Posted by 
Donald Trump became America’s most prominent felon on Thursday, when a New York jury convicted him on 34 charges of falsifying business records.
That verdict has proven predictably controversial. New York’s case against Trump has attracted bipartisan criticism ever since Manhattan District Attorney Alvin Bragg indicted the former president last year. Of all the cases brought against Trump, New York’s charges have always looked both the least solid and the least serious.
The criticisms of Bragg’s case are worth taking seriously. And reasonable people can believe that Thursday’s verdict was wrong.
And yet, if New York’s case against Trump wasn’t a slam dunk, it wasn’t implausible either.
The prosecution’s argument rested on untested legal theories, not absurd ones. Contrary to the claims of prominent Republicans, Trump’s conviction does not prove that Democrats will stop at nothing to persecute their political adversaries. Rather, it proves that if a man perpetrates a wide variety of frauds over the course of decades — and routinely advertises his contempt for the rule of law — prosecutors may aggressively scrutinize the legality of his business records and get a bit creative in holding him legally accountable.
And the verdict also indicates that mounting an utterly incompetent defense can get such a man convicted of felonies, even when the prosecution’s case contains significant vulnerabilities.
It’s worth walking through the arguments for and against Bragg’s case to separate the reasonable objections from the delusional ones.
New York’s case against Donald Trump, briefly explained
On October 7, 2016, the world heard an audio recording of the Republican nominee bragging about how his star power allowed him to get away with grabbing women “by the pussy.” The next day, a representative for the adult film actress Stormy Daniels told the National Enquirer that she was prepared to speak about her own sordid and exploitative sexual encounter with Donald Trump.
Trump enjoyed close ties with the Enquirer, and the tabloid responded to Daniels by trying to broker a hush money agreement between her and Trump’s personal attorney Michael Cohen. To generate the cash necessary for quieting Daniels — and thus, averting a news story that would keep the Access Hollywood tape and Trump’s scummy sexual behavior in the headlines during the campaign’s home stretch — Cohen tapped his home equity and then routed the payment through a Delaware shell company. Later, Trump reimbursed Cohen for these payments, but he registered them as mere legal expenses.
In New York, it is a misdemeanor to falsify business records with “the intent to defraud.” And it is a felony to do so for the purpose of concealing another crime.
Prosecutors argued that Trump falsified various business documents in order to conceal the nature of his payments to Cohen with the the intention of defrauding others, and for the sake of concealing another offense — namely, a violation of an obscure New York state prohibition on conspiring “to promote or prevent the election of any person to a public office by unlawful means.”
Specifically, the prosecution argued that Cohen’s payment to Daniels was a de facto donation to Trump’s campaign, since the intention behind the payment was to abet his election by suppressing politically hazardous information. That payment’s size greatly exceeded the legal cap on individual donations to a candidate, and therefore constituted a violation of federal campaign finance law. And Cohen owned up to this crime when he pled guilty to campaign finance violations in 2018. Therefore, according to the district attorney’s office, Trump had conspired with Cohen to promote his own election by unlawful means.
The case against the case against Donald Trump
Critics of the prosecution took issue with nearly every element of this case. But their most prominent arguments can be summarized as follows:
1) Trump may have falsified business records, but he did not do so with an “intent to defraud,” in the legal sense of that term. As the National Review’s Andrew McCarthy argues, the Supreme Court recently confirmed that “intent to defraud” has a very specific and narrow legal meaning: It describes the intention to deprive someone of money, property, or some other concrete good through deception.
There is no evidence that Trump falsified business records for the sake of tricking any specific individual into giving him cash. But Bragg’s office argued that, under New York state law, “intent to defraud” can refer to deliberately misleading the government or voting public.
McCarthy argues that this is much too broad: If you can commit fraud without actually trying to “steal something in which people have a concrete interest,” then “any untrue statement a candidate makes” could be prosecutable fraud, since such statements deceive voters.
2) The claim that Trump falsified business records to conceal a separate crime rests on a dubious interpretation of an obscure and arguably inapplicable law. Legal analysts (from across the political spectrum) have long argued that the shakiest part of the prosecution’s case was the claim that Trump’s fraudulent paperwork was intended to cover up another crime.
After all, there is no law against paying your ex-lover not to speak with a tabloid about your sordid liaison. The prosecution’s case rested primarily on the assertion that the payment to Daniels violated federal campaign finance law.
