Bob Somerby summarizes the hush money case against Donald Trump this way:
To convict Donald Trump of a felony, the jury must find that he falsified business records (or directed that they be falsified) with “the intent to commit another crime.”
But what is that "other crime"? Bob is unhappy that our press corps remains fuzzy on this topic, but it's not really their fault. The fault lies with the prosecution team, which has itself been fuzzy on the topic.
Presumably, they'll have to finally sharpen up their case when they make their closing arguments to the jury next week. But until they do, the rest of us can only make educated guesses.¹
¹My guess is that they'll say the records were falsified in order to cover up the fact that the hush money was effectively an unreported campaign contribution. But that didn't convince a jury in the John Edwards case, so maybe they'll end up emphasizing something else.
An obscure New York state election law that has rarely been prosecuted over five decades has been dusted off by Manhattan prosecutors and elevated to a prominent role in Donald Trump’s criminal trial over allegedly falsifying documents related to a hush money payment during the 2016 election campaign.
The law — Section 17-152 of the state’s election code — makes it a misdemeanor for two or more people to “conspire to promote or prevent the election of any person to a public office by unlawful means.”
https://www.washingtonpost.com/politics/2024/05/06/trump-hush-money-trial-election-law/
Yeah, literally, hush money is the crime.
Only as a result of Trump using Pecker's and cohen's money who did it expressly to help Trump's campaign.
If you knowingly falsify business records in NY, that by itself is a misdemeanor. If you do it in connection with another crime, whether merely intended or actually carried out, that's a felony. That's the case in a nutshell, as I understand it.
The law you cite, conspiring to elect or defeat a candidate by unlawful means, is one of three "other crimes" that the DA has accused trump of intending to commit in connection with falsifying the business records. There are two others, and the judge ruled the other day that the business-records statute means that if the jury agrees that trump intended to commit any of those crimes in any combination, that's sufficient to convict him on the felony. They don't have to agree which one(s) he had in mind, only that he intended to commit at least one of them.
IOW, if he knowingly falsified the records, and if he had any one or more of those ulterior motives, that establishes the felony. So the election law is prominent, but not the only one involved.
They've already explained this, but maybe Kevin isn't actually reading the trial coverage or following closely? David Pecker's lawyers realized that paying off Karen McDougal was likely a campaign donation, so he stopped the deal with Stormy Daniels. Cohen was then forced to pay out his own money, which was a crime that he went to prison for. Trump told him to commit that crime because it helped his campaign. Trump then falsified business records to cover that up.
Finally, in 2016, COHEN made or caused two separate payments to women to ensure that they did not publicly disclose their alleged affairs with a presidential candidate in advance of the election. In one instance, COHEN caused American Media, Inc. (“AMI”), which was identified in previous court filings as “Corporation-1,” to make a $150,000 payment to one woman; in the other, COHEN made a $130,000 payment to another woman through an LLC he incorporated for the purpose of making the payment. COHEN was reimbursed for the latter payment in monthly installments disguised as payments for legal services performed pursuant to a retainer, when in fact no such retainer existed. COHEN made or caused both of these payments in order to influence the 2016 election and did so in coordination with one or more members of the campaign.
The Office also announced today that it has previously reached a non-prosecution agreement with AMI, in connection with AMI’s role in making the above-described $150,000 payment before the 2016 presidential election. As a part of the agreement, AMI admitted that it made the $150,000 payment in concert with a candidate’s presidential campaign, and in order to ensure that the woman did not publicize damaging allegations about the candidate before the 2016 presidential election. AMI further admitted that its principal purpose in making the payment was to suppress the woman’s story so as to prevent it from influencing the election.
https://www.justice.gov/usao-sdny/pr/michael-cohen-sentenced-3-years-prison
The judge ruled that just because AMI entered that agreement doesn't mean the Donald was involved in that crime. The prosecution has to establish that.
No they don't. There is no requirement that the crime being covered up be committed by the person falsifying the business records. There's also the resulting tax crimes.
The prosecution didn't have to establish Trump was involved in that crime(he didn't have to be part of the planning), only that he was aware that the financial documents were fraudulent.
