Digging Through the Trump Indictment
...and trying to cover the rest of a crazy week.
The Jackal is back following its Holy Week layoff. Obviously, a super big story dropped during the break, so we’ll get into that and try to cover the rest of the nuttiness in Should-Reads.
Preliminarily, I have to mention Substack’s new feature, Notes. It is basically Substack’s own version of Twitter, although Substack has tried to highlight the (positive) differences. I have been using it and will probably incorporate it into the next Jackal, so if you want to see that you’ll have to download Substack’s app.
I think the most important thing I can say about the indictment itself is that you shouldn’t look at its on its own. Due to New York’s (somewhat esoteric) laws and procedures, Alvin Bragg did not have to go into detail about the charges in the indictment itself. We all got used to “speaking indictments” from the Mueller Investigation, which provide context and clarity about the charges being alleged, but that is a standard practice in Federal prosecutions and is not incredibly common with State charges. It is not required by Bragg’s office and, in fact, is not even their typical practice (more on that later). So, to consider the entirety of the indictment fairly, we should look at three things:
The accompanying statement of facts.
Bragg’s press conference.
When you look at all three together (and only when you do that), you can perform a fair analysis. Let’s dive in, take a sober look, and try to avoid doing things like this:
Pelosi had years to get that tweet right and still flubbed it. Trump is innocent right now, and will remain so until trial with a verdict determines his guilt.
What are the charges?
Trump was charged with 34 countsof falsifying business records in the first degree, a violation of Penal law §175.10. Normally, this is a misdemeanor in New York State, but it was bumped up to a felony because it was done with the “intent to commit another crime and aid and conceal the commission thereof.” Bragg’s indictment does not detail the other crime that Trump either committed or concealed, which received a lot of criticism from pundits. But, as Bragg stated, New York State law does not require him to identify the other crimes Trump committed. That said, he did hint at them in his press conference:
New York State Election Law, which makes it a crime to promote a candidacy by unlawful means.
False statements planned to be made to tax authorities.
Violation of the cap on financial donations to political campaigns.
Of note, the last one would be a violation of a Federal law, something that was questioned by a few writers in this indispensable thread. Specifically, both Jed Shugerman and Ian Millhiser (neither of them being pro-Trump) said Bragg overstepped his bounds by tying this to a Federal crime, since New York State law isn’t explicitly clear about whether or not Federal crimes apply.
I kind of want to quash that right here: A plain reading of New York State law makes it abundantly clear that a misdemeanor gets bumped up to a felony with the “intent to commit another crime.” Any normal reading of that suggests that any commission of a crime - Federal or state - would trigger the felony application here. You can argue that is overly broad (would international crimes apply?), but that will ultimately be determined by the judge, who tend to side with prosecutors on this in New York State.
It seems like a lot of what Bragg intends to prove will come later, but overall it is important to say that this is a pretty standard, non-controversial indictment involving a crime that the Manhattan D.A. charges a lot. People who previously worked in the D.A.’s office actually said as much. What makes it controversial, obviously, is the defendant. But falsifying business records and bumping it up to a felony is not uncommon in New York.
In fact, when you go through the thread I linked to above, it appears that the majority of criticism that Bragg is getting comes from Federal prosecutors, while the majority of the praise he is getting comes from people who worked in New York’s legal system. That is something to note.
OK, just tell us if this is a strong case.
I think it’s important to differentiate between a solid case (i.e., one that will be easy for Bragg to prove) and a strong case. I feel that when people talk about bringing a “strong” case against Trump, they really mean that they want a big, flashy case that publicly embarrasses him and scratches every nagging #Resistance itch (CNN has an app for that). The case Bragg is currently bringing against Trump is solid, but flashy it is not.
Instead, Bragg was very careful about bringing a case that could be proven in front of a jury. We can feel confident about that by simply looking at past indictments in New York under the same charges brought here. Look at this indictment from 2017:
It is not dissimilar at all from the indictment brought against Trump. A sad truth about New York is that prosecutors there are so well-versed in filing these charges against politicians because it happens so often. A famous case was brought against Clarence Norman, a Democratic Assemblyman from Brooklyn, and the charges there were (surprise) falsifying business records, filed in tandem with allegations that he misappropriated campaign funds. In other words, Trump is not the first politician from New York to be charged under these laws and surely won’t be the last (though hope springs eternal).
