will jump in with their views; I am, after all, merely a humble blogger, and what I view as nuts may be perfectly normal and routine.

NOTES

[1] I have not seen anyone assert that there’s anything wrong with Bragg’s procedure here, but how is the defense supposed to prepare to defend their client against the crime that transforms misdemeanors into felonies if they are not told what that crime is?

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About Lambert Strether

Readers, I have had a correspondent characterize my views as realistic cynical. Let me briefly explain them. I believe in universal programs that provide concrete material benefits, especially to the working class. Medicare for All is the prime example, but tuition-free college and a Post Office Bank also fall under this heading. So do a Jobs Guarantee and a Debt Jubilee. Clearly, neither liberal Democrats nor conservative Republicans can deliver on such programs, because the two are different flavors of neoliberalism (“Because markets”). I don’t much care about the “ism” that delivers the benefits, although whichever one does have to put common humanity first, as opposed to markets. Could be a second FDR saving capitalism, democratic socialism leashing and collaring it, or communism razing it. I don’t much care, as long as the benefits are delivered. To me, the key issue — and this is why Medicare for All is always first with me — is the tens of thousands of excess “deaths from despair,” as described by the Case-Deaton study, and other recent studies. That enormous body count makes Medicare for All, at the very least, a moral and strategic imperative. And that level of suffering and organic damage makes the concerns of identity politics — even the worthy fight to help the refugees Bush, Obama, and Clinton’s wars created — bright shiny objects by comparison. Hence my frustration with the news flow — currently in my view the swirling intersection of two, separate Shock Doctrine campaigns, one by the Administration, and the other by out-of-power liberals and their allies in the State and in the press — a news flow that constantly forces me to focus on matters that I regard as of secondary importance to the excess deaths. What kind of political economy is it that halts or even reverses the increases in life expectancy that civilized societies have achieved? I am also very hopeful that the continuing destruction of both party establishments will open the space for voices supporting programs similar to those I have listed; let’s call such voices “the left.” Volatility creates opportunity, especially if the Democrat establishment, which puts markets first and opposes all such programs, isn’t allowed to get back into the saddle. Eyes on the prize! I love the tactical level, and secretly love even the horse race, since I’ve been blogging about it daily for fourteen years, but everything I write has this perspective at the back of it.

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32 comments

  1. Rip Van Winkle

    I’m going with MacGregor and Holter on this, less than 50% probability of an actual presidential election in November.

  2. griffen

    Not a lawyer, but Trump is just guilty of well something they are for sure and certainly they can and will prove his guilt in the above trial. Never mind the perjurer Cohen forming a role as a witness in this trial for the DA / prosecution. Hell he’s honest Abe and all reformed.

    I don’t see Trump via any rose-colored glasses or with legitimate sympathy. He does things to himself, my conclusion being that is who he’s always been. Just didn’t matter nearly as much before he entered politics and eviscerated a full slate of Republican candidates for President in 2015 – 2016.

    1. Larry Motuz

      Cohen perjured himself for Donald Trump as part of DT’s cover-up.

      To call him a perjurer without reference to what the perjury was about or how it came about as DT’s attorney is highly misleading.

  3. Larry

    The key question for me is why was Cohen convicted and sentenced to 3 years in jail for this crime and Trump escaped.

    If Cohen was guilty and he was doing what Trump wanted then Trump should be in jail as well.

      1. lambert strether

        If Trump’s alleged records falsifications violated state tax laws, well and good. But the concept of states prosecuting for crimes committed at the Federal level gives me the creeps. As should, to anyone, Bragg’s concept that the “other crime” need not be any particular crime. Ripe for abuse.

        1. marym

          Except the stolen documents case and the 2 cases for trying to be president after losing the election I’m not following his cases closely enough even to have an ianal opinion on any of them. I was just commenting on what was in the media as the reason he wasn’t prosecuted when Cohen was.

          1. Lambert Strether Post author

            Well, this is the one that reached trial. What I’m saying if — if I’m correct — that the “Hush Money” framing is really destructive and obscures the issues at stake.

  4. Michael Fiorillo

    I know, let’s get Hitler on a jay-walking charge, and as an opening salvo in a wider Lawfare campaign, no less… it’s golden, baby!

  5. Feral Finster

    If all they have on Trump is that someone ripped off the mattress tags at a Trump-branded hotel, then this will be spun into the most heinous crime since the Foundation of the Republic, nay, since Judas betrayed Jesus or even since Eve bit the apple.

    1. Reply

      It will be fun to enjoy the posturing and fulminating, interspersed with the odd qualified disclaimers.
      Maybe even an over/under on which reporters and others will still be employed in a year.
      The world obviously needs some quick book deals! /s

    2. Piotr Berman

      I guess Adam and Eve were told that apple tree and apples on that tree were private, so we may have the oldest case of petty theft, but Judas did not commit a crime: notifying authorities is typically legal.

    3. MFB

      Eve would not have bitten the apple if Trump had not sexually harassed her and then paid her to keep quiet about it.

  6. aj

    Michael Cohen got 3 years in jail for the following crimes (sourced from Wikipedia):

    5 counts of tax evasion
    1 count of making false statements to a financial institution
    1 count of willfully causing an unlawful corporate contribution
    1 count of making an excessive campaign contribution at the request of a candidate or campaign
    1 count of making false statements to a congressional committee

    Considering that most, if not all, of these were at the behest of Trump (allegedly) and that Cohen will be testifying against him, it makes sense that any or all of the above could be additional charges.

