In the wake of the sweeping jury verdict declaring Donald Trump guilty of 34 counts of falsifying business records to the first degree, some highly respected commentators have maintained that Manhattan District Attorney Alvin Bragg should not have brought the case in the first place.
Jonah Goldberg of The Dispatch wrote, “Except for the misdemeanor of false records, none of these things are proven crimes and some of them are not crimes at all.” CNN’s Elie Honig called the case an “ill-conceived, unjustified mess,” with charges that are “bespoke, seemingly crafted individually for the former president and nobody else.” They have a point, and Trump himself embraced this comforting view of the charges against him. After the trial adjourned each day, while clutching a stack of papers and reciting snippets of legal critiques, he complained to reporters that, “Every legal scholar says, ‘They don’t have a case.’”
The jury has now spoken and a successful appeal is vanishingly slim. The argument that paying off a sex partner to hide an affair from voters is perfectly legal — something that Trump attorney Todd Blanche said is “called democracy” — was always Trump’s strongest defense. But it may be hyperbole to suggest that the crimes for which Trump was convicted are not even crimes.
By now, the guts of the case are familiar: Trump was charged with falsifying business records with an intent to commit another crime or to aid or conceal the commission of another crime. The 34 counts match 34 business records, which include a series of invoices from and $35,000 checks to Michael Cohen over a nine-month period. The payments were falsely recorded in the general ledger for the Donald J. Trump Revocable Trust as legal fees instead of repayments to Cohen, who secured a nondisclosure agreement from Stormy Daniels in exchange for $130,000 to keep the story of her affair with Trump quiet in the days preceding the 2016 presidential election.
These records were all internal — they were not used to defraud the IRS around tax obligations, for example, or to cook financial statements for purposes of obtaining bank loans (which a New York judge found Trump did at the conclusion of a civil fraud trial in February). But falsification of business records is a well-established crime under New York’s penal code. Legal analyst Norman Eisen wrote in the New York Times that he has examined “almost 10,000 prosecutions for falsifying business records in New York since 2015,” and found that “in the most serious of these cases, about 10 percent of the total, incarceration was imposed” — including for first-time offenders.
According to critics, the bigger flaw in the Bragg indictment is what turned the misdemeanor charges into felonies: election law offenses that the jury concluded were tied to the false business records. The government argued that Trump falsified the records to keep the Daniels affair from the voting public, aiding his chances of a presidential win. Section 17-152 of New York’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.” During the trial, Manhattan Assistant District Attorney Joshua Steinglass explained to the judge: “There is conspiracy language in the statute. The entire case is predicated on the idea that there was a conspiracy to influence the election in 2016.”
The law has been used before, including against Aron Wieder, who in 2011 as vice president of the school board in East Ramapo, N.Y., assisted voters who had been told they could not bring baby strollers inside the polling site. The same year, Clement Campana, a former city council president in Troy, N.Y., was also charged with a felony count of falsifying business records and a misdemeanor count of election conspiracy under Section 17-152 in connection with a mayoral bid. Both cases were later dropped.
Although Trump wasn’t separately charged with a violation of Section 17-152, the falsification of business records statute doesn’t require a jury to conclude beyond a reasonable doubt that the defendant committed the underlying crime — it applies merely “when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.” The arguments against Bragg’s indictment may therefore be more about the letter of the law than anything else.
The fact that prosecutors don’t use a statute very often is not a reason for nullifying it. Nor is the novelty of a legal theory grounds for rejecting it out-of-hand. That’s how the law evolves — lawyers bring creative thinking to new scenarios and judges decide if those theories hold water.
Consider that two of the four federal criminal counts brought by Special Counsel Jack Smith against Trump over his involvement in attempting to overturn the election derive from the Sarbanes-Oxley Act, enacted in 2002 in the wake of the Enron corporate accounting scandal. The government has used its language relating to obstruction of an official proceeding to prosecute hundreds of Jan. 6 rioters, one of whom has successfully appealed to the Supreme Court; the court will decide in Fischer v. United States whether the government overreached in applying that law to the unprecedented events of the Capitol insurrection.
Although prosecutors have tremendous power, and misconduct is a serious concern — particularly for low-income defendants who lack the vast resources and political power of a former president — Smith’s decision to apply untested legal theories to bring legal accountability to the horrors of Jan. 6 is hardly prosecutorial misconduct.
To shy away from applying old law to new facts can produce travesties of justice — it’s not always the other way around. Bragg’s case is no different.
Kimberly Wehle is author of “How to Read the Constitution — and Why.” Her forthcoming book, “Pardon Power: How the Pardon System Works — and Why,” is out in September. Follow her @kimwehle.