I think memyselfandi and Solar have the right of it. In support of that, here's the NYT's trial liveblog on the 21st:
"But Justice Merchan pointed out that the felony falsifying business records charges that Trump faces include an intent to conceal another crime. The law doesn't require prosecutors to show that Trump intended to orchestrate a conspiracy, but rather that by falsifying business records, he intended to hide one."
i saw that comment in the live feed, but it was unclear to me what the other two potential crimes were
otoh, the ami/cohen crimes seemed like a slam dunk given that both parties plead guilty
i assume that establishes the fact that an actual crime was committed, but boy, i'm well aware that ianal
so... strong opinions, weakly held
"otoh, the ami/cohen crimes seemed like a slam dunk given that both parties plead guilty"
It is more or less meaningless. Once a defendant has agreed to take a plea they usually don't care too much exactly what they are pleading guilty to. So the prosecution can put all sorts of nonsense into the plea agreement.
Cohen was convicted in federal court. In federal courts, even when there is a guilty plea, there is still a trial and the judge must be convinced beyond a reasonable doubt about the crime. ie. even if someone pleads guilty they can still be found not guilty.
"Cohen was convicted in federal court. In federal courts, even when there is a guilty plea, there is still a trial and the judge must be convinced beyond a reasonable doubt about the crime. ie. even if someone pleads guilty they can still be found not guilty."
Do you have a source for this claim? I don't think it is accurate. It appears to me that the defendant and prosecution stipulate to certain facts and the judge proceeds based on that. I don't think the judge makes a finding that the stipulated facts are correct beyond a reasonable doubt.
If the defense and prosecution both tell the judge something is true, the judge is going to have to accept it as true unless it completely defies common sense. Like the jurors, the judge is required to make his decisions based on the evidence presented during the trial.
"If the defense and prosecution both tell the judge something is true, the judge is going to have to accept it as true unless it completely defies common sense. ..."
Which is why they aren't convincing evidence against a third party.
Yes. There was quite a lot of prior testimony about the fact that this was not about protecting Trump’s marriage as well as clear knowledge that it was an election finance violation.
The Edward’s case was different from what I have read because the payments started before he declared. Also the woman who made the payments said it was to protect his wife who was fighting cancer. If memory serves even then he was almost convicted. One count not guilty and hung jury on the rest.
And is there even any doubt at all that all that stuff happened? But, as I understand it that crime is a misdemeanor and the statute of limitations has run out on that. It’s the part that turns the misdemeanor into a felony that some are saying is tenuous. So, I’m not sure what happens if the jury decides he is guilty of the misdemeanor but splits or finds him not guilty on the felony. Can they find him guilty of the misdemeanor alone or must they find him not guilty or have a hung jury based on the felony only?
The sad part is that if he is found not guilty of the felony he and his water carriers will portray it as a total vindication. And it will work for them.
And the felonies in question are Class E felonies under New York law. which carry one to five years in prison, but there's no minimum and the judge can consider previous convictions and other factors in deciding whether to actually sentence someone to jail time. I think it's unlikely Trump will do hard time if he's convicted, but he's also pissed the judge off a bunch of times and will of course show precisely zero remorse. So maybe!
Given Trump's constant misconduct in this trial, I don't see how any judge can avoid sentencing him to prison. There are literally no mitigating factors and every aggravating factor one can imagine.
i don't know that trump's action during the trial are enough to land him in prison, assuming he's found guilty. he's 78 years old and a former president. it's unlikely that any 78 year old convicted on a class e felony is going to get prison time unless he had some kind of criminal record, which trump at this point does not have. a criminal past, certainly, but not a criminal record. throw in the disruption of having a former president as an inmate and it makes the possibility of trump doing time close to nil. at least he would officially be a felon and a convict.
Well said, jackson. I concur.
Leona Helmsley was 72 when she went to prison.
Trump has a criminal record. Ten counts of criminal contempt during this trial, plus two more from one of the Carroll trials.