    1. lambert strether

      Wikipedia doesn’t say, but I’m guessing these are all Federal crimes. So it’s not clear to me how Bragg gets them into a state court. Are they part of an “uncharged conspiracy”? (To me, a pretty frightening concept.)

      1. Reply

        Uncharged conspiracy as analog of Unindicted co-conspirators?

        Almost two-score and ten on from Watergate Hearings so ready for a reprise? Somehow, today’s Washington and New York casts can’t hold a candle to the originals.

      2. aj

        Lambert, you are correct that Cohen was tried in Federal Court. I will have to invoke my IANAL card. I have watched a couple of YouTube lawyers (LeagleEagle and Bruce Rivers) and neither has commented on the charges not being able to stick. While I think we can all agree the prosecution is very politically motivated, the judge seems to be taking it seriously and not treating it as frivolous.

  7. Big River Bandido

    This filing is just appalling — on so many different levels, but most especially for the absolute shoddiness of the lawyering: the poor writing, obfuscatory language, lack of agency, and most especially lack of any concrete reasoning. IANAL either, but if it looks this bad to me, I’m wondering what real lawyers think of Bragg.

  8. lambert strether

    I notice that no lawyers have as yet commented. Perhaps they are being kind, and everything I have described in this post is completely normal. If so, I think it’s a bad normal.

  9. Pensions Guy

    As a retired attorney, I thought Mark Pomerantz was correct in his conclusion that Trump should be prosecuted for the fraud involved in valuing his properties. He evaded property taxes by submitting valuations that were way below market values. When it suited his purposes, he committed fraud by overvaluing his properties. We have seen in the civil fraud case how powerful that evidence was. D.A. Bragg came into office and wanted to take a second look at the entire case, ultimately deciding that there was more live testimony supporting the hush money theory. Pomerantz couldn’t support that theory as the best case and was therefore sidelined. But that’s the choice of the elected D.A., so now we get to see whether he made the right choice. I’m not licensed in New York, so I express no opinion about the business records crimes.

    1. griffen

      Property taxes are assessed at the county level, however are they not? Seems unlikely to be the most cogent point of debate on the fraud case brought against Trump by the state AG. I submit property taxes based on the county where the property is located. I could have missed if that was covered, of course.

      Not a lawyer but my grasp of the details was that the fraudulent action was to overstate valuation of properties to lenders, and to grossly overstate square footage of certain key assets. Lenders testified to performing internal compliance and due diligence on their own, out of proper controls and risk management for lending on large property portfolios.

      It’s a curious thing to note that, following the case being completed that NY Governor assured that no one else in New York was at risk of prosecution. A curious, even obvious, statement, I thought.

    2. Prairie Bear

      “He evaded property taxes by submitting valuations that were way below market values.”

      IANL either, and I don’t know how the system works in New York, but in the four states where I have owned property, property-tax valuations are not assessed by the property owner submitting valuations. The county assessors notify the owner of what the valuation is. The owner can protest and appeal that evaluation through a formal process.

      Is this different in New York, and/or for large commercial property owners?

      1. Lambert Strether Post author

        > Is this different in New York, and/or for large commercial property owners?

        So far as I can tell, there’s nothing to indicate Trump’s non-virginal property tax valuations are one of the “other crimes” alleged by Bragg, so this discussion is off point.

    3. Lambert Strether Post author

      > D.A. Bragg came into office and wanted to take a second look at the entire case, ultimately deciding that there was more live testimony supporting the hush money theory.

      Please read the post. Hush money isn’t even a crime. Falsifying business records is a misdemeanor, except when that’s done in furtherance of an “other crime” — a crime or crimes as yet unrevealed by Bragg. That forthcoming revelation, and whether Bragg can make it stick, is the central issue in the case; see the diagram. Hush money has nothing to do with it.

  10. Dr. John Carpenter

    I just wish the MSM would stop indulging Trump’s wannabe mobster side and stop calling Cohen his “fixer.”

  11. jsn

    Everyone’s just making it up as they go along, and have been, more or less, since the second Clinton term.

    When Trump entered politics in ernest in 2014-15, “Our Democracy” (TM) entered the political equivalent of a “phishing equalibrium”, where every form of corruption imaginable was already operational, probably at scale and in multiple parallel forms. We now see P. Diddy running an Epstein like operation, and with Roy Cohn as his personal attorney in the Reagan years, I’m confident Trump Hotels have been as fully loaded with listening devices and cameras as the Reagan era US Embassy in Moscow.

    By the time Thomas and Scalia got onto the bench at the Supreme Court, all three branches were fully bought. G. H. W. Bush was still puppet master with most of the strings coming back to his “main bar”, but he was already losing control of the “leg bar” to other MICIMATT interests increasingly in tow of Silicon Valley cash flows. AI deepfakery should have matured by September when the curtains go up on “Our Democracy 2024” and any attempt to follow all the strings being pulled will be overwhelmed by the exponential hariball of tangled narrative threads, each relying on its own fiction for legitimacy. The show runs now at heuristic speed while deliberative systems plod along in the background, yielding up various facts and evidence of plausible realities slowly enough that the trolls on the Supreme Court have time to tie up the most opportunistic narrative threads to justify something between a Dadaist and Kafkaesque status quo.

    1. Lambert Strether Post author

      That Trump is “terrified” etc. — no doubt because the walls are closing in — is a staple of liberal Democrat discourse. It would be nice to see some evidence. I don’t think that Trump’s emotional spectrum is especially broad, but I don’t think being terrfied figures largely in it.

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