The simple fact is that DA Alvin Bragg can’t prove his case.
The simple fact is that DA Alvin Bragg can’t prove his case.
L et’s put aside all of the constitutional objections to Alvin Bragg’s prosecution of Donald Trump — objections premised on the shredding of both federal and state due-process guarantees. Trump ought to be acquitted for the simplest of reasons: Prosecutors can’t prove their case — neither the case the grand jury actually charged, 34 counts of felony business-records falsification, nor the case that elected progressive Democratic district attorney Alvin Bragg has imagined into existence, an uncharged conspiracy to steal the 2016 election by suppressing politically damaging information in violation of federal campaign-finance law.
For all the heated rhetoric, there is not much meaningful disagreement about the facts of the case. At least, that is, insofar as we’re talking about conduct that bears on the only significant issue, the question of whether Trump fraudulently caused his business records to be falsified.
To be sure, there’s a he-said/she-said dispute between the former president and porn star Stormy Daniels about whether they had a sexual encounter 18 years ago — eleven years before the alleged crimes occurred. But that’s beside the point, which is why Judge Juan Merchan committed reversible error by allowing Daniels’ explosive testimony about such ancient history. It is uncontested that (a) Daniels claimed the encounter happened; (b) in October 2016, shortly before the presidential election, Trump fixer Michael Cohen negotiated a non-disclosure agreement (NDA) and laid out $130,000 to purchase Daniels’ silence; and (c) Trump reimbursed Cohen in monthly installments in 2017. Consequently, Daniels’ graphic testimony about an extramarital tryst — elicited by Bragg’s prosecutors with Merchan’s complaisance, for the transparent purpose of sullying Trump in the eyes of both the jury and the electorate — was of negligible probative value. By comparison, the impact of unfair prejudice and jury confusion was so immense, any competent, unbiased judge would have excluded the testimony.
Predictably, a mistrial has been denied. So, let’s stick with the relevant, undisputed facts of the case. Merchan should dismiss the case because it is already apparent that Bragg cannot prove criminal intent beyond a reasonable doubt. After three weeks of the prosecution’s case, I now believe the evidence would be insufficient even if Bragg had charged only New York’s misdemeanor business-records-falsification offense. As for the felony offense, as to which prosecutors must prove willfulness beyond a reasonable doubt (a heightened standard of scienter, i.e., criminal intent), Bragg’s evidence is woefully inadequate.
Falsity and Fraud Are Not the Same Thing
Let’s start with the misdemeanor, because it is a “lesser-included offense” contained within the felony (the “greater offense”) — meaning that if prosecutors cannot even prove the misdemeanor, the court should dismiss the case without even considering the charged felonies (all 34 of them, totaling to a potential 136 years’ of imprisonment . . . for bad recordkeeping). Under §175.05 of New York’s penal law as relevant here, to establish the misdemeanor, prosecutors must prove that the accused “with intent to defraud . . . causes a false entry [to be made] in the business records of an enterprise” (emphasis added).
I have highlighted two elements of the crime because they are discrete and it is vital not to conflate them. If fraudulent intent could be assumed from the fact than an entry is false, the legislature would not have added the words “with intent to defraud.” Both elements must be proved — falsity and fraudulent intent.
When something is false, that merely means it is wrong or inaccurate, perhaps intentionally, perhaps not. Still, even if a business record is falsely represented in a knowing and intentional manner, that doesn’t necessarily mean it was falsely represented with a specific intent to commit fraud. To the contrary, fraud involves much more than falsity; there must be a deceptive scheme, undertaken to obtain money or some kind of property. (Logically, one can “obtain” money or property by deceptively avoiding a legal obligation to pay money or part with property — hence, such schemes as tax fraud.)
On the facts of Trump’s case, it is necessary to draw this distinction because, while Bragg can arguably establish that at least some of the records at issue are false, there is scant evidence of fraudulent intent.
