Share
In a scene reminiscent of nothing more than a chapter of Tom Wolfe’s “Bonfire of the Vanities,” former President Donald Trump was arraigned in a Manhattan courtroom on an indictment obtained by New York District Attorney Alvin Bragg.
As no doubt anticipated by Bragg, the event became the occasion of a circus of opposed protesting crowds and intensive all-day television coverage including perhaps only 60 seconds of video in which Trump was actually seen entering or leaving a door or an automobile.
The indictment has 34 counts, so it must be serious, right? Actually, no. The 34-count indictment is repeated iterations of a single underlying transaction — the repayment by Trump to his former attorney, Michael Cohen, of $130,000 that Cohen paid to Stormy Daniels aka Stephanie Clifford.
The payment was made to Daniels in connection with her claim of a voluntary encounter she had with Trump at a golf tournament in 2006. In 2016 when Trump was running for president, Daniels attempted to peddle to celebrity news outlets a story that she had had a voluntary sexual encounter with Trump.
For purposes of the current criminal charges, it does not matter if her story was true. It doesn’t matter if Cohen made the payment to buy silence or to settle a disputed claim. Finally, neither does it matter if Cohen initiated the payment on his own, hoping to ingratiate himself with Trump, or if Trump asked him to make the payment.
All these things are irrelevant as a legal matter. But of course the salacious details were catnip to the news media, as the Manhattan D.A. knew they would be. Print, broadcast, and online news stories frequently and inaccurately described Trump as being charged with paying “hush money.”
Rather, the indictment accused Trump of making entries in his personal records or the records of the Donald J. Trump Revocable Trust of the repayment describing it as “legal expense” rather than “hush money” or something of that sort. Trump repaid the money in 11 installments.
Reading the indictment is an unnecessarily daunting task.
Each count is in identical form except for the date and document description. Each count accuses Trump of the crime of falsifying business records in the first degree by making and causing a false entry in the business records of an enterprise with both “intent to defraud and intent to commit another crime and aid in the concealment thereof.”
The element of intent to commit and conceal another crime is essential to the district attorney’s case, since without that other crime, a false entry would be a misdemeanor with a two-year statute of limitations. The entries are all alleged to have been made in 2017.
For each of the 11 installment payments there is a separate count for filing the invoice from Michael Cohen, another count for entering the charge in a general ledger, and still another count for entering the information on a check stub. (That would be 33 counts but for one installment there are two ledger entries alleged.)
Astoundingly for such a case, none of the 34 counts names the “another crime” which the entries were supposed to aid or conceal. One of the first actions by the defense counsel will be a motion for a bill of particulars, requiring the prosecutor to specify and provide details about the “another crime” alleged in each count. That will be routinely allowed by the judge and the prosecutor will be required to specify and prove those details.
When the bill of particulars is filed, there will certainly be motions to dismiss. When asked at a press conference after the arraignment why the alleged “another crime” was not specified, District Attorney Bragg said simply that he wasn’t required to specify the crime. Not yet perhaps, but he will have to. If there were an actual state crime such as a tax or election law violation, it seems Bragg would have charged it in the indictment.
The Federal Election Commission and the Department of Justice have passed on any federal election law violation for the payment. The Hillary Clinton 2016 Campaign and the Democratic National Committee recently agreed to pay a $113,000 fine to the Federal Election Commission for misreporting expenditures for the infamous “Steele Dossier” as “legal expense.” The payments here, however, can hardly be viewed as political expenditures.
Trump’s reputation as a promiscuous man-about-town, well-burnished by decades of New York tabloid headlines, was sealed in October 2016 by the release of a recorded interview with Billy Bush of Access Hollywood in which Trump stated that, as a celebrity, he could grope any woman he chose.
Millions heard Trump’s paraphrase of “grope,” always partially bleeped out, as he stated he could just “grab ‘em by the (bleep).” After that, it’s hard to conceive that the Stormy Daniels revelations would move a single vote.
The political fallout from all this is difficult to predict. Trump’s most zealous core voters in the Republican Party seem energized by what they see as a politically motivated indictment. Even many moderates and independents who don’t like Trump view the indictment as a political misuse of the prosecutorial power. It seems unlikely though, that the indictment will change any votes.
The most likely result, in my view, is solidifying Trump’s chances of obtaining the nomination. If the Democrats are sufficiently devious, they may see Trump as the easiest candidate to beat in 2024.
Brian R. Merrick, a former Nahant resident, was a judge of the Massachusetts District Court for 25 years, including five years at the Lynn District Court, 1989-1994.
