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:
Steinglass zeroes in on the alleged election law violation underlying the scheme:
"Once AMI purchased stories on a candidate's behalf and in coordination with the campaign, those purchases became unlawful campaign contributions," he says.
— Rachel Scharf (@rscharf_) May 28, 2024
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.
I've tried posting links to the judge's ruling in the motion to dismiss that clearly details exactly which "additional crimes:" can be argued at trial.
But my posts never show up.
Read this, starting on page 11. It lists the exact crimes that are allowed at trial.
https://www.nycourts.gov/LegacyPDFS/press/PDFs/People-v-DonaldTrump2-15-24Decision.pdf
It’s irrelevant what crime he covered up- all the jury has to decide is that in Trump’s mind, he was covering up a crime. They don’t even have to agree on what crime he was covering up. The vagueness isn’t in the prosecution, it’s in the law, for good reason: by altering the records, Trump made it impossible to prove the other crime occurred. This is the business equivalent of destroying evidence, that’s all. You’re waaaaay overthinking it.
Seriously. This has all been well known for months. Kevin's "gee willikers, I'm so confused about this" take is entirely bizarre.
And you think the prosecution proves that Trump believed he was covering up a crime? How do you prove that without even saying what the crime was?
Fuck you troll, that’s why.
Longer answer: “Attempted murder now what is that? Do they give prizes for attempted chemistry?” -Sideshow Bob “if I didn’t succeed at my criming, you can’t charge me with criming” defense strategy. Didn’t work for him, shouldn’t work for Trump. Criming in the process of covering up other crimes should be totally illegal, even if we aren’t quite sure what your ultimate criming goals were or whether you would’ve succeeded.
+1
You're an abusive asshole who refuses to take a stand when the questions get tough. Fuck off and get the fuck outta here. Nobody loves a tosser.
The jury has been repeatedly informed as to the crimes committed by Trump, Cohen and Pecker.
All this stuff goes in the jury instructions. The jury will have each word of these various laws right in front of them, along with the instruction that “if you find beyond a reasonable doubt that the defendant intended to conceal the commission of this crime, then the government has met its burden as to that element of the crime charged.”
There’s no percentage in parading it in public.
Totally, I'm confused why Kevin is confused. The crime doesn't even need to pulled off, just this was done intentionally to hide possible criminal activity.
It's so the cover-up and getaway driver are still in trouble even if their buddy failed to do the crime.
We don't want people legally successfully hiding crimes.
If my understanding is correct there is not a lot of direct evidence that Trump ordered the payment. Cohen provided that evidence.
That is why that phone call to Schiller/Trump is so important and why the prosecutor made a point of proving Cohen had had plenty of time to speak to both Schiller and Trump.
Trump did not need to order the payment, merely be aware that the payment was going to be made fraudulently and he agreed with the scheme.
That's why the prosecution emphasized so much not just that Cohen had enough time to inform Trump, but also the testimony of other witnesses emphasizing how much of a micromanager he was and how involved he was in everything that happened. On this matter him repeatedly passing notes to his lawyers probably didn't do him any favors.
You're ignoring that there really isn't vagueness. The crimes being covered up were the campaign finance felonies Cohen was convicted of and that pecker admitted guilt to during his testimony. The crimes enabled were tax fraud since the falsified payments resulted in both Trump and Cohen submitting false information in their tax filings for the year 2017. When you deceive voters through criminal conduct (i.e. the campaign felony crimes), that's a state election interference crime (While it is legal to deceive voters, NY law makes it illegal to deceive voters via criminal methods.)
I guess the language of the elevated-to-felony part of the law is essentially "in furtherance of another crime." I wonder if "with illicit intent" would have been better.
As to tax laws, I believe the story is that the payments were categorized as legal fees, which would generally be a tax deductible expense for a corporation. They were really campaign contributions, which would not generally be tax deductible, if I'm not mistaken.
And if that were done innocently, it would be more a violation than a crime: pay the additional tax owed and maybe a penalty, and go on your way. Same with most election law violations: mistakes are of course made, but if they were innocently made and corrected when discovered, no more than a slap on the wrist.
But of course none of it was done innocently.
"Illicit intent" would have been better wording because it would avoid the question of, how are you noting as the additional crime that was "furthered" something that is basically never charged as much more than a traffic violation -- ?
""in furtherance of another crime." No, it's in furtherance of another crime or concealing a crime. The first part covers the tax fraud, the 2nd part covers hiding the campaign finance felonies and hiding the state election interference crime. "I believe the story is that the payments were categorized as legal fees, which would generally be a tax deductible expense for a corporation. " It was more the topping up. Since by declaring it a retainer, it became a tax liability for Cohen whereas as a reimbursement it was not taxable income. The fact that it caused Cohen to pay extra taxes does not in fact make it less of a crime. the state is owed both the correct taxes and an honest declaration of income. (As well as that fact that it made Trump owe less taxes.)
Distinction without a difference.
My understanding is that the jury doesn't have to agree on what the "other crime" is, and the other crime need not even have been committed -- just that Trump thought he was covering up a crime.