There are two potential objections to this: First, as David French notes in the New York Times, the Department of Justice chose not to charge Trump with violating campaign finance law by arranging Daniels’s payoff, apparently concluding that the case would be difficult to win. Yes, Cohen did plead guilty to a campaign finance violation related to the Daniels payment. But a guilty plea does not have the same weight as a jury verdict, from the standpoint of legal precedent. And in any case, Cohen’s plea did not establish Trump’s guilt in the alleged scheme.
Second, Mark Pomerantz, a former prosecutor in the Manhattan DA’s office, has observed that it isn’t clear that a violation of federal law can qualify as “unlawful means” under New York state law. Before this trial, the question had simply never been adjudicated.
To its credit, Bragg’s office anticipated this problem, and argued that Trump not only promoted his own election through federal campaign finance violations, but also through other unlawful means, such as the falsification of separate business records and violations of tax law. But the validity of these supplementary charges is contested.
More fundamentally, some legal scholars argue that New York’s law against promoting a candidate’s election through unlawful means is preempted by federal law. “Federal election law, generally speaking, preempts state election law when it comes to a governing of federal elections, except there are exceptions whereby certain state election laws can come into play,” Jerry H. Goldfeder, a campaign finance lawyer, told CNN last year.
3) There is little evidence that Trump knew he had violated campaign finance laws, let alone that he knowingly tried to conceal having done so. Donald Trump does not have a reputation for being highly fluent in the details of public policy or the legal niceties of the political system.
As National Review’s McCarthy argues, “there is not a shred of evidence that Trump was even thinking about FECA (the Federal Election Campaign Act) in 2016-17, much less willfully transgressing it — which, to establish, prosecutors need to prove beyond a reasonable doubt that Trump was aware of a legal duty to comply with FECA’s contribution limits and reporting requirements, yet intentionally violated them.”
4) Even if Trump were guilty, the statute of limitations on his offense has already expired. The statute of limitations on misdemeanor business records falsification is two years; for the felony version, it’s five years.
Trump committed his alleged offense in 2017. But New York law holds that the clock on its statute of limitations stops when a defendant is “continuously” outside of the state. Therefore, it is plausible that the years Trump spent primarily in the White House and Mar-a-Lago do not count against the clock.
Still, even under this interpretation, Syracuse University law professor Gregory Germain argues that two years have certainly passed since Trump allegedly falsified records related to his hush money payment. In Germain’s view, it “is not clear whether the felony can stand when the misdemeanor is time barred” because the “felony statute requires showing that the misdemeanor was committed, since the felony is really a penalty enhancement on the misdemeanor.”
5) The prosecution was blatantly politically motivated, and the judge was politically biased. Finally, the prosecution’s skeptics point to all of its case’s dubious elements — and then to the surrounding political context — and argue that Trump has been politically persecuted. As former federal prosecutor Elie Honig notes in New York magazine, Alvin Bragg ran for district attorney on a promise to indict Donald Trump. And the judge in Trump’s trial, Juan Merchan, donated to “a pro-Biden, anti-Trump political operation,” in violation of a rule barring New York judges from contributing to political campaigns, according to Honig.
And there is indeed some evidence that Trump’s prosecution was highly selective. No state prosecutor has ever cited federal election laws as a predicate state crime. The Manhattan DA hardly ever brings cases in which the sole charge concerns the falsification of business records. And the statute prohibiting conspiracies to promote a person’s election through unlawful means has almost never been used: According to an analysis from the Washington Post, since 2000, no judge issued a single legal opinion concerning the statute until Trump’s trial began last year.
The jury is innocent
None of this necessarily means that the jury made a mistake. Indeed, some of Bragg’s harshest critics expected a guilty verdict, largely because Trump’s defense was wildly incompetent. As McCarthy wrote this week, “Team Trump has presented one of the most ill-conceived, self-destructive defenses I have ever seen in decades of trying and analyzing criminal cases.”
Rather than concentrating on refuting the weakest elements of the government’s case, Trump’s attorneys chose to contest obviously true claims that had no actual bearing on his guilt or innocence. For example, they sought to disprove the prosecution’s claims that Trump had engaged in an affair with Daniels and subsequently reimbursed Cohen for buying her silence.
