At the Top of the Ticket, a Criminal Defendant

Trump may well be a convicted felon by Election Day. He's still the GOP nominee.

Yesterday, open statements were heard in the case of The People of the State of New York v. Donald J. Trump. The defendant—a fixture in the New York tabloids for decades, a former reality TV star, and, improbably, the 45th President of the United States—is accused of “the crime of FALSIFYING BUSINESS RECORDS IN THE FIRST DEGREE, in violation of Penal Law §175.10,” a Class E felony.

There are 34 counts in the indictment, each one specifying a unique instance of Trump running afoul of the law. For example:

The defendant, in the County of New York and elsewhere, on or about February 14, 2017, with intent to defraud and intent to commit another crime and aid and conceal the commission thereof, made and caused a false entry in the business records of an enterprise, to wit, an invoice from Michael Cohen dated February 14, 2017, marked as a record of the Donald J. Trump Revocable Trust, and kept and maintained by the Trump Organization.

And:

The defendant, in the County of New York and elsewhere, on or about September 11, 2017, with intent to defraud and intent to commit another crime and aid and conceal the commission thereof, made and caused a false entry in the business records of an enterprise, to wit, an invoice from Michael Cohen dated September 11, 2017, marked as a record of Donald J. Trump, and kept and maintained by the Trump Organization.

And:

The defendant, in the County of New York and elsewhere, on or about December 5, 2017, with intent to defraud and intent to commit another crime and aid and conceal the commission thereof, made and caused a false entry in the business records of an enterprise, to wit, a Donald J. Trump account check and check stub dated December 5, 2017, bearing check number 003006, and kept and maintained by the Trump Organization.

The Statement of Facts, which accompanies the indictment proper, does more to elucidate the crimes:

1. The defendant DONALD J. TRUMP repeatedly and fraudulently falsified New York business records to conceal criminal conduct that hid damaging information from the voting public during the 2016 presidential election.

2. From August 2015 to December 2017, the Defendant orchestrated a scheme with others to influence the 2016 presidential election by identifying and purchasing negative information about him to suppress its publication and benefit the Defendant’s electoral prospects. In order to execute the unlawful scheme, the participants violated election laws and made and caused false entries in the business records of various entities in New York. The participants also took steps that mischaracterized, for tax purposes, the true nature of the payments made in furtherance of the scheme.

3. One component of this scheme was that, at the Defendant’s request, a lawyer who then worked for the Trump Organization as Special Counsel to Defendant (“Lawyer A”), covertly paid $130,000 to an adult film actress shortly before the election to prevent her from publicizing a sexual encounter with the Defendant. Lawyer A made the $130,000 payment through a shell corporation he set up and funded at a bank in Manhattan. This payment was illegal, and Lawyer A has since pleaded guilty to making an illegal campaign contribution and served time in prison. Further, false entries were made in New York business records to effectuate this payment, separate and apart from the New York business records used to conceal the payment.

4. After the election, the Defendant reimbursed Lawyer A for the illegal payment through a series of monthly checks, first from the Donald J. Trump Revocable Trust (the “Defendant’s Trust”)—a Trust created under the laws of New York which held the Trump Organization entity assets after the Defendant was elected President—and then from the Defendant’s bank account. Each check was processed by the Trump Organization, and each check was disguised as a payment for legal services rendered in a given month of 2017 pursuant to a retainer agreement. The payment records, kept and maintained by the Trump Organization, were false New York business records. In truth, there was no retainer agreement, and Lawyer A was not being paid for legal services rendered in 2017. The Defendant caused his entities’ business records to be falsified to disguise his and others’ criminal conduct.

Lawyer A, of course, is Michael Cohen. The “adult film actress” is Stephanie Gregory Clifford, better known by her stage name, Stormy Daniels.

Alvin Bragg, the Manhattan D.A. who (somewhat reluctantly, it appears) brought the indictment, fills in the blanks in a press release:

During the election, TRUMP and others employed a “catch and kill” scheme to identify, purchase, and bury negative information about him and boost his electoral prospects. TRUMP then went to great lengths to hide this conduct, causing dozens of false entries in business records to conceal criminal activity, including attempts to violate state and federal election laws….

According to court documents and statements made on the record in court, from August 2015 to December 2017, TRUMP orchestrated his “catch and kill” scheme through a series of payments that he then concealed through months of false business entries.  

In one instance, American Media Inc. (“AMI”), paid $30,000 to a former Trump Tower doorman, who claimed to have a story about a child TRUMP had out of wedlock.  

