Introduction: Media Causes Confusion
A rather sensible trial strategy may be pursued by Trump’s beleaguered lawyers in his hush money trial, just begun in New York City this morning with jury selection. No, not the obvious one: somehow convincing Trump to not take the stand in his own defense. The perhaps sensible idea has to do with the judge’s charge to the jury for their deliberations and an upcoming court discussion of what may actually be offered into evidence against Trump himself, for example, whether uncharged behavior in the present case can be used against Trump, like his comments about E. Jeanne Carroll, or about Judge Engoron that led to gag orders.
In this first of a series of posts, here’s a quick review of the basics first: Trump is charged with New York state law prohibiting falsifying business records, in this case, related to the so-called Stormy Daniels affair. In August 2018, Michael Cohen, Trump’s erstwhile “fixer,” pled guilty to federal crimes related to Trump’s case, although the federal charges differed, and importantly so, as they included two federal campaign finance violations. Today, Trump sat in court – and apparently nodded off – during day two of jury selection, which may take quite some time, consensus opinion is two weeks. Once the jury is impanelled, it’s off to the races with opening statements.
Due to confused and confusing media coverage, many misunderstand the resulting consensus media observation that this trial is primarily about simply falsifying business records related to a payoff to Stormy Daniels. This is why, I believe, so many believe the case is based on minor charges. Some ask, “So what, that he falsified records about a porn star payoff? “Where’s the huge crime that justifies indicting a former president so slight a matter?” The media reporting causes those questions to be not altogether ill-informed.
Confusion at Its Source
So, first, let’s attack confusion, and begin by looking at the New York statutes that underlie all 34 criminal charges. [All emphases added] (The two provisions below are from the New York Penal Laws and are set out in slightly different color blocks for reasons that will be clear later in this posting.)
§ 175.10 Falsifying business records in the first degree.
A person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.
Falsifying business records in the first degree is a class E felony.
§ 175.05 Falsifying business records in the second degree.
A person is guilty of falsifying business records in the second degree when, with intent to defraud, he:
1. Makes or causes a false entry in the business records of an enterprise; or
2. Alters, erases, obliterates, deletes, removes or destroys a true entry in the business records of an enterprise; or
3. Omits to make a true entry in the business records of an enterprise in violation of a duty to do so which he knows to be imposed upon him by law or by the nature of his position; or
4. Prevents the making of a true entry or causes the omission thereof in the business records of an enterprise.
Falsifying business records in the second degree is a class A misdemeanor.
Note that the grand jury indictment [See full text] that led to this trial alleged that Trump violated the first of the statutes listed above, NY Penal L § 175.10 (2022), the felony. Nowhere in the indictment was the second above listed misdemeanor statute mentioned, NY Penal L § 175.05 (2022). However, the possible interaction between these two provisions – felony vs. misdemeanor – has caused most of the confusion noted in the introductory section. And as you’ll see, it can be confusing, but not so much as the media has unfortunately made it, at times, appear.
Hopefully Not Making This More Confusing . . .
Section 175.10, in clause one provides: “A person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree . . .” Note that § 175.10, which sets out a felony, references the text of § 175.05, the misdemeanor provision whose full text is set out above in the second colored block. So, consequently, to convict a defendant of the felony (§ 175.10), the prosecution must prove, by necessity, for any of the 34 charges against Trump, at least one of the four misdemeanor elements of § 175.05. And that’s just for starters. (The Statement of Facts [See full text] which was issued by the prosecution at the time of the indictment one-year sets out facts that rely mostly upon documentary evidence that should prove adequate to the first task under § 175.05, the misdemeanor which he is not directly charged with violating, which as we’ll see in a future posting as I watch court action as the issues develop over the week ahead.
Stay tuned for Trump Hush Money Trial Coverage, No. 02.