And now I see I should have read the previous comments before posting.
"Donald Trump had an incentive to keep the Stormy Daniels story quiet in 2018"
2018?
I'm surprised by that. He's already president and it's hard to imagine voters in 2020 being influenced by it. Was the incentive a political one or a personal/family one.
Kevin seemed to understand this better a month ago:
What happened between April 25th and today?
Kevin had lunch in Orange Co with yet another one of his “decent” Republican friends who squirted Fox News talking points at him like a squid and then quickly scurried away, leaving Kevin helplessly floating in a fog of inanity and amorality.
Kevin's issue, as I understand it, isn't that he can't identify other crimes. It's that the prosecution wasn't more explicit about them in making their case to the jury. I'm guessing Kevin thinks he's guilty. I certainly think he's guilty. But the only ones who matter are the jurors.
But the prosecution did make them clear, just the media didn;t report on that part of the testimony. (Other than they really did report that pecker admitted on the stand that he committed campaign finance felonies.)
When we last checked up on this the other day, it *was* a little convoluted. But the fact that different reporters don't seem able to agree how to explain it doesn't mean there isn't a theory.
Here's where we were then on the prosecution's case: they first had to establish that the business records were false, and also that trump "caused" them to be created. That took up a lot of today's summation, as you say.
Then there's the intent to commit or conceal a second crime, the "felony bump-up." The DA isn't separately charging that second crime, and the law doesn't say what kind of crime it has to be. And there only has to be intent. That's been analogized with burglary: breaking in is just trespass, pretty minor, but it can become burglary-- whether actually committed or not-- based on intent as demonstrated by carrying a swag bag, texting with a known fence about new items coming their way, stuff like that.
Intent to commit or conceal what crime? As of a few days ago there were three options on roughly equal footing, two of which were straightforward and the other sort of recursive. The two straightforward ones are the FECA violation and the tax fraud one-- filing false tax declarations is a violation even if it doesn't reduce your taxes. They were talked of as possible "other crimes" in themselves.
The recursive one is the state election law angle. It's completely non-specific, as the Hill quote says-- promote or hinder a candidacy through unlawful means. It's recursive because it can encompass the other two straightforward ones as well as lead in the direction of, say, conspiracy to commit election fraud of some kind. (It's open-ended and vague, too, and there have been suggestions on CNN that it'll be found unconstitutionally vague.)
There's at least a theoretical advantage to laying out three equal possibilities instead of wrapping the other two inside the election law-- the jury doesn't have to agree which of the three trump intended, only that he intended to commit or conceal at least one of the three. But on the other hand, states aren't usually in the business of directly enforcing federal laws, so the state election law's recursiveness might give the DAs a tactical advantage by encompassing the federal law under the "unlawful means" rubric.
And it could be that the judge's instructions (issued Thursday but not public yet) might have changed things on that point between last week and today. But I wasn't following closely enough today to get that nuance, and the media reports aren't clear enough yet.
How about all of the above? Then use the confusion to sew doubt.
$500 fine for the misdemeanors. There’s only one way to get rid of trump. And that is a felony! Definitely not worth it. Americans deserve their fate. I don’t even blame democrats really. I don’t think anything could save them from the forces of modern crony capitalism and the looting class.
If, as you insist, the prosecutor has to prove the intent of another crime, then you're demanding that they prosecute an uncharged crime.
That is not what the statute says.
Also, when is the media going to go over the last FEC filings to fact-check the Trump campaign claims last month of breaking fundraising records?
I think this might be clearer from the transcript than from the real time reporting from the courtroom. You might take a look at that.
Everyone seems to be deriding Kevin on this, but I'm as confused as he is. There seem to be many possible other crimes for the prosecution to allege the falsification was in furtherance from, but the specificity has been lacking from all the coverage I've seen. Is it required for the prosecution to be specific? I'm honestly not even sure on that. But would it be helpful in convincing a jury? Sure seems like it to me. Maybe the jury instructions, which as far as I know are not public, clear it up for the jurors, but like Kvin, I'm confused.
"There seem to be many possible other crimes for the prosecution to allege the falsification was in furtherance from," The prosecution specified three to the jury and two in the indictment. Tax, fraud, campaign finance felonies that Cohen admitted to and admitted being convicted of, and pecker admitted to during this trial. Tax fraud, I haven't seen what the prosecution told the jury about in this matter. And the state election interference as a result of the campaign finance felonies.
Trump falsified business records to conceal the fact that he was paying off Cohen for paying off Daniels in order to protect his campaign. Crime 1: falsifying business records. Crime 2: election fraud. Crime 1 was committed in furtherance of Crime 2. Bada-bing! This isn't complicated.
As others have pointed out, the prosecution didn't have to prove that Trump *knew* he was committing Crime 2 in the process, or intended to (he absofuckinglutely knew he was committing Crime 1 and didn't give a shit because that's how he's always operated).
If Trump's acquitted on this, or it ends in a hung jury, it will be straight-up political jury nullification. The prosecution case was so complete, the defense didn't even try to rebut it -- they just badgered the witnesses and otherwise spewed squidclouds of butthurt all over the courtroom.
