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Tuesday, 4 April 2023

Alvin Bragg’s Case Against Trump Is Still a Mystery

The Manhattan DA released the indictment today after Trump's arraignment, but we still don't know enough to evaluate the prosecution

IF YOU WROTE a list of American political virtues, "patient" would not figure prominently. So when we learned last week that Manhattan District Attorney Alvin Bragg had secured a grand jury indictment of former President and prominent Truth Social poster Donald Trump, nobody wanted to wait before jumping to conclusions. Speculation on the contents, strategy, and strengths of the unseen indictment was rife. Some legal commentators urged patience. Wait, we said. Wait to read the indictment. Then we'll know so much more about the District Attorney's theory and strategy.

Well. Don't we have egg on our faces. Alvin Bragg released the indictment today after Trump's terse and grumpy arraignment, supplemented it with an unusual "Statement of Facts," and topped it off with remarks at a press conference. But we still don't know everything we need to know to evaluate the prosecution. We only know the bare bones and the details the District Attorney decided to share.

We know that Trump stands charged with 34 counts of violation of New York Penal Law § 175.10, which prohibits making false entries in business records with intent to defraud. We know that the District Attorney charged these crimes as felonies, thus assuming the burden of proving that Trump made the false entries in order to commit or conceal another crime. We know where the allegedly fraudulent entries were made — in general ledgers and checkbooks of the Trump Organization and the Trump Revocable Trust — and the dates they were made. We even know (as we've known for months) the very general theory of the case: Former Trump fixer and rehabilitation-tourist Michael Cohen paid $130,000 in hush money to Stormy Daniels so she wouldn't reveal a series of memorable-but-not-in-a-good-way sexual encounters with Trump, and when Trump reimbursed Cohen (surprisingly) he falsely classified the reimbursement as payment of legal fees. The Statement of Facts even has allegations about which transactions happened when, and what the participants discussed.

What we don't know — at least with the precision necessary to evaluate the case's strengths and weaknesses — is the District Attorney's specific legal theory of how Trump was defrauding anyone and how he was promoting or concealing a crime by doing so. That may sound like law pedantry, but it's crucial to understanding the case.

Commentators disagree, but some argue that Bragg will have to prove that Trump conned someone out of money or property, or at least impeded the government's functions, to prove he falsified his books with intent to defraud under the statute. We don't know Bragg's theory of how he'd meet that burden, because neither the indictment nor the Statement of Facts spells it out.

Moreover, different crimes have different intent and knowledge requirements. Is the District Attorney arguing — as Bragg and his Statement of Facts imply — that Trump cooked the books to hide that he was committing federal campaign finance violations, because the payoff to Stormy Daniels was a prohibited contribution to his own campaign? That's a heavy lift: Campaign finance violations generally require the government to prove that the defendant acted "knowingly and willfully," meaning that the defendant knew their action was illegal. (As a rule, crimes mostly committed by rich people have daunting intent requirements, crimes mostly committed by poor people are easy to prove.) But we don't know their theory because they don't spell it out.

Is the District Attorney asserting that Trump was promoting tax fraud by making false entries in the Trump Organization's otherwise-no-doubt-irreproachable books? I don't know, and I do this for a living. The Statement of Facts says that the participants "also took steps that mischaracterized, for tax purposes, the true nature of the payments." But whose taxes were changed, and how? We don't know, so again we can't evaluate the intent requirements the DA will have to meet or how unlikely it is that Trump understood them enough to be criminally liable.

Bragg also said that Trump promoted a candidate (himself) by unlawful means through these false entries. That's probably a reference to New York Election Law § 17-152, a misdemeanor that prohibits conspiring to promote or prevent someone's election through unlawful means. But what are the unlawful means? Are we back to the campaign finance violations? Is this merely circular? The indictment doesn't say.

To understand Bragg's burden of proof, the challenges his office will face, and Trump's likely defenses, we need to know more about his legal theory of the case. This is a common problem with state prosecutions. District Attorney's generally don't offer "speaking indictments" that both narrate the government's version of the facts and apply them to the law. That's in sharp contrast to many federal indictments, and particularly Special Counsel Robert Mueller's verbose indictments of various Trump associates. Mueller would have explained how Trump intended to defraud and what specific crimes — with citations — he intended to promote or conceal.

One thing is absolutely certain — we don't know anything about the strength or provenance of the case because the District Attorney brought 34 counts. That's puffery — the number of counts doesn't have a material impact on the sentence and won't significantly alter what evidence is admissible. The DA could have brought a half-dozen counts and covered his bases and lost nothing. Nearly 30 years ago, federal judge William Matthew Byrne Jr. — who famously presided over the Daniel Ellsberg Pentagon Papers trial — hollered at me for about 10 minutes for bringing a 21-count grand jury indictment for fraud. He accused me of piling on counts so I could impress women in bars. At the time, I thought the criticism was unfair (and that Judge Byrne's grasp of what women want was somehow worse than mine). Now I realize that gratuitous count-padding is performative and time-wasting. Prosecutors do it because it works — how many breathless references to 34 counts did you read this week?