To be honest, it is kind of a boring case, which might speak to any allegation that Bragg is politically targeting Trump. He previously turned down the opportunity to prosecute Trump in a bigger, flashier case involving Trump inflating and then deflating the value of his properties. Trump’s CFO, Allen Weisselberg, was eventually charged in that case and Bragg ultimately decided not to bring charges against Trump himself.
The prosecutors who were involved publicly criticized Bragg for his decision, but such a case would require Bragg to prove that Trump knew what he was doing was illegal. That is a hard thing to do with the CEO of a company, but it gets easier when you look at the requisite knowledge a CFO would have, and that helps explain why Bragg went after Weisselberg and the Trump Organization without involving Trump himself.
Here, some of the details included by Bragg help establish Trump’s mens rea when he was attempting to conceal the payments to Stormy Daniels. A common defense of Trump’s actions is that he could have decided to pay off Daniels (and Karen McDougal) simply to keep his reputation intact. After all, what married man would want evidence of his affairs floating around in public? Bragg quashes that theory pretty effectively, by detailing how Trump advised Michael Cohen to delay payment until after the election, because by then it wouldn’t matter. That makes it explicitly clear that Trump was trying to do this to help with his election chances, and overcomes a hurdle Bragg would have otherwise had in the case.
Does Bragg deserve any criticism?
I think one place where Bragg has rightly been criticized is his failure to produce a true speaking indictment. A defense of Bragg is obviously that Manhattan normally does not nproduce speaking indictments and they shouldn’t break from precedent just because Donald Trump is a former President. The problem here is that the Manhattan D.A. did break from precedent in the Weisselberg case, and produced a 25-page indictment with lots of details and reasoning. While that case was brought by Bragg’s predecessor, Cyrus Vance, Jr., it is reasonable to argue that Bragg should have recognized the gravity of this moment and supplied more details.
Will Trump be convicted?
This is where we get into speculative territory, but when you look at the totality of the charges, any real risk Bragg faces will be determined by the presiding judge. Trump’s team will inevitably argue that the felony up-charge should be dismissed, and it is possible (though not super likely) that the judge will agree. That would reduce Trump’s crimes to misdemeanors, at which point you have to wonder if the case is wroth prosecuting at all. Benjamin Wittes from LawFare asked a panel if they would have brought the case against Trump if a few misdemeanors were all that could be charged and the universal consensus was that charges should not be brought.
Another thing to consider (and I’ve said this before) now that we have the indictment is that it is unlikely Trump sees any jail time if he is convicted. The maximum penalty for this felony is four years, and Trump is a first-time offender. Standard practice in New York would be a fine and some sort of community service, although a lot of those sentences have come after the defendant pleaded guilty. In any case, if you want to treat Trump fairly and the same as anyone else, he shouldn’t get more jail time simply because his actions in 2016 felt more icky.
Really, that’s it?
Like I said, it is a very unsexy case. The first briefs in the case aren’t due until August, and while discovery will begin before then (which may produce leaks from Trump’s team), it is unlikely that we will see any serious movement until then. However, this is almost certainly not the last indictment Trump will face this year. The District Attorney in Georgia is proceeding through cases very quickly, and Trump’s election fraud case is almost certainly on her docket. It seems like that will be the next indictment-flavored shoe to drop (who eats a shoe?), with the Mar-A-Lago case and January 6th both possibly following over the summer. In short, buckle up.
Clarence Thomas has been in the headlines this week, thanks to ProPublica’s pretty incredible reporting. I enjoyed this commentary on the subject.
Another big story was the (essentially) nationwide ban on abortion pills, set to go into effect tonight. Adam Unikowsky, a former clerk of Antonin Scalia’s, does an incredible job breaking down the decision and criticizing it.
No matter what you think of what happened in Tennessee, I think it is undeniable that it has been an own-goal for Republicans there. They elevated three Democrats to near-hero status across the nation, only to have them return to the legislature in short order. Things have gone so poorly that Republicans are hoping to end their legislative session early and get their antics out of the headlines.
That’s it for the Jackal this week. I’ll see you all again next Friday.
These counts were related to the sheer number of times Trump paid Cohen, since his payment was spread out over several months. Each check number is even detailed in the indictment.