I've just spent the past hour reading half a dozen reports about the closing arguments in Donald Trump's hush money case. And I'm confused.
As you all know, Trump is accused of ordering his personal lawyer, Michael Cohen, to pay off Stormy Daniels in order to keep her quiet about an affair they had. This happened during the 2016 campaign. Trump later reimbursed Cohen but recorded the repayment as a "legal expense," which is an illegal falsification of business records.
But it's just a misdemeanor. In order to become a felony, it has to be done in furtherance of another crime. So what exactly is that other crime?
The press reports barely even mention it—because, I gather, the prosecution barely mentioned it. Instead, prosecutors spent nearly their entire 5-hour closing argument trying to convince jurors that Stormy Daniels really was paid off and that Trump really did order the payments recorded as legal expenses. I'm no lawyer, but that strikes me as odd since the evidence supporting this seems pretty voluminous. It also lines up with common sense. Why would you spend five hours going through this while jurors are starting to doze off?
I'm not sure. By contrast, the "other crime" seems like something you really need to convince the jury about. So what is it?
There are some hints. The Wall Street Journal gives it a single sentence: "Prosecutors’ second crime—a state election-law offense that makes it illegal to conspire to promote or prevent a candidate’s election through unlawful means—factored prominently in Tuesday’s proceedings."
It certainly doesn't factor prominently in the Journal's coverage, but at least they mentioned it. They say definitively that the second crime is a vaguely described New York State election law.
Conversely, National Review's Andy McCarthy says, "it is quite amazing how explicitly the state is relying on violations of FECA as the 'other crime' that Donald Trump was allegedly concealing by causing his business records to be falsified." FECA is a federal law.
Rachel Scharf of Law360 provides this explanation of what assistant DA Joshua Steinglass told the jury:
Aha! An unlawful campaign contribution. I believe this would be a violation of FECA, so we're still on federal law. But CNN says this:
Joshua Steinglass moves on to tax fraud violations. "Listen carefully to the judge’s instruction," the prosecutor says. "It’s a crime to willfully create false tax forms," even if they don’t lead to the willful false payment of taxes, he says.
Donald Trump had an incentive to keep the Stormy Daniels story quiet in 2018 and Steinglass says he was still actively trying to prevent his catch-and-kill scheme from going public.
...."Any single one of those unlawful means is enough for you to conclude the Trump Tower conspiracy violated New York state election law," Steinglass says. "You don’t have to agree" on which part of the law was violated, he notes.
Tax fraud?!? Where did that come from? In any case, in this passage the prosecution clearly says it's alleging violation of New York state law. How? Who cares. Steinglass tells the jury to pick any of the things they've talked about. They're all violations.
Finally, there's this from The Hill:
Prosecutors had long suggested four crimes that could be used as the so-called “bump up.”... But now, Joshua Steinglass is making clear that the district attorney’s office intends to move forward with only one of those remaining theories to the jury: that Trump intended to violate a state election law making it a crime to conspire to promote a political candidate by “unlawful means.”
Those unlawful means, Steinglass said, includes violations of federal campaign finance law, among others.
Oh come on. Steinglass says they've zeroed in on the state law, but that this might include violations of federal law.
This is all confusing as hell. What's not clear is whether it's confusing because prosecutors told the jury to pick any old violation and go with it, or because the press reports spend almost no time explaining the prosecution's theory of the case. Stay tuned.