It is simultaneously too much and too little.
This is the fifth and (one hopes) final installment of my five-part review of Manhattan DA Alvin Bragg’s indictment of Trump. The indictment charges that Trump made false entries on the Trump Organization books regarding his hush-money payments, made through attorney Michael Cohen, to porn actress Stormy Daniels to cover up Trump’s alleged affair with her. Part One of this series dealt with the statute of limitations. Part Two addressed how Bragg must stretch the law to transform misdemeanor false entries into felonies by claiming that they covered up another as-yet-unidentified crime — without which his whole case fails the statute of limitations. Part Three looked at more specific problems with Bragg trying to enforce federal campaign-finance rules. Part Four delved, with an additional sidebar into the New York caselaw, into why Bragg hasn’t really even laid out the basic elements of his case, which require a plan to defraud someone who would be expected to read the false entries. There may be additional problems of proof, but those are likely to emerge only if this case gets to trial. And we may yet see procedural maneuvering to get at least the federal issues heard by a federal court.
For now, however, I’ll wrap up with the problems with the indictment itself. It is simultaneously too much and too little. The “too much” part is how Bragg stretches eleven installment payments of reimbursement for a single debt into 34 separate felonies. Counts One through Four of the indictment present an especially egregious example of overcharging. On February 14, 2017 (a date doubtless chosen by Trump and Cohen because they are such hopeless romantics about porn-star-affair hush money), Cohen sent Trump an invoice, and Trump wrote him a check, which was recorded in two places in the Detail General Ledger for the Donald J. Trump Revocable Trust. Bragg charges this as four separate felonies: one for the invoice, one for the check, and one for each of the ledger entries. I’m surprised he didn’t charge Trump in a separate count for every zero on the check.
Andy McCarthy explains why this kind of overcharging, in addition to creating a misleading picture of pervasive criminality for the public, also presents an unfair risk that the jury will “compromise” and only convict Trump on a few of the charges, even though they are basically all the same crime. Also, there are rules, both constitutional and statutory, against doing this sort of thing, and Bragg is at serious risk of violating them. Under the double-jeopardy clause of the Constitution, you cannot be charged twice for the same crime. It has been recognized since the Supreme Court’s decision in Blockburger v. United States, (1932), that double jeopardy is at issue not only when the same defendant faces successive prosecutions for the same crime, but also in how indictments pile up multiple charges. The Blockburger rule is that two crimes are the same if they depend upon proof of all the same elements. There are two mirror-image problems under Blockburger: duplicity and multiplicity.
(Allow me a moment of nostalgia: In law school, I spent a month interning for a federal judge in January 1996. The one published opinion I worked on addressed the Blockburger duplicity and multiplicity tests.)
As the New York Court of Appeals explained in People v. Alonzo (N.Y. 2011), “An indictment is duplicitous when a single count charges more than one offense. It is multiplicitous when a single offense is charged in more than one count.” Multiplicity is the “too much” part of this indictment — the repetitious counts all arising from the same events and the same scheme. As the Court of Appeals in Alonzo explained, “If an indictment is multiplicitous it creates the risk that a defendant will be punished for, or stigmatized with a conviction of, more crimes than he actually committed.” Alonzo offers a textbook example of multiplicity: A single sexual assault was charged in separate counts for grabbing the victim’s breasts and her buttocks. This was a terrible crime — not two terrible crimes.
Consider the four February 14 counts. It is highly unlikely that Donald Trump personally makes entries on the general ledger — unlike the checks, which he personally signed. How would Trump cause there to be entries made on the general ledger? By writing the check that was charged as a distinct felony. Under a basic application of the Blockburger test, these are all ways of charging Trump with the same crime. Bragg may be protecting himself: It is possible that a court could find that the checks are not “business records” of the Trump Organization, and it is possible that a jury might decide that Trump did not “cause” the making of the general-ledger entries. But there is still no excuse for the charging of separate felonies for separate steps in a single causal chain of recordkeeping regarding the writing of a single check.