If I'm remembering correctly from legal podcasts, "criminal contempt" isn't as good (or bad) as it sounds-- more like a term of art that doesn't actually work like a criminal conviction. When it comes to this defendant, though, would be especially happy if that's not accurate.
The judge has to know that if he sentences Trump to any amount of prison time, he'll be harassed (even worse) by Trump supporters. He doesn't seem like the type to be intimidated, but I would find it hard to put out of my mind if I were him.
"The sad part is that if he is found not guilty of the felony he and his water carriers will portray it as a total vindication. And it will work for them."
It's a mistake to let the creep's most fervent defenders choose your definition of victory. They can't make you do that, and you don't have to let them.
You're allowed to have standards that you don't let your enemy vote on.
A jury can only find a defendant guilty or not guilty of the crime or crimes that the defendant has been charge with. In this case, Trump was only charged with the felony version of falsifying business records because the statute of limitations has expired on the misdemeanor version. The judge will tell the jury what the elements of felony version of falsifying business records. If the jury concludes that some element of this crime hasn’t been proved beyond a reasonable doubt (for example, they aren’t convinced there was an intent to conceal another crime), the jury should acquit. It doesn’t matter whether or not the jury believes that Trump committed a crime that was not charged in the indictment.
but if the jury believes that he was involved in concealing a crime committed by someone else, the jury should convict, correct?
yes. the judge was very clear on that on 5/21. The prosecution has to show that DT intended to conceal a crime when he caused the records to be falsified. they do NOT have to show that he committed the crime that's he attempted to conceal.
Yeah, I'm not sure how you've missed this, Kevin. This has been discussed at length in the reporting, and was the main reason the prosecutors elicited testimony from David Pecker and others that Trump was trying to cover up the payments to benefit his campaign, not to save himself from personal embarrassment.
It's not just the New York statute mentioned above (N.Y. Elec. Code 17-152). It's also federal law under the Federal Election Campaign Act (FECA). FECA prohibits a person from making a campaign contribution in another's name, and it prohibits improperly reporting campaign donations. Those are federal felonies.
This is the correct answer. It's not like the NY prosecutors are unaware of this element of the crime — it's been a major focus of the trial for both the prosecution and the defense.
(FWIW, falsifying business records is still a crime even if no criminal purpose is proved, but in that case it's a misdemeanor.)
The main reason for confusion is that the DA isn't explicitly charging the "other crimes," just trying to demonstrate the intent to commit them. The intent is what's needed to make misdemeanor falsification of business records into felony falsification, not the actual commission of the crimes.
The allowed "other crimes" theories of the case are well summarized by others above (Merchan disallowed a fourth one) and in detail in this Lawfare post: https://www.lawfaremedia.org/article/charting-the-legal-theory-behind-people-v.-trump
Just on Tuesday, I believe, Merchan ruled that the jury doesn't have to be unanimous on exactly which of those three possible "other crimes" trump et al intended in order to find him guilty on the felony. They would have to be unanimous that he intended to commit at least one of them, but they don't have to agree which one(s).
The summation should lay it out as clearly as it can be laid out. How well reporters can then relay it simply and clearly is another question.
Just to add, per the Lawfare article, a second thing that can make for confusion is that the NY election law that states one of the three "other crimes" at issue isn't specific about what constitutes a violation. It forbids conspiring to promote or hinder a candidate's election by "unlawful means" and leaves open what would constitute unlawful means. From what the DA's office has said up to now, those would seem to include violating federal election law, violating tax law by filing knowingly false information, and falsifying business records.
this is why the jury instructions are so critical. the prosecution doesn't have to prove the other crime occurred or that trump committed it. only that there was intent. and as i understand it, the jury doesn't have to be unanimous in deciding which law trump intended to violate. they could all agree on one or split on the three possibilities, just as long as they're unanimous in trump's criminal intent.
You don't have to identify a crime, actually. Most people are falsely or casually interpreting the NYS. The statute's focus is the state of mind of the person participating in the falsification of records. Did you commit a crime to cover up what you thought was a crime? Not once, not anywhere, does it require "a crime" to be identified.
