Former president donald trump was charged Tuesday with 34 felony counts of falsifying business records in connection with an alleged scheme to cover up two affairs with secret payments to “influence the 2016 presidential election.”
He accusation and statement of facts Revealed by Manhattan District Attorney Alvin Bragg says Trump falsified Trump Organization records to “conceal criminal conduct that withheld harmful information from the voting public during the 2016 presidential election.”
That criminal conduct was part of a scheme hatched by Trump, his attorney Michael Cohen, and then-National Enquirer editor David Pecker to prevent adult film actor Stormy Daniels and model Karen McDougal from going public with their stories of past affairs with Trump. in the last weeks. of the 2016 presidential campaign.
There are novel elements in this case that could complicate Bragg’s legal path to conviction as they arm Trump and his allies with talking points about an allegedly overreaching prosecutor.
Falsifying business records is often charged as a misdemeanor, but can amount to a Class E felony under New York State law if committed in conjunction with another crime. As Bragg noted in his press conference Tuesday, the Manhattan district attorney’s office routinely files felony charges of falsifying business records in connection with another alleged crime.
In this case, Bragg stated that the underlying crimes that the false business records were intended to conceal included violations of state and federal election laws and further illegal misrepresentation related to business and tax laws.
The federal election law references the illegal campaign contribution to which Cohen pleaded guilty in 2018. The state election law Bragg noted makes it illegal to “promote or prevent the election of any person to public office by unlawful means ”. Other illegal misrepresentations include those admitted by AMI Inc. into its own company records. about his payment to McDougal and by Cohen regarding his tax returns.
ANGELA WEISS via Getty Images
Trump’s lawyers will most likely seek to challenge the use of federal and state election laws in this case.
No previous felony prosecution by the Manhattan district attorney for falsifying business records has been based on federal campaign finance charges. Such federal charges are not prosecuted by state and local prosecutors, but by the Department of Justice. Bragg is likely to argue that he is not bringing such charges, but is referencing the crime Cohen admitted to in his plea agreement.
Similarly, Bragg’s reliance on a state election law also presents a challenge since Trump is running in a federal election, not a state election. State election law takes precedence over federal election law for federal elections. But since Bragg doesn’t press charges under this statute, it’s unclear if that will matter.
Bragg’s strongest case may be the additional false statements made by AMI and Cohen. Both admitted in court to making false statements in their business and tax records, respectively, and did so as part of the scheme to silence women and protect the Trump campaign.
The scheme involved Cohen paying Daniels $130,000 to buy his silence in the final weeks of the 2016 campaign, while AMI, the parent company of the National Enquirer, bought the rights to McDougal’s story for $150,000 with a promise to publish his story. history. But, in a scheme known as “catch and kill,” the Enquirer never ran McDougal’s story.
Trump eventually reimbursed Cohen for the payment to Daniels through monthly payments disguised as legal retainer payments. But there was no contract for a legal advance. These are the origin of the 34 charges against Trump for falsifying business records.
While neither the indictment nor the statement of facts explicitly say what the other offense is that elevates the charges of falsifying business records to felonies, it does present facts about the offenses admitted by Cohen and AMI.
Cohen pleaded guilty in 2018 to making an illegal campaign contribution as part of the scheme. Since the $130,000 payment to Daniels was made solely to assist in Trump’s election, Cohen’s donation constituted an unlawful excessive contribution to the Trump campaign committee, according to Cohen’s guilty plea.
“This payment was illegal, and (Cohen) has since pleaded guilty to making an illegal campaign contribution and served prison time,” Bragg writes in the statement of facts.
TIMOTHY A. CLARY via Getty Images
AMI “admitted that the payments were illegal,” argues Bragg, in its 2018 non-prosecution agreement in which the company stated it bought McDougal’s story on false premises, as the National Enquirer never intended to publish his story. .
In addition, Bragg points out that these illegal payments were made with the knowledge and in coordination with Trump.
The plan allegedly began in August 2015, two months after Trump announced his campaign, when Pecker told Trump and Cohen that he would work as their “eyes and ears” to seek out negative stories and help squash them. Pecker also agreed to run negative stories about opponents of Trump’s primary and general elections.
In June 2016, Pecker approached Trump and Cohen after McDougal came to him to sell him the story of his affair with Trump from 2006 to 2007. The three men discussed how to buy their silence. AMI eventually bought the rights to her story with the promise of “two magazine cover stories…and a series of articles to be published under her byline,” as long as she remained publicly silent about the alleged Romance.
But the Enquirer never ran a story on McDougal’s allegations or published anything under his own byline. AMI mischaracterized the payments to McDougal on its own books in violation of New York state law, Bragg claims.
Whether these legal challenges present problems for Bragg in the courtroom remains to be seen. But they will be used to fuel attacks by Trump and Republicans in an effort to undermine the first criminal charges filed against a former US president.