Alvin Bragg’s Case Against Trump Presents a Tangle of Interacting Laws and Intent Puzzles
During four days of testimony in Donald Trump’s trial, his estranged lawyer and fixer, Michael Cohen, supplied crucial evidence linking the former and possibly future president to the crimes alleged by New York County District Attorney Alvin Bragg. Cohen said “the boss” instructed him to pay porn star Stormy Daniels $130,000 shortly before the 2016 presidential election to keep her from talking about her alleged 2006 sexual encounter with Trump. Cohen said Trump also approved a plan to reimburse Cohen in 2017 through a series of payments disguised as compensation for legal services. Cohen was the only witness who gave direct support to the latter claim, which underlies the allegation that Trump falsified business records—the heart of the case.
One question for the jurors is whether to believe Cohen, a convicted felon and admitted liar with a powerful grudge against Trump and a financial interest in agitating for his imprisonment via books and podcasts. Another question is exactly what sort of intent is required to convict Trump not only of falsifying business records but of doing so to conceal “another crime,” which elevates what would otherwise be 34 misdemeanors into 34 felonies. Here things get confusing because of the interacting statutes on which the prosecution is relying.
As a misdemeanor, falsifying business records requires only an “intent to defraud.” If the jury believes the prosecution has proven beyond a reasonable doubt that Trump knew the checks to Cohen were falsely identified as payment for legal services, it will convict him of falsifying business records.
Trump personally signed nine of those 11 checks, which the stubs described as “retainer” payments. Although Trump designated Cohen as his personal lawyer after the election, Cohen testified that he never expected to be paid for that position, which he said he was glad to have mainly because of the business connections he thought it would facilitate. Cohen said he never had a retainer agreement with Trump.
Although Trump had to sign those checks because they were drawn on his personal account, his lawyers say, he was not aware of exactly how his bookkeepers characterized the payments. According to the defense team, Cohen presented invoices that the Trump Organization paid as a matter of course, and Trump was too busy with presidential duties to concern himself with the associated records.
To rebut that account, prosecutors presented testimony that Trump was a proud penny-pincher who never would have agreed to pay Cohen without knowing exactly what he was getting in return. The payments totaled $420,000. According to handwritten notes by Trump Organization CFO Allen Weisselberg, that included reimbursement for the hush payment, which he doubled to account for taxes, plus a bonus and a reimbursement for an unrelated expense. Prosecutors suggested it was implausible that Trump actually thought he was paying Cohen for his 2017 services as a personal lawyer, and Cohen testified that Trump signed off on Weisselberg’s plan during a meeting at Trump Tower.
To prove that Trump is guilty of 34 felonies, however, the prosecution had to show that his “intent to defraud” included “an intent to commit another crime or to aid or conceal the commission thereof.” Lead prosecutor Matthew Matthew Colangelo said the other crime was a violation of an obscure New York statute:Â Section 17-152Â of the New York Election Law, which makes it a misdemeanor for “two or more persons” to “conspire to promote or prevent the election of any person to a public office by unlawful means.”
Prosecutors say the “unlawful means” was Cohen’s payment to Daniels: By fronting that money, he made an excessive campaign contribution, thereby violating the Federal Election Campaign Act. Cohen accepted that characterization, which hinges on the fuzzy distinction between
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