Yet neither of those actions are illegal, in and of themselves. And the evidence that Trump did both those things is overwhelming. The likely GOP nominee has stated publicly, multiple times, that he reimbursed Cohen. And the idea that Trump would have agreed to pay $130,000 to bury an affair he didn’t have strains credulity.
By fighting these hopeless battles, Trump’s team gave the jury the impression that they were legally relevant — which would only be true if the shakiest parts of the prosecution’s case were valid.
Put simply, the former president prioritized brand management and political messaging above legal strategy. In the face of Trump’s bizarre and disorganized defense, an unbiased jury could easily have arrived at a guilty verdict — especially since the prosecution’s case was not as weak as many of its detractors suggest.
In defense of the prosecution
It is impossible to deny that Bragg’s office targeted Trump for investigation. Yet Trump gave New York plenty of reason for scrutinizing the legality of his business practices that have nothing to do with his politics. The mogul has been found civilly liable for fraud multiple times. There is copious public evidence that he committed tax fraud. And of course, he has demonstrated flagrant contempt for the rule of law in myriad contexts. It is not hard to argue that holding Trump accountable for any of his criminal offenses, even the most minor ones, is in the public interest.
The specific case brought against Trump in New York, meanwhile, is plausible enough.
First, although “intent to defraud” is construed narrowly under federal law, this is not the case under the laws of New York state. To the contrary, the Empire State’s jurisprudence has explicitly held that “In an indictment for first degree falsification of business records,” prosecutors are “not required to establish commercial or property loss.
As a team of legal analysts at the think tank Just Security note, New York courts have found “intent to defraud” in a wide range of false business records cases that did not involve financial damages to any individual, including instances in which defendants “made covert contributions to a political campaign, covered up an alleged rape, misled the relatives of a patient about the individual’s treatment, operated a motor vehicle without a license, obtained credit cards through false documents but with no proof of intention to miss payments, frustrated the regulatory authorities of the New York City Transit Authority, and much more.”
There is no denying that the prosecution’s attempt to convict Trump on the felony version of business record falsification required a legal theory with little established precedent. But there is a distinction between a theory that is contradicted by existing jurisprudence and one that is simply unprecedented. It is not clear that New York can cite a federal election law violation as a predicate offense in a state crime. But it isn’t clear that it can’t either. Trump will appeal the jury’s verdict, and higher courts will have the opportunity to settle the matter.
Similarly, it is possible that Trump never considered whether his payment to Daniels violated campaign finance law. But it is hardly inconceivable that this would occur to Cohen, a lawyer who had a personal interest in interrogating the legality of the payment that Trump aimed to arrange. And if it did occur to Cohen, he likely would have relayed this concern to his boss. Certainly, there is little question that both men understood that the payoff was politically motivated. The timing of the payment — coming right on the heels of the Access Hollywood tape and less than a month before Election Day — makes it plain that electoral calculation figured into the deal.
As for the statute of limitations, Gregory Germain is a legal scholar and I am not. But I have trouble understanding why there would be separate time limits on the misdemeanor and felony versions of business record falsification if the latter becomes unprosecutable once the statute of limitations on the former has expired.
There is no question that this criminal case was both the weakest and least serious that’s been brought against Trump since he exited the White House. One can reasonably argue, even after this week’s verdict, that New York’s charges against Trump should not have been brought. The same cannot be said, in my estimation, of the charges against Trump for mishandling classified documents, or manipulating state governments to subvert the 2020 election, or his role in the events of January 6, 2021. Unfortunately, he will not be brought to justice in any of those cases in advance of Election Day.
If the case against Trump in New York was not open and shut, it was not a world-historic travesty of justice either. And it certainly is not “evidence that Democrats will stop at nothing to silence dissent and crush their political opponents,” as House Speaker Mike Johnson has claimed.
State and federal prosecutors have brought myriad charges against Trump not because he is a Republican, but because he is a criminal. Other contenders for the 2024 Republican presidential nomination such as Ron DeSantis and Nikki Haley have not been hounded by Democratic district attorneys, even though they arguably would have been more formidable competitors to Biden than Trump himself.
Republicans have legitimate grounds for contesting Bragg’s case. But the notion that this week’s verdict indicts America’s entire judicial and political systems — and validates Trump’s self-conception as the helpless victim of baseless witch hunts — is ludicrous. Such charges should be dismissed.
