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Trump’s Historic Indictment A Legal Stretch

05 Apr 2023

On Tuesday, Donald J. Trump, the forty-fifth President of the United States, became the first of America’s former chief executives to be indicted in a criminal court. The Manhattan District Attorney’s office charged Trump with thirty four counts of falsifying business records. The allegations revolve around Trump’s payments to suppress damaging information during the 2016 campaign cycle.

There is little question about the most salient facts of the case. Trump used Michael Cohen, his former fixer, and a relationship with the National Enquirer, to funnel funds to a porn star, a Playboy model, and a doorman at one of Trump’s properties. The two women were alleged to have had affairs with Trump, while the man claimed secret information about an out-of-wedlock child. The indictment references canceled checks and bank statements as evidence.

The legal hinge of the case is complicated. In New York law, Section 175 of the penal code can be grounds for either a misdemeanor (.05) or a felony (.10). For a felony conviction, the law requires the records falsification be done with the “intent to defraud” and “an intent to commit another crime or to aid or conceal the commission thereof.” The other crime does not have to be successful, but it is a necessary component.

The indictment, and the statement of facts handed down along with it, does not specify what the other crime might be, at least not specifically. The documents allude to campaign finance, conspiratorial schemes, and the suppression of information about the 2016 campaign. Bragg, the D.A., brushed off such concerns. It is unlikely the legal system will react with such nonchalance.

Bragg will likely rely on Michael Cohen’s previous admission of guilt, in federal court, of campaign finance violations. As Dan McGlaughlin notes, even those facts do not determine the state of the law in this situation. If anything, the theory seems to be that Trump violated campaign finance law by reimbursing Cohen for his own campaign’s benefit. Trump can donate however much of his own money to his campaign without legal restrictions.

As I watched some of the television coverage of Trump’s indictment and arraignment, the legal and political pundits were abuzz with the possibilities. But as information trickled out, and the statement of facts was released, the tenor of the discussion changed. The balloon, filled with the air of excitement, was punctured by the pin-prick of reality. Bragg’s investigation had not uncovered information to explain his actions, especially in light of the inaction of federal prosecutors and Bragg’s predecessor.

The immorality behind Trump’s payments to suppress his scandalous past would have destroyed any presidential campaign before 2015. Trump has rewritten the rules of scandal in American politics. It may take a series of events, legal or otherwise, to derail his quest for the Republican nomination. It is unlikely the kerfuffle in New York, in spite of its historic nature, will do much to change the contest. If anything, it will further Trump’s narrative of elite persecution.

Trump, however, is not clear of legal jeopardy. The case out of Georgia, revolving around his attempts to pressure state officials to “find” votes to change the results, could do more damage.