黑料不打烊

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By , Professor of Law, 黑料不打烊 College of Law.

Manhattan District Attorney Alvin Bragg has charged Donald Trump with a 鈥淐lass E鈥� felony (the lowest felony in New York) under New York Penal Law 搂 175.10, for reimbursing his prior attorney, Michael Cohen, the $130,000 Cohen paid to Stormy Daniels to sign a non-disclosure agreement in the waning days before the 2016 election, and disguising those payments as attorney fees.聽 What does the District Attorney have to prove under NYPL 搂 175.10?

The case requires peeling an onion containing multiple layers of legal doctrine leading nowhere.

First, NYPL 搂 175.10 requires proof that the defendant committed a misdemeanor under NYPL 搂 175.05 (鈥淎 person is guilty of falsifying business records in the first degree [175.10] when he commits the crime of falsifying business records in the second degree [175.05], and . . . 鈥�).聽 So the first step is for the District Attorney to prove the misdemeanor under Section 175.05.

Section 175.05, in turn, provides that the defendant is guilty of a misdemeanor 鈥渋f, with the intent to defraud, you make, or even cause through other means, a false entry in an enterprise’s business records.鈥�

So the District Attorney must first prove that Trump made the false business records 鈥�with the intent to defraud鈥� in order to satisfy the misdemeanor under Section 175.05 that is a predicate to the felony under Section 175.10.聽 The District Attorney has not explained who Trump intended to defraud by falsifying the business records.

There are some appellate division cases that have suggested that a showing of intent to mislead is sufficient to satisfy the 鈥渄efraud鈥� requirement, although that loose reading of a criminal statute is dubious because criminal statutes are normally strictly interpreted, and 鈥渄efraud鈥� has a well-defined legal meaning.聽 Why would the legislature use the word 鈥渄efraud鈥� if they intended to criminalize an intent to mislead someone without the usual additional requirements for fraud, like proving that a victim suffered damages by relying on the truth of the misrepresentation.

In addition, the two year statute of limitations on the misdeamenor (New York law, CPL 搂 30.10(2)(a)) expired long ago, and the District Attorney did not charge Trump with the misdemeanor.聽 It is not clear whether the felony can stand when the misdemeanor is time barred.聽 The felony statute requires showing that the misdemeanor was committed, since the felony is really a penalty enhancement on the misdemeanor.

Second, in order for the business records misdemeanor to be bumped up to a Class E felony under Section 175.10, 鈥渉is intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.鈥澛� So, in addition to proving that the business records were falsified to 鈥渄efraud鈥� someone, the District Attorney must show that Trump falsified the records to commit 鈥渁nother crime鈥� separate from the fraud.

Judge Marshan allowed the District Attorney to proceed with the criminal prosecution without detailing exactly what the 鈥渇raud鈥� or 鈥渙ther crime鈥� was.聽 The District Attorney merely suggested that Trump may have committed state tax fraud, or violated the federal election laws, or violated New York election laws, but was not required to spell out the violations, or to pick which of them applied to each of the two separate crimes that must be proven under Section 175.10.

Well, now the District Attorney has told the court which horse he intends to ride in the case. It鈥檚 New York Election Law 搂 17.152. What is that?

New York Election Law 搂 17.152 makes it a misdemeanor to 鈥渃onspire to promote or prevent the election of any person to public office by unlawful means.鈥澛� There are very few cases applying this rather obscure statute, but on its face it requires showing an 鈥渦nlawful鈥� conspiracy.聽 So the misdemeanor requires proof of intent to 鈥渄efaud,鈥� the felony requires proof of intent to commit or cover up an independent crime, and the independent crime requires proof of a conspiracy by 鈥渦nlawful means.鈥澛� What is the 鈥渇raud鈥� or 鈥渦nlawful means?鈥�

Oh, and that Election Law misdemeanor is also barred by the two year statute of limitations on misdemeanors.

