Trump Indicted For 34 Felonies: It’s Not The Payout To Stormy, It’s The Pay Up To Cohen

donald trump

(Photo by Drew Angerer/Getty Images)

This afternoon, Donald Trump pled not guilty to 34 counts of first degree falsifying business records in a Manhattan court room. A mere six years after laundering a hush money payment to a porn star through his attorney Michael Cohen, Trump was criminally indicted for what prosecutors called a “conspiracy to undermine the integrity of the 2016 election.”

“These are felony crimes in New York state, no matter who you are,” District Attorney Alvin Bragg said in a press conference after the arraignment.

Most of what’s laid out in the statement of facts accompanying the indictment has been public for years. Prosecutors allege that “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.” The document describes the 2015 meeting  where Trump and Cohen enlisted David Pecker, then CEO of the National Enquirer’s parent company American Media Inc, to “act as the ‘eyes and ears’ for the campaign by looking out for negative stories about the Defendant and alerting Lawyer A before the stories were published” and to “publish negative stories about the Defendant’s competitors for the election.” 

The story of Michael Cohen’s reimbursement for the $130,000 hush money payment to Stormy Daniels through a series of $35,000 checks characterized as “retainers” is well known to even the casual news observer. And Trump observers will remember the payoff to former Playboy Playmate Karen McDougal, for the “life rights” to her story, as well as a separate payment to a New York doorman who alleged that Trump had fathered a child out of wedlock, both of which get a mention in the statement of facts.

What is most surprising is the indictment itself. Before last night, there was rampant speculation that the district attorney would charge for both second degree falsification of business records under NY PL § 175.05, a misdemeanor, and first degree falsification under NY PL § 175.10, a felony because the defendant’s “intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.” But the indictment includes no misdemeanors, and no conspiracy charges as was also speculated. This may be a risky gambit for the DA, because it requires him to prove “intent to defraud,” and also because the “other crime” here is conduct for which no one was ever charged. When asked about this at the press conference, Bragg made vague references to violations of “New York state election law, ” which makes it a “crime to conspire to promote a candidate by unlawful means,” as well to violations of federal election law.

If the court buys this theory, then he’ll have succeeded in convicting the former president of multiple felonies — assuming he can get around the five-year statute of limitations problem. If the court refuses to accept the election crimes as a predicate for first degree falsification, Bragg doesn’t even get to go home with a misdemeanor conviction as a participation trophy (which would have a two-year limitations problem of its own).

Least surprising of all was Trump’s conduct throughout. The former president started the day by shouting on social media: “THE RADICAL LEFT DEMOCRATS HAVE CRIMINALIZED THE JUSTICE SYSTEM. THIS IS NOT WHAT AMERICA WAS SUPPOSED TO BE!”

Then he immediately pivoted to fundraising.

Screenshot 2023-04-04 at 3.18.12 PM

Note that the defendant is 6’5″ in this photo, so you know it’s not real.

Trump was represented in court by his new attorney Todd Blanche, late of Cadwalader, Wickersham & Taft. He was also accompanied by attorneys Joseph Tacopina, Susan Necheles, and Boris Epshteyn, as well as his advisor Jason Miller and his valet Walt Nauta. Epshteyn occupies an odd space in Trump’s orbit, reportedly steering him into some of his more unwise lawsuits and recently coming into focus as a subject of major interest by Special Counsel Jack Smith for his role in both the fake electors scheme and the handling of classified documents. Similarly Nauta has been deposed about moving the boxes of records seized by the FBI into and out of the storage locker at Mar-a-Lago where Trump kept some of them.

Trump claims that he’ll be moving the case to Staten Island where they actually like him (LOL), while his namesake son posted pictures on social media of New York Supreme Court Justice Juan Merchan’s daughter, who worked on the Biden campaign (NOT LOL). So much for the court’s request that Trump refrain from social media posts which might foment unrest.

A rational defendant would shut the hell up immediately. But Donald Trump didn’t get where he is in this life by being rational, much less discrete. So he’s planning a press conference this evening to be carried on live television.

Elect a clown, get a circus. And then send him packing, and find that the circus is here to stay.

Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.


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