A decent judge would strike those counts, maybe even before hearing motions to dismiss the case. I once argued a civil case in New York state court where the plaintiff, a buyer of mortgage-backed securities, filed a complaint running over 600 pages against several different Wall Street banks and their affiliates. Both sides expended vast efforts briefing the motions to dismiss, but the judge announced at the argument that he had no intention of reading a 600-page complaint, and ordered the plaintiff to break the case up into one against each bank before he would consider motions to dismiss the pleadings.
Then there’s the duplicity problem. Andy put his finger on this regarding the failure of Bragg to specify what crime Trump is alleged to have been trying to conceal:
The Constitution’s Fifth Amendment guarantees that Americans may not be accused of a serious crime — essentially, a felony — absent an indictment approved by a grand jury. The indictment has two purposes. First, it must put the defendant on notice of exactly what crime has been charged so that he may prepare his defense. Second, the indictment sets the parameters for the defendant’s closely related right to double-jeopardy protection, also set forth in the Fifth Amendment. That is, by stating the crime charged, the indictment enables the defendant to claim a double-jeopardy violation if the prosecutor attempts to try him a second time on the same offense.
Here, the indictment fails to say what the crime is. Bragg says he is charging Trump with felony falsification of records, under Section 175.10 of New York’s penal code. To establish that offense, Bragg must prove beyond a reasonable doubt that Trump caused a false entry to be made in his business records, and did so with an intent to defraud that specifically included trying to “commit another crime or aid or conceal the commission” of that other crime.
Nowhere in the indictment does the grand jury specify what other crime Trump fraudulently endeavored to commit or conceal by falsifying his records.
That’s a problem in New York state court. As the Court of Appeals in Alonzo noted, “a duplicitous indictment may fail to give a defendant adequate notice and opportunity to defend; it may impair his ability to assert the protection against double jeopardy in a future case; and it may undermine the requirement of jury unanimity, for if jurors are considering separate crimes in a single count, some may find the defendant guilty of one, and some of the other.” This is not just a federal constitutional rule, but also a state statutory rule. Criminal Procedure Law § 200.30(1) provides that “each count of an indictment may charge one offense only.”
This, too, is not just a matter of double jeopardy; it is also a giant headache for the judge in managing the case. Suppose — as is likely — that the Trump legal team plans to file a motion to dismiss the indictment on the various grounds I’ve detailed in this series. If they knew what underlying crime Bragg was referring to (or what his argument for tolling the statute of limitations was), they could file with the judge a brief specifically addressing that argument. Because they are instead forced to play guessing games, they need to file a brief addressing every argument Bragg might make to sustain his indictment. This is a giant waste of labor and paper, and like a 600-page civil complaint, it chokes the judge and his law clerk trying to read the thing. It is entirely unnecessary work foisted by Bragg on everybody else, including the judge. There is no need for that.
Granted, the duplicity issue is not an insoluble problem, nor one that is that likely to result in dismissing all or part of the case. New York criminal procedure allows the defense to make a motion for a “bill of particulars,” defined in CPL § 200.95 as “a written statement by the prosecutor specifying, as required by this section, items of factual information which are not recited in the indictment and which pertain to the offense charged and including the substance of each defendant’s conduct encompassed by the charge which the people intend to prove at trial on their direct case.” The defendant has 30 days after arraignment to make a motion for a bill of particulars, and the prosecutor must file one in 15 days “or as soon thereafter as is practicable,” although prosecutors can dispute the propriety of such a bill, setting off a whole additional round of tree-killing and delay. Also — and here, I confess the limits of my knowledge of New York criminal procedure — in some systems, courts respond to these kinds of potential duplicity problems not by dismissing the counts but by demanding that the prosecutors settle on a theory at trial.
In any event, it is debatable how much of Bragg’s approach to the drafting of this indictment is incompetence, how much is sharp practice, and how much is just trying to paper over an abuse of the legal system that will collapse on close scrutiny. Trump himself is not helping the situation by heaping abuse on the judge. But the judge has a real responsibility and opportunity to stand up for the integrity of the legal process by telling the district attorney’s office in no uncertain terms that the indictment itself should be taken back to the drawing board.