As the cases progresses, Bragg will be forced to show his hand (likely in response to motions by Trump) and we'll learn more about his specific theories and their chance of success. For now, be skeptical of certain predictions.

Manhattan District Attorney Alvin Bragg says "thorough investigation" led to Trump indictment

Manhattan District Attorney Alvin Bragg told reporters Tuesday after the arraignment of former President Donald Trump that a "thorough investigation" led to his office's decision to charge Trump with 34 felony counts of falsifying business records.

"This is the business capital of the world," Bragg said about New York City. "We regularly do cases involving false business statements. The bedrock of the basis for business integrity and a well-functioning business marketplace is accurate record-keeping."

Trump pleaded not guilty to all charges.

The charges were announced after Bragg conducted a grand jury investigation related to a $130,000 payment to adult film star Stormy Daniels made by Trump's former attorney and "fixer" Michael Cohen in the days before the 2016 presidential election. Trump has denied a sexual encounter with Daniels. Bragg's office announced last week that a grand jury had indicted the former president.

At his news conference Tuesday, Bragg alleged that Trump "repeatedly made false statements on New York business records" and "caused others to make false statements."

"Why did Donald Trump repeatedly make these false statements?" Bragg said. "The evidence will show he did so to cover up crimes relating to the 2016 election."

Bragg accused Trump of "paying Mr. Cohen for fictitious legal services in 2017 to cover up actual crime committed the prior year." To pay Cohen back, "they planned to mischaracterize the repayments to Mr. Cohen as income to the New York State tax authorities," Bragg said.

In addition to the payment made to Daniels, the indictment also details an alleged "catch and kill" scheme by Trump, Cohen and American Media, Inc. (AMI), which "agreed to identify and suppress negative stories about him."

Both Cohen and AMI have "admitted to committing illegal conduct in connection with the scheme," according to court documents. In August 2018, AMI, the owner and publisher of magazines and supermarket tabloids including the National Enquirer, "admitted in a non-prosecution agreement that it made a payment to a source of a story to ensure that the source 'did not publicize damaging allegations' about the Defendant 'before the 2016 presidential election and thereby influence that election,'" according to a statement of facts filed by prosecutors along with the indictment.

DeSantis’ signature tips US into majority 'constitutional carry' nation with new Florida gun rights law

FIRST ON FOX: The U.S. now has a majority of states with constitutional carry laws on the books after Florida Republican Gov. Ron DeSantis signed a bill into law Monday that eliminates the requirement for an individual to obtain a permit to carry a concealed firearm.

"The NRA applauds Florida for becoming the 26th state to adopt the vital Constitutional Carry legislation. This NRA-spearheaded initiative empowers Floridians to exercise their Second Amendment rights without undue bureaucratic barriers, affirming the fundamental right to self-defense," NRA-ILA Interim Executive Director Randy Kozuch exclusively told www.tranganhnam.xyz Digital in a statement.

The Florida Senate voted 27 to 13 last week on the constitutional carry bill, sending the legislation to DeSantis, who signed it into law on Monday morning. There were already 25 states that had permitless or "constitutional carry" laws on the books, meaning Florida tipped the U.S. into becoming a constitutional carry-majority nation.

The law allows eligible citizens 21 years of age and up to carry without asking the government for a permit and without paying a fee. The legislation does not change who is eligible to obtain a carry permit, and those who still wish to get a permit may do so under the law.

"We thank Gov. DeSantis for his support of self-defense and Second Amendment laws and for prioritizing the safety and security of Florida residents. This historic moment is a testament to the dedication of the NRA, our members, gun owners, and Second Amendment supporters working together in the state. Today's NRA victory inspires us to continue advocating for Constitutional Carry laws across the nation, ensuring the protection of Second Amendment rights for all Americans," Kozuch added in his comment to www.tranganhnam.xyz .

"We extend our gratitude to the Florida legislature and all those who have worked tirelessly to make this a reality in the Sunshine State."

The law will officially go into effect on July 1, 2023.

"Constitutional Carry is in the books," DeSantis said in a press release Monday.

Republicans in the state argued over the last few months that the bill would further protect residents and their families from potential crimes, while also continuing to advance Second Amendment freedoms.

"This bill is a big step, a big step to help the average law-abiding citizen, to keep them from having to go through the hoops of getting a permit from the government to carry their weapon," Republican state Rep. Chuck Brannan said last month.

Florida state Democrats and activists argued that easier access to conceal carry would lead to more violence.

Neighboring Georgia became the 25th state with a constitutional carry law on the books when Gov. Brian Kemp signed a similar bill nearly one year ago.

Monday, 13 February 2023

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