The District Attorney and many pundits have suggested that these three statutory requirements can be met merely by showing that Trump made the false records intending to influence the election.聽 But everything that every candidate does is an attempt to influence an election.聽 To constitute a felony, the acts to falsify records must have been 鈥渇raudulent鈥� and 鈥渦nlawful,鈥� and that鈥檚 the catch.聽 What makes paying hush money 鈥渇raudulent鈥� and 鈥渦nlawful?鈥澛� Running for office is not like selling securities to the public.聽 There is no statute requiring full disclosure of all material facts.聽 Politicians have the highest level of free speech protection for their campaigns.

Some experts have suggested that the District Attorney does not need to prove that the underlying payment to Stormy Daniels was a crime, only that Trump thought it was a crime.聽 I disagree.聽 One cannot 鈥渋ntend鈥� to commit or cover up a crime if what one intended to do was not a crime.聽 Yes, there are cases saying that the prosecutor need not charge and convict the person of the independent crime, but that does not excuse the prosecutor from proving that the intended act was in fact a crime.聽 If someone created false business records to cover up what they thought was a crime, but what they thought was a crime was in fact legal, then they would not be guilty under the statute.聽 Cases like People v. Taveras, 12 NY 3d 21 (2009), which held that the Section 175.10 only requires a showing of intent to commit the crime, even if the person did not go through with the crime, or People v. Thompson, 124 A.D. 3d 448 (NY App Div. 2015), which held that the person does not have to be charged with or convicted of the separate crime, are not on point.聽 What was intended must be a crime, and the District Attorney must prove that it was or would have been a crime if the defendant followed through, in order to meet the statutory requirement.聽 Falsifying business records with intent to commit a legal act is not a crime under the statute.

The District Attorney will be able to prove the facts that he has alleged.聽 Despite Trump鈥檚 denials, the argument that Michael Cohen paid $175,000 to Stormy Daniels on his own does not seem credible.聽 There surely was an understanding that Trump would reimburse Cohen for the payments.聽 We do not know why the payments to Stormy Daniels were made by Michael Cohen.聽 I suspect that someone (maybe Michael Cohen) suggested structuring the payments that way to prevent a paper trail back to Trump, so that he could plausibly deny paying hush money to a porn actress if the payment became public.

But why were those payments 鈥渦nlawful鈥� or 鈥渇raudulent?鈥澛� Who even knew about and could have been misled by the false business records at the time of the election?聽 How would Trump even know about the obscure New York Election Law 搂 17.152 provision that he is being accused of intentionally concealing?聽 These are fundamental problems with the legal theory underlying the case.

But if it would have been legal for Trump to have paid Stormy Daniels directly, then disguising the payments through Michael Cohen did not show an 鈥渋ntent to . . . conceal another crime,鈥� nor a conspiracy to 鈥渦nlawfully鈥� influence an election.聽 The District Attorney鈥檚 case is now based on three criminal statutes all of which depend on separate frauds or crimes that have not been clearly alleged or proven.

Where does the case go from here.聽 The outcome of the trial will likely depend on Judge Merchan鈥檚 jury instructions.聽 Will Judge Merchan鈥檚 instructions require the jury to identify the specific fraud and independent unlawful act made to influence the election separate from the business records falsification, or will the instructions only require proof that Trump tried to hide his hush money payments to influence the election, ignoring the requirement to clearly identify a separate fraud and unlawful act.

If Trump is convicted, will Judge Merchan sentence him to prison on a first-time non-violent Class E felony, creating a constitutional crisis in the middle of the election?聽 Or merely give him probation and leave him free to rail against the corrupt judicial process while appealing his conviction.聽 If the judge sentences Trump to prison, will it be upheld on appeal?聽 And if Trump goes to prison, what happens to the election?

If the Democratic Party thought that this prosecution would benefit their election, I think they blundered badly.聽 Trump is benefitting from the publicity, successfully portraying himself as the victim of a political witch hunt.聽 Ultimately, the election will not be decided by the courts.聽 Trump could run for and be elected president whether he鈥檚 convicted and sent to jail or not.聽 And the greater the penalty, the more likely he will win the election.聽 Knowing that they can鈥檛 knock Trump out of the race, what is the prosecution鈥檚 end game?