????????????????????
Check out:
https://www.lawfaremedia.org/article/what-must-prosecutors-prove-in-trump-s-ny-trial
thanks
Capone?
I think the bottom line is this particular issue -- "What's the second crime?" -- is a little too complex for most journalists these days to understand. And it seems to dilute the power of "the first president criminally indicted" etc etc.
However, you don't have to read much to find skepticism about whether he's really in trouble for a felony or just a bunch of misdemeanors.
Of course, the question of whether intentionally falsifying business records should be just a misdemeanor is a worthy one. Seems to me we have here a prime example of white collar crimes being treated rather lightly. (I always think of that poor woman in Texas who got jail time for accidentally voting while she had a criminal record...)
Nevertheless, whatever you think of Trump, the law has to apply to him.
For those who want to read a good skeptic, I recommend googling up the blogs of Teri Kanefield, the writer and former defense attorney, who makes a pretty convincing (to me) case that the law here is vague and confusing and it's hard to see how Trump can be guilty of a felony. She convinced me that the most likely result here is Trump is found guilty by this jury, but the verdict will be reversed on appeal by some righ-wing Federalist society types, partly because this kind of complication in the law is catnip to judges.
I also recall that David French had a column in the NYT a few weeks ago on this very subject, and his conclusion was sort of a middle ground. He felt the law was vague, but noted that many smart lawyers think it's pretty clear that the illegal campaign donation angle means Trump is clearly guilty of a felony.
All in all, seems there's room for me for the usual right-wing appeals court judges to throw this all out.
well, it's NY state court so there may be a slightly lower ratio of federalist society types
The judge is currently giving the jury instructions and Josh Kovensky is live blogging and explaining over at TalkingPointsMemo.com. It's worth checking out. Most, if not all, of these questions are being answered.
Agree, he did a good job laying out the way the judge explained the law, as far as I can tell. https://talkingpointsmemo.com/live-blog/jury-expected-to-begin-deliberations-today
well, buckle up; the jury's got it now
Why did Trump pay the porn star? To improve his electoral chances. Thus the money represented an electoral contribution. When he lied about this he was not only forging documents, he was also committing electoral fraud. Let’s see it another way, can a state pass a law that committing a crime for the purposes of getting an election advantage is also a crime? Yes, of course. Can a drunk driver be also convicted of reckless driving with the same offense? It happens all the time. A single action by an individual may involve several crimes such as gun laws, security laws, on and on. There is a reason why Trump has been charged with more than eighty felonies.
Thanks for the nice breakdown.
"Why did Trump pay the porn star?" No, the whole key to the trial is that Trump didn't pay the porn star or the playboy bunny. Cohen paid the porn star and the national enquirer paid the playboy bunny at Trump's direction. That's what made those campaign fiancé felonies (which the non-partisan staff of the FEC explicitly determined as felonies, contrary to the constant bald face lying by the right.)
Just glanced at the tv.
Jury begins deliberations! Five minutes and counting!!
Yeah, CNN has a permanent BIG sidebar showing how many hours the jury's been out. smfh, but at least it isn't ticking off minutes and seconds!
It the Covid deaths hourly update bar is back! Go CNN!
I have to revise and extend-- they're doing it by the minute! Sometimes no amount of stupid is too much stupid for somebody to do.
A neat aside: as long as the jury deliberates, Trump and his legal staff have to remain in the courthouse. In case a verdict is announced, so they'll be on hand to be called to the courtroom.
This will put a crimp in campaigning, and maybe even Xitting and press conferencing.
No to the second because they can give press conferences in the court house as he has been doing all along.
Instead of "other crime" it might be more on point to think of the felony bump-up as being due to "aggravating factors." These accused crimes are felonies if there are aggravating factors, which this law describes as a specific kind of intent. And that's just about as far as the DA needs to go.
Coverage hasn't paid as much attention to the falsification and trump's complicity, but proving those have been no slam-dunk even though everybody who knows anything about him has no doubt that the records are phonied up and that he was ultimately behind it. But establishing that on the record has taken a ton of testimony about how trump does business inside that little fiefdom and how a lot of it is done by nods and winks, phone calls, face-to-face insinuations, and mostly to avoid creating an actionable record. Pre-emptive obstruction has been a standing MO for him, really.
Mark Stern had it right back in April 14th. The case started as the runt of the litter but Stern realised it was a winner.
Bragg crafted a clever strategy. He had Trump on both state and federal law because covering the events were campaign moves with different implications in each set of laws. This meant Trump couldn't move the trial to federal court, (and now there's no single person who can pardon Trump at both levels yay).
Bragg was able to spin misdemeanors into felonies, which opponents are trying to disparage as trickery but it's just what prosecutors do when they want to throw the book at someone.
And the way I read it not only was Bragg's strategy smart, but it followed a legal logic that was going to leave the jury with almost no way of finding Trump not guilty. Seeing how he was found guilty on all 34 counts I'd say Bragg and Stern were both right.
https://slate.com/news-and-politics/2024/04/stormy-daniels-prosecution-stronger-than-i-thought.html