The First Criminal Trial
The First Criminal Trial
Donald Trump's business fraud case starts this week.
Happy Monday morning everyone. I know what you’re wondering: Why is this hitting my inbox at the beginning of the week? That’s because I wanted to give you a quick preview of Donald Trump’s first criminal case, which starts TODAY.
Off the bat, I want to say this Jackal will be a reprieve from the super long ones as of late, and should make for easy reading. But before we get to the good stuff, to keep with The Jackal’s house rules I am including a landscape picture. And because we Trump’s trial is taking place in Manhattan, I figured it would be nice to include a picture of New York’s tallest borough. However, this is a personal photo of mine, and it is ten years old (!), so if you have a more recent photo of the skyline from this spot (Long Island City, but it can be from somewhere else), I’d love a submission so we can use it next week. My guess is we will still be talking about the trial, and I’d also love to see the huge changes to this part of the city.
I have a life and I forgot what this trial is about.
I got you. In the dek, I called this Trump’s “business fraud case” because I think that is the most fitting descriptor. Yes, the case is related to Trump paying off a porn star to keep quiet about their affair. Yes, Michael Cohen went to jail for his participation in this crime. Yes, all of this happened shortly after the infamous Access Hollywood tape was released and possibly had an effect on the 2016 Election. But it is less about those things and more about what ultimately “gets” a lot of criminals: The cover-up.
You see, Trump’s case isn’t really about the Stormy Daniels story or the election stuff, but it’s about Trump’s system for reimbursing Michael Cohen. Let’s go back to what happened in 2016:
During the 2016 Election, Trump paid off a porn star with whom he previously had sex with to keep their affair under wraps. He did so through his personal attorney, Michael Cohen, who directly made the payment of $130K to the woman in question, Stormy Daniels (Stephanie Clifford). Trump later reimbursed Cohen for the payment. Because the payment came from Trump personally, it was deemed a violation of Campaign finance law, as it directly benefited his campaign, was over the legal limit for a contribution, and was made illegally (Cohen did it through an LLC).
That’s how I summarized the whole affair shortly before Trump was indicted last year. But that was about the Federal charges leveled against Cohen himself, and Trump was never charged in that case (although he was identified as an un-indicted co-conspirator).
The New York case is focused on how Trump paid Cohen for his actions, which was - more or less - a scheme to falsify business and tax records to make it look like Cohen was receiving regular income from Trump, rather than a reimbursement related to an illegal financial agreement.
Cohen paid Daniels her initial $130K, and also did another $50K favor for Trump related to tech stuff, so his total reimbursement from his boss was $180K. Trump paid Cohen that, and then another $180K(ish) in order to compensate him. This was “billed” by Cohen over the course of 11 invoices, for which Trump produced 11 checks, and made 12 ledger entries in the Trump Organization’s records.
11+11+12 = 34 counts, which is what Alvin Bragg charged. Pretty simple, right?
OK, that is different from what I remember.
I think the reporting on Bragg’s method has been a little lackluster, and that’s not down to the reporters involved but more so the weird and esoteric nature of New York’s laws. I think this question will be helpful: Does anyone know the actual structure of New York’s courts and/or appellate courts? IT’S INSANE.
In New York, their trial court - where Trump is being charged - is called a SUPREME COURT. That’s right: What we usually call our highest court New York calls its lowest, itty-bitty baby court. Its highest court is instead called the Court of Appeals. Only Texas and Oklahoma have a similar system and if that’s your company…things are not looking good.
With that framing, you can understand why Trump’s indictment for falsifying business records sounds…weird. You see, falsifying business records in the second degree (which is what Trump did) is a misdemeanor. However, falsifying business records becomes a felony (first degree) when you do it with the intent to conceal another crime.
Under New York State law, that crime can be Federal, or it can be a State crime. Here is where Bragg’s initial indictment confused people: If you look at it, it is extremely bare bones, and does not even name the crimes Trump was trying to conceal. But it is common practice in New York for such an indictment to not name those crimes, and instead casually mention them later. That’s exactly what happened here.
This is why Bragg was always going to be in a tough spot, no matter what he did: Everyone knows Trump and Cohen participated in a criminal violation of campaign finance laws, because Cohen was convicted of those crimes and Trump was named as an un-indicted co-conspirator in the indictment. While that crime was happening, Trump then spent almost the whole of 2017 falsifying his business records every month to make it look like he was paying Cohen for regular legal services, when in reality he was reimbursing him for the payment to Stormy Daniels.
