In Part One I explained how a grand jury differs from a petit (trial) jury. The significant difference is that the prosecution’s evidence gets challenged at trial, where the accused is presumed innocent until the prosecution proves guilt. So an indictment does not mean the accused will be found guilty.
The Indictment charging Donald Trump is the weakest case I’ve ever seen. I can’t even understand how the Indictment actually charges Trump with a crime.
Let’s examine the specifics of the indictment of Donald Trump. To begin, here is the commentary accompanying the New York State rule of procedure setting forth the requirements of an indictment:
“A criminal indictment … provides the defendant with fair notice of the accusations against him so that he will be able to prepare a defense. NY Crim Pro § 200.50
I’ve read the Indictment against Donald Trump. It charges that he made false entries into records of the Trump Organization with the intent to commit fraud to cover up another crime, in violation of New York penal statute § 175.10.
That statute provides:
“A person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.”
The First Degree act is a felony. The Second Degree act is a misdemeanor. If the Second Degree act is committed to conceal another crime, it becomes a felony.
As ‘statute of limitations’ (SOL) requires that a crime be charged within a specific time frame — or it can’t be charged at all. Such limitations exist to prevent prosecutions of crime too remote in time. After an SOL has expired, a crime can not be charged.
All the business record falsifications alleged in the indictment are misdemeanors for which the SOL has expired. If the falsifications were made to “conceal the commission” of some other crime, they would be felonies for which the SOL has not expired.
So to be found guilty of, and even be charged with, the crime, the prosecution must prove the entries in the business record were A) false; and B) done with the intent to “commit another crime or to aid or conceal the commission thereof”.
I’ll address B) first. What was the other “crime” Trump aided or concealed?
The Indictment doesn’t say Trump was concealing another crime, which raises the question of how it is even a lawful indictment because it provides Trump “with fair notice of the accusations against him”. The prosecutor attempts to remedy that fatal deficiency with an accompanying ‘Statement of Facts’ alleging the false entries were made to conceal “damaging information from the voting public during the 2016 presidential election”.
Is concealing “damaging information from the voting public during the 2016 presidential election” a crime? If so, where might we find the New York state statute criminalizing it? I can’t find such a statute — and the Indictment certainly doesn’t enumerate one.
A fundamental principle of criminal law is that a citizen can not even be accused of, let alone convicted of, a crime that does not exist.
As Solzhenitsyn describes, even under Stalin’s totalitarian Marxist dystopian system Beria was able “show the crime” under their criminal statutes. If no specific provision of the Soviet criminal code applied, the accused would be charged under Article 58, which criminalized any political deviation from the socialist government’s approved doctrine — including “thought crimes”. Beria used Article 58 to populate the slave-labor camps described so graphically by Solzhenitsyn, who was convicted under that Article.
Since New York doesn’t have an Article 58esque catch-all criminal law (at least not yet), for Trump to be convicted the prosecution will have to prove what specific crime he was aiding or concealing. The fact neither the Indictment nor the Statement of Facts specifies such a crime suggest their isn’t one — meaning the Indictment charges are only misdemeanors and should be dismissed for expiration of the SOL.
Having shown that the Indictment does not set forth the actual crime the accused committed, let’s break down what it does say. Trump allegedly made false entries into company records about payment to a hooker/porn actress to keep her quiet about his having had an affair with her while his wife was pregnant.
(Apparently being a “porn actress” who gets paid to perform sex acts on camera is different than being a prostitute who gets paid to have sex in a hotel room. I’m not judging. How the woman makes her living doesn’t bother me. I’m just sayin’ … )
Setting aside the question of whether a hooker demanding money to keep quiet is blackmail (the legal term is ‘extortion) and giving her the benefit of the doubt by calling it ‘settlement of a potential lawsuit’ paying someone to settle a lawsuit is not a crime. That the potential lawsuit was by a hooker, and her shyster lawyer (who is now in prison for fraud), doesn’t turn settlement of a civil lawsuit into a crime.
Nor does calling it, “paying hush money”.
If settling a lawsuit by payment of money is a crime, then the head of every insurance company in this country could be indicted. The analogy to the heads of insurance companies is not hyperbole. Does anyone believe that Donald Trump keeps the books for the Trump Organization?
There is a New York appellate court decision holding that section 175.10 “is not limited to employees or others having bookkeeping responsibilities but can be committed by those who supply erroneous information which results in false records.” Okay, so what?
Where is the evidence Trump himself supplied the “erroneous information” to be entered into the company records? And if in fact payment was made, how is the entry in the records of that payment “erroneous”?
I’ve heard a couple of legal ‘experts’ trying to defend the Indictment by claiming the payment was falsely entered on the books to ‘conceal’ that it was illegally made with campaign funds. I’ve explained before why you should take what TV ‘legal experts’ say with a grain of salt.
This is another example of why you should ignore them.
In 2018, the Federal Election Commission determined there was no evidence Trump used campaign funds to pay the hooker (real name Stephanie Clifford). The FEC dismissed “the allegations that Michael D. Cohen, Donald J. Trump, and Donald J. Trump for President, Inc., and Bradley T. Crate in his official capacity as treasurer violated 52 U.S.C. § 30114(b) by converting campaign funds to personal use through payments for Michael Cohen’s legal fees with respect to the activities with respect to Ms. Clifford.”
So the entries in the Trump records were not to cover up illegal use of campaign funds. Which brings us back to the question of what crime was Trump covering up with entries in the company records? The prosecution has not, and apparently cannot, answer that question.
The Indictment against Donald Trump does not appear to comport with the New York rule of procedure, because it utterly fails to provide Trump “fair notice of the accusations against him” — and charges misdemeanor crimes for which the SOL has expired.
Not being a member of the New York bar, or having a working knowledge of how to proceed when an Indictment is insufficient, I don’t know how Trump’s lawyers should proceed.
What I do understand, have working knowledge of, and have taught, are the ethical obligations of prosecutors in the American system of criminal justice. The United States Supreme Court says this on that topic, “[A prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.”
There is no more egregious misconduct by a prosecutor than knowingly falsely charging a citizen with a crime for political purposes. In my professional opinion, the Manhattan District Attorney who brought this Indictment should suffer the same fate as the North Carolina District Attorney who was permanently disbarred for “grossly mishandling a rape prosecution in which three Duke University lacrosse players were falsely accused”.
Gary Beatty lives between Florida and Pagosa Springs. He retired after 30 years as a prosecutor for the State of Florida, has a doctorate in law, is Board Certified in Criminal Trial law by the Florida Supreme Court, and is now a law professor.