April 5, 2023

Trump Charged

Former President Donald Trump was charged on Tuesday with 34 felony counts of falsifying business records in a historic case over allegations he orchestrated hush-money payments to two women before the 2016 U.S. election to suppress publication of their sexual encounters with him… While falsifying business records in New York on its own is a misdemeanor punishable by no more than one year in prison, it is elevated to a felony punishable by up to four years when done to advance or conceal another crime, such as election law violations.” Reuters

Here’s our prior coverage of the case. The Flip Side

Many on both sides are skeptical of the charges:

“Hush payments aren’t illegal. But the reimbursements from the Trump Organization to Trump fixer Michael Cohen were logged as legal expenses. This was misleading and is potentially a misdemeanor. Prosecuting Trump over misdemeanors would be too ridiculous even for Bragg, who campaigned on nailing Trump and showing leniency to street criminals. It would also run afoul of the fact that the statute of limitations has lapsed on any misdemeanor…

“So Bragg needed a way to transform the misdemeanors into felonies, which he can do, in theory, if the false business accounting was in the service of another crime. There’s been a great deal of speculation about what that other crime is, and the much-anticipated indictment… doesn’t say…

“Asked why he didn’t mention the other alleged crime in the indictment at his post-arraignment press conference, Bragg said the law doesn’t require its being specified in the indictment. Even he must know that’s absurd. The purpose of an indictment is to put the accused on notice of what crimes he has committed, and this other ‘crime’ that Trump allegedly concealed by misdemeanor records violations is essential to the case.”
The Editors, National Review

“What are the other crimes Trump is accused of covering up? The indictment doesn’t say, but Bragg was asked on Tuesday, and he offered a few possibilities. First, he said, the doctored records ‘violated New York election law, which makes it a crime to conspire to promote a candidacy by unlawful means,’ including making false statements. Second, Bragg cited the federal election law cap on contribution limits…

This is not well-trodden legal territory. If I understood Bragg’s argument correctly, there is a certain circularity to saying that a false statement on corporate books becomes a felony, not a misdemeanor, because state election law makes it a misdemeanor to promote a candidacy by unlawful means, such as making false statements… The indictment unsealed on Tuesday is disturbingly unilluminating, and the theory on which it rests is debatable at best, unnervingly flimsy at worst.”
Ruth Marcus, Washington Post

“The uncomfortable reality is that, while Trump may be a career criminal, he does not deserve to be prosecuted for this particular charge… Prosecutors have some cases that clearly constitute crimes (say, refusing to rent an apartment to Black people), others that clearly do not constitute crimes, and a nebulous middle ground in which judgment is required. This last category is where the greatest potential for political abuse lies…

“Elected officials ought to be held to the same standard as other Americans. While their standing does not give them license to commit crimes, it also shouldn’t expose them to criminal liability that a regular person would never face…

“Trump is in this position because he maneuvered to keep quiet a tawdry story about his infidelity. That is not a crime… Trump is in a position where an activity he could have done legally became a crime simply because he was a candidate for office. The entire scheme follows from his effort to cover up an alleged affair. That is the definition of being below, not above, the law.”
Jonathan Chait, New York Magazine

“Mr. Bragg owes the public a better explanation of his theory of the case. His unclear and evasive reply Tuesday isn’t helping his cause, and the country shouldn’t have to wait for months to find out the answer. Some news reports say Mr. Trump’s next court appearance is probably on the docket for December. That’s only about a month or two before the Iowa caucus is supposed to take place…

“Mr. Trump is being indicted for conduct that happened in 2016. Federal prosecutors already examined this activity and apparently decided to let it drop. Seven years later, after a halting local investigation, an elected Democratic DA has indicted Mr. Trump, in a case that could finally come to a resolution right in the middle of the 2024 primaries… How it will affect Mr. Trump’s 2024 candidacy is anyone’s guess. Maybe the better question is how it will affect the public’s view of justice.”
Editorial Board, Wall Street Journal

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