When it comes to Donald Trump, I think a lot of the time people fail to consider the counter-factual of any, “There is a bias against Trump!” argument. This includes the media too, who have more or less repeatedly treated this as the “weakest” of the four criminal cases Trump currently faces. But part of that is a product of the “vibes” of conservative framing, where every accusation against Trump is considered unjust. Just imagine this scenario:
New York State routinely punishes people for falsifying business records (it is, in fact, one of the Manhattan DA’s most frequent charges).
Manhattan resident Jeremy Piven1 very publicly falsifies his business records, and a documentary is made about it.
Piven says the documentary and all the negative press associated with it is a witch hunt against him.
New York decides not to charge him, due to all the negative publicity.
That is kind of the counter-factual with Trump: If New York charges this sort of crime all the time, at what point is it a bias in Trump’s favor not to charge him? Would New York’s actions with Jeremy Piven be considered understandable, or would the public say he was getting special treatment because he is a celebrity? We should be asking the same questions about Trump.
I went through a list of cases involving falsifying business records in the first degree going back 11 years, and found 29 cases. Not all of those were done in Manhattan, but how would those 29 defendants feel if Trump got a freebie?
Just to cite an example: Bragg himself indicted a company called “OneTeam” for stealing more than $7 million in workers’ compensation insurance premium payments though (mostly) insurance fraud, but also “by filing doctored payroll-related documents that greatly reduced the size of Oneteam’s workforce.” They falsified their business records in the furtherance of another crime and got indicted.
Things. Do. Be. Illegal. I do not accept the framing that Bragg is targeting Trump because he does not like him, mostly because Trump has received highly privileged treatment throughout this process.
Yeah, didn’t Trump threaten the judge’s daughter?
Yes! Trump has repeatedly threatened Justice2 Juan Merchan’s daughter, and even violated a gag order that was put in place after his first round of posts about her. If he were any other defendant, Trump would be awaiting his trial in Riker’s. He is absolutely getting special treatment.
Some of that is even present at jury selection, where Justice Merchan opted to allow an “automatic” disqualification of any juror who felt they could not be impartial. This was partially done to cut down on the sheer number of people in the courtroom (with his Secret Service detail, Trump’s entourage is YUGE).
Weirdly enough, this could actually speed up the jury selection process and cut it down to 1-2 weeks as opposed to the normal 2-3 weeks, but we’ll have to see how it plays out.
So, this week is just them selecting a jury?
Basically, yes. We don’t even have a set timeline for opening statements. But I do think there are a couple of other things to look out for:
Trump has a few motions pending that are awaiting a ruling.
I think a lot of these are going to get resolved pretty quickly once the trial gets going. Last week, Trump made a few last ditch efforts to delay the trial, and none of them worked. Basically, the appeals courts in New York have said this trial is happening whether Trump wants it to or not.
Trump’s attorneys here are actually pretty good.
There have been a lot of words written about Trump’s legal team and I think it’s important to say: Not everyone working for him is Alina Habba. He has two attorneys here, Todd Blanche and Susan Necheles, and while Blanche doesn’t have a ton of experience in criminal defense on his own, Necheles does. She is also an extremely good lawyer and is highly respected in New York legal circles. I really can’t say that enough, so it will be interesting to see her performance here, and with her representing him I do not think a “not guilty” verdict is out of the cards for Trump. She is that good.
With that said, I have another interesting aside: When Trump’s legal team files motions and briefs in this case, there are certain things that Necheles will not sign on to. If you are a prosecutor reading this, I would love to hear if you have ever encountered that before, because I think it is highly unusual!
And if you are a New York court reporter and have talked to Necheles about this, I’d love to hear from you too!
With this trial starting and the immunity arguments at SCOTUS happening next week, the Jackal will fully be in its legal wheelhouse for the foreseeable future. Sorry if that bugs you, but maybe I will throw in something about Jesus in there to cleanse the palette. See you Friday!
I could not for the life of me tell you why I selected Jeremy Piven, or if he even lives in New York. He seems like a hardcore LA guy.
More evidence of New York’s insane legal system: Trial court judges are called “justices,” something usually reserved for a Supreme Court justice!