Trump Trial Notes

It is difficult to get the straight story on the current Trump trial since it is loaded with complexities and not completely explained by much of the media (intentionally or not.).  For instance, what exactly were the 34 counts that Trump was charged with?  After all, at the bottom of this was a $130,000 payment to lawyer Cohen.  How did that payment get to be 34 crimes?

To understand, there are two things to remember: 

In the corporate world, one does not simply write a check.  There is an invoice (bill) and then entries are made into the books (ledgers) and then an actual check is written.  It seems that each of those steps was considered a separate “crime.”

And then Cohen was not paid in one check but over several checks written between February 17, 2017 and December 5, 2017.  So, each check resulted in multiple crimes repeated multiple times, resulting in 34 crimes. 

Here are the first 4 crimes, all revolving around 1 check (emphasis added):

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:

(Crime 1) 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;

(Crime 2) made and caused a false entry in the business records of an enterprise, to wit, an entry in the Detail General Ledger for the Donald J. Trump Revocable Trust, bearing voucher number 842457, and kept and maintained by the Trump Organization;

(Crime 3) made and caused a false entry in the business records of an enterprise, to wit, an entry in the Detail General Ledger for the Donald J. Trump Revocable Trust, bearing voucher number 842460, and kept and maintained by the Trump Organization;

(Crime 4) made and caused a false entry in the business records of an enterprise, to wit, a Donald J. Trump Revocable Trust Account check and check stub dated February 14, 2017, bearing check number 000138, and kept and maintained by the Trump Organization.

Writing one check = four crimes.

Every time a new check was written, add three or four more crimes. 

If the whole bill had been paid with one check, there would only be 4 “crimes” and not 34.

The 34 crimes amount to an accounting disagreement as to how the payments were classified.  The prosecution claims the checks were falsely labeled as being for legal services. Trump’s lawyers claimed they were properly labeled because Cohen was serving as Trump’s attorney at the time. 

Would normal procedure (not involving Donald Trump) have been to negotiate a classification and pay any additional taxes (if there were any?)

Trump was accused of falsification of business records, which only requires someone to have “[made] or [caused] a false entry in the business records of an enterprise.”  Under New York law, that crime is a misdemeanor and it had already passed the Statute of Limitations so Trump could not be prosecuted on them, standing alone. 

The 34 misdemeanors become felonies if it’s proven the defendant falsified records “with intent to defraud that includes an intent to commit another crime or to aid or conceal the commission thereof.”

What was the second crime that made the misdemeanors into a felony?

Prosecutors alleged that the second crime was against New York’s election law: 

Election (ELN) CHAPTER 17, ARTICLE 17, TITLE 1

§ 17-152. Conspiracy to promote or prevent election. Any two or more

persons who conspire to promote or prevent the election of any person to
a public office by unlawful means and which conspiracy is acted upon by
one or more of the parties thereto, shall be guilty of a misdemeanor.  (Emphasis added.)

The second crime, necessary to make the 34 crimes a felony was a misdemeanor that Trump had promoted his election as President.

On November 8th 2016, Trump was elected President.

On January 20th, 2017, Trump was sworn in as President.

The first check and associated entries were not made until February 17th, 2017, after Trump was already President. 

How could entries made after Trump was elected and inaugurated have made a difference?  If the entries had been labelled “boinking a bimbo porn star”, it would have been embarrassing but would not have affected the election.  Labelling them lawyer’s fees had no impact on the election.

Ah, but Cohen cut the check for $130,000 just before the election and, in return, got a Non-Disclosure Agreement (NDA).  A conspiracy? 

First, Non-Disclosure Agreements are legal agreements.  There would not seem to be a crime.  The jurors had to determine whether a third crime was committed that made the NDA payment violate the election law.

Second, Cohen testified about a conversation he had with Trump on October 24th^, 2016.  But under cross examination, the defense produced text messages that the prosecution had initially hidden from the defense.  Why hide them?  Well…  The text messages written both before and after the phone call showed that the phone call was to Trump bodyguard Keith Schiller and lasted less than two minutes and was about harassing phone calls that Cohen had been getting.  Cohen claimed that he knew Trump was with Schiller.  The defense says Trump was not there. 

In any case, how much could have been said in such a short time about two subjects including an NDA that was legal?   Were they discussing a conspiracy about a legal agreement? 

Judge Merchan gave the jurors the option of finding that the “unlawful” action that violated the Federal Election Campaign Act was the NDA.

Bradley Alan Smith was initially nominated by President Clinton and  served as commissioner, vice chairman, and chairman of the Federal Election Commission (FEC) between 2000 and 2005. He is one of many election law scholars that have written that the NDA was not a violation of the federal election law.  He was scheduled to testify as such in the trial, which would have killed this tactic by the prosecution. Judge Merchan ruled that “Smith may not testify…or offer an opinion as to whether the alleged conduct in this case does or does not constitute a violation of the Federal Election Campaign Act ("FECA").   As Smith later explained, "Judge Merchan has so restricted my testimony that defense has decided not to call me.” 

So, Smith could testify but not on the central issue, of which he was an expert.  That explanation to the jury was left to Judge Merchan, who was not an expert.

The judge instructed the jurors that they must agree on the first and second crimes—that Trump falsified business records in order to cover up the election crime—for him to be convicted, but they can differ on the third crime, or the “unlawful means” to influence an election. Some jurors could think campaign finance laws were broken and others could think there were tax violations, for instance. 

So much for that quaint legal tradition about unanimous decisions.

In summary, the prosecution turned questions about accounting classifications of a legal agreement into the crime of influencing an election, after the election had occurred.

There is much more about this.  Serious constitutional issues.  For more on them, go to:

Trump Guilty Verdict: “There are some serious constitutional problems with this case” (legalinsurrection.com)