As one might come to expect it's not the act -- the payment of the hush money -- but the cover-up which ensnares.
"But that didn't convince a jury in the John Edwards case, so maybe they'll end up emphasizing something else." This ignores
1) Cohen has already been convicted of this crime
2) Pecker testified in this trial that he committed this crime
3) In the Edward's case, all of the money was spent after Edward's had withdrawn from the race
4) Edwards so-called donors both swore, literally on their death beds, that they weren't trying to help the defunct Edward's campaign.
5) At the time Cohen and Peckers swore they were donating to Trump's campaign, the campaign was at the height of its activities and the election was weeks ahead.
But other than this, the two cases are identical.
Good list!
Attempt to influence the election by suppressing potentially embarrassing information. That is, election interference. Ye Olde Republican Staple.
My guess is a sensible person would have pled to a misdemeanor, fine, no jail time. But...you know...Trump.
Agreed, but a sensible lying, cheating, self centered, wealthy con man would have just gotten together a pile of cash and sent one of his idiot sons to deliver it without leaving a paper trail or anyone but Stormy and that idiot son to know about it.
Trump wanted the payment to be tax deductible, to save $50k in taxes. I guess he doesn't really care how much the trial is costing him since its being paid by the campaign and he is fundraising the shit out of it.
trump simply cannot allow himself to pass up a tax deduction
sorta like the impulsive monkeys in the delayed gratification experiments; he just can't help grabbing the damn banana (as well as other objects of desire)
https://www.nycourts.gov/LegacyPDFS/press/PDFs/People-v-DonaldTrump2-15-24Decision.pdf
Who cares? He guilty of being a jackass. That’s good enough for me!
$10,000 fine and a weekend picking up trash in Central Park without security. That would awesome.
Electoral fraud is the crime. I don’t think Trump will go to jail if found guilty but like someone posted above, his shenanigans have probably tick off the judge enough that I would not be surprised to see a one month in jail. Though, a one year suspension with probation would probably do more harm since he would not be able to talk about his conviction without risking prison.
Mr. Drum’s AI friends have been busy again.
https://www.nytimes.com/2024/05/23/health/cyberattack-ascension-hospitals-patient-data.html
When is he going to admit this is only going to get worse. It’s a catastrophe in the making.
“The large-scale attack on May 8 was eerily reminiscent of the hack of Change Healthcare, a unit of UnitedHealth Group that manages the nation’s largest health care payment system. The assault shut down Change’s digital billing and payment routes, leaving hospitals, doctors and pharmacists without ways to communicate with health insurers for weeks. Patients were unable to fill prescriptions, and providers could not get paid for care. While some earlier cyberattacks affected a single hospital or smaller medical networks, the breakdown at Change, which handles a third of all U.S. patient records, underscored the dangers of consolidation when one entity becomes so essential to the nation’s health system.”
It’s time to nuke the Russians.
The rare "Here's a thing that might be bothering me more than other people" post, because he hasn't been paying attention.
who could blame him for not wanting to watch yet another legal proceeding where trump slurms away with no real accountability
especially since kevin and marian have been dealing with a number of other things as of late
This trial is about falsifying documents with intent to commit another crime.
That's it. They do not have to prove the other crime. They don't have to instruct the jury about the other crime. The other crime need not occur. The jury need only find intent.
I know this bothers a lot of people, it doesn't bother me. I don't know whether the jury will focus on this.
Thanks, Kevin. Bob has been grumping about this for a couple of weeks. You fully answered his gripes and did it with economy.
The prosecution has not been "fuzzy" about the "additional crimes". Read the ruling on the motion to dismiss starting on page 11. It's quite clear.
https://www.nycourts.gov/LegacyPDFS/press/PDFs/People-v-DonaldTrump2-15-24Decision.pdf
This is mistaken, but Somerby didn’t spot the error. The prosecution has to show that Trump’s “intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.” (quoting §175.10, the statute that Trump is charged with violating). That means that the prosecution can argue, for example, that Trump falsified business records after the election in order to conceal a violation of Federal election law committed by Cohen prior to the election.