Trump’s New York trial: Where’s the crime?

The New York case against Donald Trump is drawing to a close, and Trump may have done exactly what the prosecutors claim — but one critical aspect seems to be missing: Where’s the crime?

If the prosecution plans to rely upon Michael Cohen’s plea deal to a campaign finance violation to convict Donald Trump, they’ve severely miscalculated.

In August of 2018, Cohen — the former attorney and self-proclaimed “fixer” for Trump — entered into a plea agreement with federal prosecutors to avoid facing trial on a host of felony charges, which exposed him to 65 years of imprisonment.

While there is no doubt that Cohen is a convicted criminal, the so-called “hush money” case against Trump raises an interesting question about whether one of the crimes to which Cohen pled guilty was even a crime at all. 

In count eight of Cohen’s federal indictment, he was charged with “making an excessive campaign contribution on or about October 27, 2016” in violation of campaign finance laws — better known as the Stormy Daniels payment. Federal law prohibited individual campaign contributions to a candidate for federal office that exceed $2,000. 

While Cohen stands convicted of committing this offense, in retrospect he might have been bamboozled by the feds, who threw this charge in with a litany of other offenses for which they had strong evidence to entice him to take the deal. 

This charge is likely the linchpin the New York district attorney’s office hopes will win their case against Trump. But it doesn’t quite work.

The prosecution in Trump’s trial has yet to reveal their specific theory of criminality against the former president. In order to prevail, the prosecution must prove that Trump falsified business records with the intent to aid or conceal another crime. As the state’s case draws to a close, it seems all but certain that the “other crime” they allege Trump tried to conceal is Cohen’s alleged campaign finance violation.

Putting aside whether a state district attorney can incorporate a federal offense to prove up an expired state misdemeanor (an appealable issue in its own right), the evidence adduced in the trial thus far begs the question of whether this was ever a campaign contribution in the first place — especially from Trump’s perspective. 

In May 2021, the Federal Election Commission formally dropped a case looking into whether Trump had violated election law with the $130K payment to Daniels. More than that, Biden’s own Justice Department — despite willing to go out on a limb with novel federal charges against Trump in other respects — also affirmatively declined to charge him with any crimes relating to the payment. 

If the prosecution’s theory relies upon Cohen’s plea to this offense, their case is dead in the water. No matter what Cohen says about all the alleged conversations and agreements he made with the former president, one still can’t conspire to not break the law.

In February 2019, Cohen gave testimony to Congress in which he detailed conversations with Trump about his reimbursement for the Daniels’s payment. Again, we’re left scratching our heads wondering why it matters. Lawyers routinely front legal expenses for their clients and are paid after the fact. Documenting such payments as legal expenses — without testimony that this is improper — further elucidates the failure of proof in the prosecution’s case.

At this rate, even conflicted Judge Merchan may be forced to grant the defense’s motion for a directed verdict of not guilty if the prosecution rests on the testimony of convicted fraudster Michael Cohen — who, oddly enough, may have been the victim of an overzealous prosecutor himself.

Andrew Cherkasky (@CherkaskyLaw) and Katie Cherkasky (@CherkaskyKatie) are both military veterans, former federal prosecutors and current criminal defense attorneys. As co-owners of the civil rights law firm Golden Law Inc., they focus their legal practice on federal felony trial defense and appellate representation and other civil rights-related issues. They are authors of the book “Woke Warriors.”