Criminal law

Trump indictments and investigations require a new trial


Question: Can you describe the charges and what prosecutors must prove to secure a conviction?

A: Trump is charged with 34 counts of falsifying business records under New York law. He is charged with the criminal version of the crime, which requires him to falsify employment records in order to commit or conceal some other crime.

Each account originates from a specific business registry entry on a specific date between February 14 and December 5, 2017, and all relate to payments made to “Attorney A,” widely known as Michael Cohen, Trump’s lawyer before he took office. He took office in January 2017. Primarily, the business records relate to payments Trump made to Cohen, allegedly reimbursing Cohen for payments Cohen made in 2016, on behalf of Trump, to an “adult movie actress.” Prosecutors will try to prove these records are false because they purport to be payments for Cohen’s legal services, when in fact they are damages to Cohen after he paid $130,000 to the actress — who appears to be Stormy Daniels, though she is — like Cohen. His name was not mentioned in the indictment.

Given the information available to the public, it seems very likely that the prosecution could prove that these business records were willfully false, but that alone would only amount to a misdemeanor.

To prove the criminal version of the crime, prosecutors would also have to prove that Trump intended to create or conceal these false records to commit a different crime. It appears from the indictment – and the press conference held by Attorney General Alvin Bragg – that the “other offense” they have in mind is a Federal Election Act offense. Proving Trump’s intent to commit this kind of crime is likely to be more difficult – in essence, the prosecution is likely to allege that the payments were campaign expenses designed to mask unpleasant information that came to light ahead of the 2016 election.

But now it appears that the prosecution may be trying to prove that at least some of the alleged false records were intended to facilitate a different crime — an offense under New York state tax law. This may be easier for a state attorney general to prove than a federal election law offense.

Q: How much legal danger does Trump face?

A: Each of these charges carries a maximum penalty of four years. But realistically, there is probably a good chance that the judge will not sentence Trump to any prison time even if he is convicted of most of these crimes. Probation and a fine would not be an unusual sentence for a first-time offender convicted of a fairly low-level, non-violent felony.

Q: What strategies are Trump’s defense attorneys likely to use?

A: Based on Trump’s legal strategies in other contexts, I think the Trump team’s strategy will be to delay this trial with the prosecution’s pre-trial challenges as long as possible, through, for example, the indictment and grand jury challenges. The procedure that issued the charges, then the challenge to the prosecution’s disclosure of evidence before trial.

I would be very surprised if Trump’s defense team ever indicated that they are open to a plea bargain, under which, for example, Trump would plead guilty to some misdemeanor charges in exchange for dropping the rest. This wouldn’t be unusual in a routine case with a more typical defendant, but I would be shocked to see Trump personally plead guilty to even a minor charge in this case.

Q: How long can this case take? What kind of schedule can we expect?

A: Nobody can guess how long that will take, but it will certainly take several months, and I wouldn’t be surprised if it takes a few years – which means Trump may be able to delay any trial in this case until after the trial is over. 2024 elections.


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