Falsity Evidence
To reimburse Cohen, the Trump Organization established the following three-step system: Each month in 2017, beginning in February when the arrangement was finalized, (a) Cohen was to provide an invoice, (b) the invoice would be paid by check, and (c) an entry would be made on the Trump Organization’s books. According to Bragg, the Trump records are false because the payments to Cohen really constituted repayment of a debt incurred in October 2016 (the $130,000 paid for the Stormy NDA), but they were made to appear in the records as if Cohen was being paid for ongoing legal services provided in 2017.
As I discussed on X/Twitter this week with our old friend Byron York (see here and see also Byron’s Washington Examiner column), Bragg is going to have a hard time proving most of these records are false.
The checks don’t say anything about why Cohen was paid, just that he was paid $35,000 per month, which is true. (The first payment was for $70,000 because it covered January and February 2017.)
As for the entries in the Trump Organization records, testimony at trial this week showed that the bookkeeping department logged payments as “legal expenses.” Not much thought went into this: The bookkeeping department was using a drop-down menu on a computer program designed in the early nineties, and routinely put payments to lawyers and related expenses in this general category. That aside, these were legal expenses. Cohen was Trump’s lawyer when he negotiated the NDA with Daniels’ lawyers and paid the $130,000 to close the deal. That’s an expense incurred in a legal transaction.
I think Bragg has a stronger case when it comes to Cohen’s monthly invoices. Take the first one, which is consistent with others (except that it’s for two months, rather than one). Cohen wrote to Trump Organization financial chief Allen Weisselberg:
Dear Allen, pursuant to the retainer Agreement, kindly remit payment for services rendered for the months of January and February, 2017.
January 2017, $35,000.
February 2017, $35,000.Thank you. Michael Cohen.
In the invoices, Cohen indicates that he is being paid for “services rendered for” the month(s) set forth, pursuant to a “retainer agreement.” The commonsense construction of this is that Cohen is on retainer as a lawyer and is billing for services provided during the month when the invoice is submitted. This is Bragg’s best point: The reimbursement for the 2016 Stormy NDA was not for ongoing legal services. Moreover, Cohen will presumably testify that there was no written retainer agreement and that he was not doing ongoing legal work; although he has deep credibility problems, one assumes those things are true since, at least thus far, we’ve seen no sign that a written agreement or evidence of legal work done by Cohen exists.
Still, this is no slam-dunk for Bragg on the issue of falsity.
While Trump undoubtedly approved the reimbursement of Cohen, it’s not clear what, if anything, he knew about the details of how the installment payments were being prompted and booked. While retainer agreements should be in writing, they don’t have to be. In addition, there are different types of retainers: In some, a total amount is agreed upon and then the lawyer bills in installments as he does the work at some agreed upon rate; in others, the client is paying not for work but for the possibility of work — i.e., for the lawyer’s commitment to be available if needed. Here, regardless of whether he was doing work for Trump, Cohen was holding himself out as Trump’s lawyer (he had left the Trump Organization and was hoping to cash in as a private lawyer with highest-level government connections). It could be that Cohen was on retainer and prepared to act as Trump’s lawyer in 2017, but ultimately was not needed.
And then there’s how we get to $35,000 per month. Obviously, Bragg cannot contend that the $420,000 in total payments to Cohen were solely reimbursement for the $130,000 Stormy payment. In addition to the NDA money, Cohen laid out $50,000 in 2016 for “tech services” from a communications firm called Red Finch Solutions (the Wall Street Journal reported that Cohen had tried to rig polling in Trump’s favor). These two reimbursements ($130,000 and $50,000) were “grossed up” by the Trump Organization — meaning they were doubled (to a total of $360,000) so that if it turned out Cohen had to pay taxes, he would still be made whole.
That fact helps Bragg argue that the entries were “false”: They were made to appear like a taxable event (lawyer’s fees are taxed as income) rather than a non-taxable event (repayment of a no-interest loan). Yet, the entries are also consistent with booking payments as legal expenses — payments to a lawyer who was holding himself out as (a) Trump’s lawyer (to generate business) and (b) available to Trump if needed.
