Donald Trump’s first trial may well be the 34-count felony case brought by the New York District Attorney Alvin Bragg, in an indictment voted by a New York State grand jury on March 20, 2023. This case has been widely disparaged, even by some liberals, as only about “money to hide an affair” and a weak case involving an alleged federal crime with weak facts tried in a state court.
On the other hand, most observers seem to regard the pending case brought by Special Prosecutor Jack Smith as more important since it accuses the former president of conspiring to obstruct a constitutionally elected new president – and depriving Americans of votes counting in the 2020 election.
What is being overlooked is what Justice Department prosecutors – when Trump was president – publicly documented as the seriousness of the case. It can be found in the December 7, 2018, “Sentencing Memorandum” publicly filed by DOJ’s prosecutors in the prestigious Southern District of New York (called the “SDNY”). I was one of the attorneys advising the defendant at the time, Michael Cohen, Donald Trump’s longtime attorney and fixer. (I am no longer representing Cohen for the trial – he has experienced New York counsel.)
Here are the four public assertions made by these prosecutors in this public document that undermine the conventional wisdom that this case is only about sex and that the factual basis to convict Donald Trump is weak:
(1) The case involves issues that undermine “core” values of our democracy.
The SDNY prosecutors wrote that Trump’s complicity in paying money to block disclosure of his extra-marital affairs on the eve of the 2016 presidential election struck “a blow at a core value essential to democracy: transparency.” Allowing such crimes would show that “the political process belongs to the rich and powerful.” (Sentencing Memo, p. 23).
(2) DOJ prosecutors in effect state that Mr. Trump was criminally responsible.
The federal prosecutors wrote that Trump “directed” Michael Cohen to make the hush money payments a few days before the election for political reasons, which, these prosecutors found, made Cohen complicit in a crime – knowingly violating federal campaign finance laws.
(Sentencing Memo, p. 11.) They noted that Cohen “admitted” to their factual finding. (Many reporters mis-state that Cohen “said” this. No, the prosecutors said it – and they state that Cohen “admitted” it.) Thus, it should be beyond dispute that if Cohen was guilty of a crime in this scheme to conceal relevant information from American voters before a crucial presidential election, then certainly Trump is just as guilty since he “directed” him to do it according to Trump’s own prosecutors – if not more because the payoff was committed for his benefit and not Cohen’s.
There is no doubt these Trump DOJ prosecutors found there was a political motivation to making these hush money payments – making it an illegal campaign donation. The prosecutors wrote that the money was paid on the “eve” of the 2016 election and several times described the payments as politically motivated to prevent voters from learning about the alleged affairs.
(3) Bragg’s case does not depend solely on Michael Cohen’s testimony.
First, Cohen has been found to be a credible witness – most recently, explicitly by New York Supreme Court Justice Arthur Engeron in his February 15, 2024, written decision, finding Mr. Trump guilty of financial fraud. Second, the Trump DOJ prosecutors pointed out that Trump was complicit in a scheme to pay hush money to two women. In other words, we know from these federal prosecutors that there were at least two witnesses other than Michael Cohen who could have testified in the federal case as to Trump’s knowledge and involvement in the illegal hush money scheme to prevent voters knowing about the two alleged affairs just before the 2016 election. One was the chairman and CEO of a national tabloid magazine, whom the federal prosecutors stated Trump himself met with to discuss the scheme to kill negative stories about Trump to avoid disclosure before the election, including the threat of a former Playboy Playmate of the Month to go public just before the election about her alleged affair. The second witness is said by the prosecutors to be the magazine’s editor-in-chief, whom these prosecutors aver was aware of and involved in the scheme. (Sentencing Memo, p.12.)
(4) Trump’s checks of $35,000 per month written from his personal checking account were not “legal fees” as he claimed. They were “reimbursements” for hush money.
The prosecutors found that the Trump Organization “falsely” booked these Trump payments. During Michael Cohen’s February 27, 2019, public testimony before the House Oversight Committee, two of these Trump personal checks from his personal checking account written and signed by Trump while a sitting president were put on live television in the United States and around the world. (See photos of them here.) It was Justice Department lawyers working under Trump-appointed Attorney General William Barr, not locally elected Democratic prosecutors, who characterized them as illegal “reimbursements.” Republicans barely mentioned them, and these hush money checks by a sitting president concerning an illegal scheme before he was president flew under the radar of most of the national media. But there it is, on page 14 of the December 7, 2019, sentencing memo – hidden in plain sight – that these checks were “falsely” recorded as business expenses on the books of the Trump Organization.
Lest there be any doubt that Trump himself recognized the potential legal danger of this SDNY sentencing memo as reflecting on his potential criminal guilt: We learned in 2020 from a New York Times exclusive, and in 2022 from the book published by then-U.S. Attorney Geoffrey Berman, that Trump tried to expunge or “scrub” these incriminating words written by his own DOJ prosecutors. Attorney General Barr and others at DOJ reportedly pressured the SDNY prosecutors to delete these words and to “reverse” Michael Cohen’s guilty plea – this after Cohen served his time. Obviously, these efforts were not because Trump or Barr sympathized with Cohen’s plight.
The bottom line here is that that New York-based federal prosecutors made a determination that Trump and Cohen had violated federal campaign law. Trump was not charged federally with that crime, however, meaning that Alvin Bragg’s challenge is two-fold. First, he must establish that New York state laws regulating financial fraud were violated when Trump was involved in illegal federal campaign donations. And second, Bragg must show that when Trump falsely booked those hush money payments as “legal expenses” – which would normally be a misdemeanor in New York state law – he did so with the motive of concealing the other campaign finance crime under NY state law. If Bragg can do so, then the 34 entries that were “falsely” listed as “legal expenses,” instead of being 34 misdemeanors, become 34 felonies. That could be a lot of jail time if that is the jury’s verdict. And lest we forget: Trump cannot pardon himself for state crimes if he wins the presidency.
The ultimate irony is that if Trump is found guilty of the New York state crimes, it will be his own Justice Department prosecutors who provided clear factual findings establishing his guilt.
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Lanny Davis is the founder of the Washington, D.C., law firm, Lanny J. Davis & Associates. He is one of the first to use the concept of legal crisis management to solve client problems – operating at the intersection of law, media, and politics. He is a former special counsel to President Bill Clinton in 1996-98 and served on a privacy and civil liberties panel appointed by President George W. Bush. He has been writing his “Purple Nation” column for more than 13 years.
Posted from Real Clear Politics
