March 20, 2023
Manhattan District Attorney Alvin L. Bragg is apparently on the verge of charging Donald J. Trump under New York state’s business records statute for concealing hush money payments that may have affected the outcome of the 2016 presidential election. In the first essay in this series, as well as in some of the authors’ prior writing, we analyzed the applicable facts and law and predicted that charges were likely. In this next installment, we dive into a particular sticking point: the legal bases for elevating the misdemeanor business records violation to a possible felony. To our knowledge, no in-depth review of these bases has yet been made publicly available, and so we walk through them here. We also analyze Trump’s likely defenses, and conclude by addressing his inflammatory recent calls to action and what the DA will do next.
Falsifying Business Records
Falsifying business records under New York law can be charged either as a misdemeanor or a felony. The misdemeanor requires proof of one of several potential acts. Relevant to Trump is the statute’s prohibition of making “a false entry in the business records of an enterprise.” The evidence indicates he personally signed checks to Michael Cohen as reimbursement for the hush money payment. If DA Bragg can prove that Trump signed those checks—and it appears he can—and that Trump knew the payment for hush money was being falsely recorded as “legal expenses,” then Trump committed a misdemeanor (or likely a number of misdemeanors, if each false entry is charged separately).
To establish a felony (i.e. falsifying business records in the first degree), prosecutors would need to prove, in addition to the elements of the misdemeanor, that Trump’s “intent to defraud include[d] an intent to commit another crime.” There are a number of candidate crimes—and we offer below an assessment of just some of the more likely options.
Potential Predicate Crimes for a Felony Charge
Despite the numerous possible violations that could theoretically be charged, we focus our analysis on three possibilities based on publicly available information and our collective decades of experience prosecuting and defending criminal cases: (1) federal campaign finance crimes; (2) state campaign finance crimes; and (3) conspiracy to promote or prevent an election.
1. Federal Campaign Finance Crimes
There is strong evidence that Trump’s conduct in the hush money payments involved federal campaign finance violations. —After all, Cohen was convicted for just such offenses, and the Justice Department’s sentencing memorandum stated that he “acted in coordination with and at the direction of Individual-1,” who was easily identified as Trump. There are two potential problems with federal campaign finance violations serving as the basis for a felony charge in New York. As we noted in our last article on the subject, there are nuances in the definition of the word “crime” under New York state law. The New York Penal Law defines “crime” as “a misdemeanor or a felony.” Both “misdemeanor” and “felony” are separately defined as an “offense” for which a term of imprisonment can be imposed (the distinction between the two being the length of incarceration allowed).
Finally, “offense” is further defined as:
“conduct for which a sentence to a term of imprisonment or to a fine is provided [1] by any law of this state or [2] by any law, local law or ordinance of a political subdivision of this state, or [3] by any order, rule or regulation of any governmental instrumentality authorized by law to adopt the same.”
Clearly, a federal law is not a “law of this state” or “any law, local law or ordinance of political subdivision of this state” – the first and second option. The third option in the statute, “any order, rule or regulation of any governmental instrumentality authorized by law to adopt the same,” could include federal law. In contrast to the other two clauses, the third does not explicitly limit “governmental instrumentality” to be “of this state.” And of course Congress is “authorized by law” to adopt laws imposing sentences of incarceration. Further, the “same” in this context could mean “any order, rule or regulation,” which could potentially include federal law. The text of the statute therefore could include federal crimes. Moreover, if the New York state legislature wished to limit the third option to New York state law, they certainly could have said so clearly. There also appear to have been cases in New York brought with a federal crime as a predicate offense, as we noted in our first essay in this series.
Nevertheless, the only appellate court in New York to have considered the meaning of “offense”—albeit in a very different context, and without parsing the third clause listed above—found that it applied only to New York crimes. That appellate court will not bind a Manhattan court because it is out of another district and because its context is so distinguishable. But it will undoubtedly be pressed by Trump as persuasive authority if the federal crimes are relied upon to elevate the misdemeanor books and records charge into a felony. It remains to be seen how a judge would rule on this point if it is put to the challenge. If we were charging the case we would charge both federal crimes and state ones as alternative bases for elevating the misdemeanor to a felony, and we further discuss the scope of the federal case in subsection 4 of the legal defenses section below.
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