Finally, $60,000 was added to the “grossed up” reimbursements and vaguely regarded as a “bonus” for Cohen — that’s how we get to the total of $420,000, disbursed in twelve monthly installment payments of $35,000. What’s a bonus? It could be retrospective recognition of past services; but it could also be prospective expectation that Cohen, in his then-new capacity as a private lawyer who’d just left the Trump Organization, would continue to serve Trump as needed.
If the latter is how the Trump Organization saw it, was it really false to record invoices that referred to a “retainer agreement” and “services rendered”? In fairness to Bragg, it is not unreasonable to conclude that, even if accurately booked as “legal expenses,” the invoices were false if there was no written retainer agreement and no legal services were rendered — although, to repeat, Trump could counter that a retainer need not be in writing and the only “service” he wanted was for Cohen to be available if needed.
Intent to Defraud
Nevertheless, as explained above, even if we stipulate for argument’s sake that the invoices are false records, mere falsity is not enough. Bragg must prove beyond a reasonable doubt that Trump had fraudulent intent. I don’t see any evidence of a deceptive scheme to deprive anyone, or any government, of money or property.
Bragg’s fever dream, which he’s trying to spin into an actionable conspiracy offense, is that Trump stole the 2016 election. But that’s partisan hyperbole, not a legal theory. New York has no crime of “election theft”; in the criminal law, there can be no conspiracy unless the objective of the conspiratorial enterprise is a crime.
By Bragg’s lights — to the extent I can wrap my brain around his contention — Trump schemed to deprive the nation of a Hillary Clinton presidency. Now, NDAs are lawful, and Trump had no legal obligation to disclose the embarrassing information the NDA concealed. And the New York County DA does not represent America; Bragg’s only jurisdiction is Manhattan, where Clinton won by close to 80 percent, so Trump didn’t even metaphorically “steal” anything in the Big Apple. But put all that aside. The simple legal fact is that a deceptive scheme to acquire the sort of gnostic, intangible “property” at stake in “election theft” is not the intent to defraud that New York penal law contemplates.
Plainly, the misdemeanor statute contemplates falsifying business records in order to commit real-world, garden-variety fraud — such as deceptive schemes to evade taxes or gouge customers. Viewed in that light, the payment of Cohen is the antithesis of fraud. That is, the Trump Organization paid him double what he laid out for the Stormy NDA to make certain that the tax authorities would not be deprived of funds by dint of its paying him through 2017 as a working lawyer.
Even if Cohen’s invoices are deemed false (and note that Bragg never charged Cohen for falsifying records), there is no evidence of a scheme to defraud. Without such evidence, Bragg can’t even prove misdemeanor falsification of business records.
Criminal Intent and Willfulness
Without establishing the basic misdemeanor, Bragg has no hope of proving beyond a reasonable doubt the felony charged 34 times in the indictment — falsification of records in connection with an “intent to defraud” that included “an intent to commit another crime or to aid or conceal the commission thereof” — under §175.10.
I am not going to belabor how outrageous it is that, to this day, Bragg has not planted his feet on what crime Trump supposedly intended to commit or conceal by fraudulently falsifying his records. Again, the point here is to assess the strength vel non of the evidence.
Here, it is important to mention a couple of criminal-law principles that Bragg has turned on their heads.
First, Bragg has argued, and Merchan has accepted, the premise that he needn’t produce much incriminating evidence because he only needs to show that Trump intended to commit or conceal some crime, not that he actually committed such a crime. In advancing that flawed proposition, the crime Bragg appears to be relying on is a federal campaign-finance offense. (I similarly will not belabor the point that Bragg has no jurisdiction to enforce federal law.)
Bragg’s theory is pretty much the opposite of how it works. When prosecutors seek to convict someone over an alleged intent rather than an alleged act, the criminal law demands more-exacting evidence, not less. It’s easy to grasp why. When the crime is an act — say, bank robbery — there is no ambiguity about intent; when there is obviously no room to claim accident or mistake, people are assumed to intend the consequences of their actions. By contrast, if a prosecutor seeks to criminalize a mere intention under circumstances in which there is no completed criminal act, then there is often lots of ambiguity. Ergo, the law demands strong evidence that the defendant truly intended to commit a particular kind of crime and took purposeful steps to carry it out, even if the effort was unsuccessful. If Bragg is saying Trump merely intended to commit some crime, he needs convincing evidence of Trump’s knowledge of criminality and specific intent to commit it. He needs more proof, not less.