In a second instance, AMI paid $150,000 to a woman who alleged she had a sexual relationship with TRUMP. When TRUMP explicitly directed a lawyer who then worked for the Trump Organization as TRUMP’s Special Counsel (“Special Counsel”) to reimburse AMI in cash, the Special Counsel indicated to TRUMP that the payment should be made via a shell company and not by cash. AMI ultimately declined to accept reimbursement after consulting their counsel. AMI, which later admitted its conduct was unlawful in an agreement with federal prosecutors, made false entries in its business records concerning the true purpose of the $150,000 payment. 

In a third instance—12 days before the presidential general election—the Special Counsel wired $130,000 to an attorney for an adult film actress. The Special Counsel, who has since pleaded guilty and served time in prison for making the illegal campaign contribution, made the payment through a shell corporation funded through a bank in Manhattan.

After winning the election, TRUMP reimbursed the Special Counsel through a series of monthly checks, first from the Donald J. Trump Revocable Trust—created in New York to hold the Trump Organization’s assets during TRUMP’s presidency—and later from TRUMP’s bank account. In total, 11 checks were issued for a phony purpose. Nine of those checks were signed by TRUMP. Each check was processed by the Trump Organization and illegally disguised as a payment for legal services rendered pursuant to a non-existent retainer agreement. In total, 34 false entries were made in New York business records to conceal the initial covert $130,000 payment. Further, participants in the scheme took steps that mischaracterized, for tax purposes, the true nature of the reimbursements.

A flow chart is helpfully provided, for those who are visual learners:

AMI is the parent company of the National Enquirer, the notorious supermarket tabloid. The former head of AMI, the appropriately named David Pecker, cut an immunity deal with the State of New York some years ago in exchange for his testimony regarding Trump’s knowledge of an illegal payment. He is expected to be the first witness called to testify.

We know Cohen did all of his because, as the Statement of Facts point out, Trump’s former personal attorney “has since pleaded guilty to making an illegal campaign contribution and served time in prison.” We know Trump had sex with Stormy Daniels because she said as much, explaining that the encounter happened during “Shark Week,” and that she went through with it because she hoped it might help her get booked on Celebrity Apprentice. (Trump has denied having sex with her in the press, where he lies almost constantly.) And we know about the second woman, his alleged mistress, the former Playboy model Karen McDougal, whom AMI paid $150,000 for exclusive rights to the story and her silence—the so-called “catch and kill.” The doorman, Dino Sajudin, peddled a story that, per Pecker, turned out to be false. But he, nonetheless, was paid for the rights to the story and his silence.

Reading through all the documents, the only detail that strains credulity is that Trump actually reimbursed Cohen for laying out the 130 grand. It is ironic that Donald would wind up getting indicted for the one time he didn’t stiff a hire.

---

A Class E felony is as low-rung as it sounds. This isn’t instigating a coup against our democracy, or making off with top secret documents, or bullying Georgia election officials to ensure that an election went his way. In the grand scheme of things, these counts are minor crimes. All it takes is one intractable MAGA on the jury who thinks this is a Deep State conspiracy, or that Stormy Daniels is some vindictive gold-digger, and Trump will skate.

Even so, a former POTUS is a criminal defendant. Let’s pause for a moment and—to use a phrase I abhor that was ubiquitous on Twitter seven years ago—let that sink in.

None of the other 43 previous presidents (Grover Cleveland was 22 and 24) were indicted for even a single crime, Ulysses Grant’s need for speed notwithstanding. Nixon likely would have been but was pre-emptively pardoned, so we’ll never know. A FPOTUS indictment, therefore, is unprecedented. And this is just the first of Trump’s criminal trials. There are three more pending. Not one, not two, but three: four, altogether. Four! That doesn’t even take into account the civil fraud case, where the State of New York is poised to seize almost half a billion dollars in assets from Trump pending appeal—and that assumes that the bond he secured winds up being legit.

All of this is bad enough. We elected—well, we didn’t; the Electoral College did, but still—this lifelong criminal as Commander-in-Chief, and he disgraced himself so thoroughly that he will likely spend the rest of his miserable life either in court or in prison. That’s yuge. That’s bigly bad.

In our collective defense, most voters did not know about Trump’s inveterate criminality back in 2016, despite the ample investigative reporting in the archives. This time around, ignorance, willful or otherwise, is no longer an excuse.

One of our two major political parties is going to nominate Donald J. Trump again as its presidential candidate. This will happen in 2024, this year—despite everything we know, despite everything that’s happened, despite the Republican nominee being legally obligated to spend most of the next month trying to stop himself from falling asleep or passing gas in criminal court. This would be funny if the stakes weren’t so high.

The GOP has made its desires clear. The party heavily influenced by fundamentalist Christians wants MAGA Barabbas. Was that story redacted from the Trump Bible?

But then, Barabbas, too, was an insurrectionist.

---

Photo credit: Still shot from a Buster Keaton silent film, with some edits.