Manhattan District Attorney Alvin Bragg’s 34-count felony indictment of former President Trump is unquestionably historic, unprecedented and even tectonic. Yet everyone seems to be dumping on the indictment as a nothingburger.
After carefully reading the indictment, however, I believe Bragg has a better than even chance to win the case before a New York jury.
The indictment charges business records fraud. It is not unprecedented, as business records fraud is a “commonplace” prosecution in New York district attorneys’ offices.
What is unprecedented is Trump’s sordid conduct in allegedly paying off a porn actress, a former Playboy model and a Trump Tower doorman to “catch and kill” (in Watergate lingo, cover-up) sexual misconduct in the run-up to a close national election.
The indictment is a bare-bones pleading, parroting the language of the hoary provisions of §175.10 of the New York Penal Law. It’s not what those of us in the trade call a “speaking indictment” that gives a narrative of the crime worthy of a detective novel.
Here’s how the 34 counts break down: 11 counts for falsifying invoices; 12 counts for falsifying general ledger entries; 11 checks for falsely characterizing the reimbursements to Michael Cohen for the Stormy Daniels payoff as a legal retainer.
It is apparently the shopworn practice in white-collar crime cases in the Manhattan district attorney’s office to file a separate document called a “statement of facts” that puts more flesh on the bareboned charges. If the indictment is the still life, the statement of facts is the landscape. This one is riveting. Bragg alleges that:
“From August 2015 to December 2017, [Trump] orchestrated a scheme with others to influence the 2016 presidential election by identifying and purchasing negative information about him to suppress its publication and benefit the Defendant’s electoral prospects. In order to execute the unlawful scheme, the participants violated election laws and made and caused false entries in the business records of various entities in New York. The participants also took steps that mischaracterized, for tax purposes, the true nature of the payments made in furtherance of the scheme.”
The 13-page statement fleshes out the indictment – it’s about an effort to interfere with an election – and elaborates the other crimes Bragg believes he can prove Trump committed or concealed to enhance the false records charges into felonies.
Bragg believes Trump was directing a scheme to interfere with the election, and that this violated New York law. So, what is a New York prosecutor to do with these facts? Take a pass?
How did the scheme allegedly work? At a 2015 meeting, National Enquirer publisher David Pecker, Michael Cohen and Trump met and concocted a “catch and kill” plan to prevent any more damaging stories about Trump from surfacing during the presidential campaign.
The result was three instances where they were able to prevent damaging information about Trump from coming to light while he was running for office. The alleged payoff to keep Stormy Daniels quiet, involving $130,000 paid to her through Cohen and a shell company, was expected to be charged. The surprise was the inclusion of the $150,000 payment to another woman, a former Playboy model named Karen McDougal, who was shopping a story about an extra-marital affair she says she had with Trump, and an alleged $30,000 payment to a doorman at Trump Tower with a story, later rejected by Pecker, that Trump had fathered an illegitimate child. That’s the scheme. The indictment documents the false statements made to further the scheme, 34 of them.
Trump supporters who had suggested the “catch and kill” scheme was about protecting Melania Trump saw that defense blown apart. Prosecutors say Trump met with Pecker after the election and before the inauguration to thank him for his help with the election. They met again after the election and before the inauguration, where Trump “thanked Pecker for handling the stories of the doorman and Karen McDougal, and invited [the publisher] to the Inauguration.”
After Trump became president, he invited Pecker to a White House dinner in the summer of 2017 “to thank him for his help during the campaign.” Pecker is cooperating with Bragg’s investigation. He was the final witness Bragg brought before the grand jury, and, presumably, we will hear this story in his own voice.
Here’s the pièce de la resistance. Trump always claimed that he paid the money not because of the election but to avoid embarrassment to him and his family. But they structured at least one of the deals so they wouldn’t have to pay out funds if Trump lost the election. It was never about protecting his family.
Bragg pointed out that given Manhattan’s status as a center of financial activity, these are “bread and butter crimes” for his office.
So, the indictment make sense, and there is a strong, apolitical justification for bringing it. Bragg also responded to questions about why he decided to bring the case now by saying they had access to new evidence, although he didn’t specify what form that took. Good prosecutors never show their hand until the trial.
Some legal analysts are questioning why there isn’t more specificity about the crimes Bragg is alleging to enhance the misdemeanors to felony charges. Bragg’s filed statement of facts speaks of unspecified tax crimes. And we do not have to know at this point whether Cohen in fact declared and paid taxes on the reimbursement or whether the Trump Organization declared it as a business expense. It doesn’t matter: The language that elevates business record falsification to a felony requires only “an intent to commit another crime or to aid or conceal the commission thereof.”
It is the practice in New York to indict a case like this without referencing the specific underlying criminal violations that enhance the false records charges. And it would be a mistake to treat this case differently from other cases. If prosecutors had, Trump’s lawyers would likely be complaining about the additional information in the indictment. Now, they’re likely to file a motion asking for more particularity. We’ll learn the answers as the case progresses.
The sordid saga describes Trump’s illegal efforts to manipulate elections in unfair ways. Trump may denounce the indictment as “political persecution,” but his lawyers understand they have a difficult path ahead that is very likely to result in a number of convictions. I put Bragg’s chances of total success in court at better than even.
Will the indictment damage Trump politically? That remains to be seen. But Trump’s political future is getting more and more cloudy. If the Bragg prosecution emboldens prosecutors in Georgia who are investigating him for criminal violation of the election laws in the 2020 election, and in Washington, where special counsel Jack Smith is investigating obstruction of justice in connection with the mishandling of the Mar-a-Lago documents and the events of Jan. 6, 2021, then other indictments might cramp his style in running for the nation’s highest office.
As we all know in another factual setting: one woman, it’s “he said, she said”; two women, maybe a coincidence; three women, and the ship is sunk.
James D. Zirin is a former federal prosecutor in the Southern District of New York.