Second, when especially complex areas of law, such as tax law, are involved, there is always a danger that people will fail to comply, not because they are intentionally defying the law, but because they are baffled by its esoterica. To guard against criminalizing innocent non-compliance, Congress adds a willfulness requirement.
This is the highest scienter provision in the law. To establish that an accused acted willfully in a complex area of law, prosecutors must prove beyond a reasonable doubt that he intentionally violated a known legal duty. That doesn’t mean he had to know the precise legal statute involved; but he had to be generally aware of a legal obligation and purposely flout it.
Campaign-Finance Laws
Federal campaign-finance laws are abstruse, so Congress unsurprisingly requires prosecutors to prove willfulness beyond a reasonable doubt in criminal cases involving them. Bragg can’t come anywhere close to providing such proof with respect to Trump’s supposed “intent” to violate the laws regarding disclosure of campaign expenditures.
Bragg contends that Trump paid money to conceal damaging information (Stormy’s allegation of a tryst) that would have harmed his election bid. Even if that’s true, to bury information in the context of a campaign is not the same thing as willfully transgressing the campaign-finance laws. There is no evidence that the campaign laws factored into Trump’s thinking at all. To the contrary, the evidence cuts the other way.
Bragg’s prosecutors have made much of Trump’s hands-on management style, his penchant for watching every penny and minimizing costs. If, as Bragg maintains, Trump believed that the Stormy NDA and the reimbursement of Cohen arising out of it were campaign expenditures under federal law, there is no reason to believe that Trump would have paid them out of his own pocket; he would instead have used campaign funds. He could easily have had his campaign pay for the Stormy NDA and mark it down as “legal expenses” on the next required FEC disclosure form; that would have been no more sneaky than marking it down as “legal expenses” on his corporate books — and he’d have saved money. There are only two credible reasons why he wouldn’t have used campaign funds: He was convinced that the payments were not campaign expenditures or, more likely, he wasn’t thinking about campaign-reporting requirements at all. Either way, to allege Trump acted willfully is far-fetched, to say the least.
Add to this that the FEC — a federal agency that actually has jurisdiction to enforce the campaign laws and expertise in applying them — investigated Trump and decided not to proceed against him. Why is that important? Because the FEC is in charge of civil enforcement. The civil burden of proof of a violation is a mere preponderance of the evidence, a significant step down from the burden on prosecutors to prove criminal offenses beyond a reasonable doubt. If the FEC concluded that it could not prevail against Trump on a civil-law standard, it is absurd to think he could be proved guilty on the daunting criminal-law standard. No doubt that is why Trump was not indicted by the Justice Department — which, like the FEC but unlike Bragg, has expertise and enforcement responsibility in federal campaign law.
Finally, the feds didn’t charge Trump because, as a matter of law, NDA payments are not campaign expenditures. They are not generated by a campaign the way that, for example, polling and get-out-the-vote expenditures are. If Trump had never entered politics, he would still be a rich celebrity; Stormy could still have threatened to go public in hopes that Trump would pay up rather than risk losing a lucrative TV gig or high-profile real-estate project. By happenstance, the campaign gave her leverage, but that didn’t make paying her a campaign expenditure.
If there is profound legal doubt that an NDA payment is a campaign expenditure — and it is more than just doubt in this case — then Trump can’t possibly have acted willfully by not treating reimbursement for the Stormy NDA as a campaign expenditure.
To sum up, Bragg’s proof of falsity is paltry. His proof of fraud is non-existent. And if he had a scintilla of proof that Trump was even thinking about federal campaign law, let alone willfully flouting it, then he would have spelled it out in an indictment rather than playing his unconstitutional game of “guess what the other crime is.”
Wholly independent of the plethora of constitutional infirmities in the prosecution, it should be thrown out for the most basic of reasons: Bragg can’t prove his case.