By Lambert Strether of Corrente.
Patient readers, the events that have occurred have prevented me from delivering the encyclopedic message on The People of the State of New York -vs- Donald J. Trump, Defendant, which I’ve been looking for, although I guess I’ll have another bite at the Big Rotten Apple soon. Monday was the first day of Trump’s trial in Manhattan, which started among small crowds. The session was devoted to jury selection, although none were actually selected (“more than half of the 96 jurors called Monday said they could not be “fair and impartial” when it came to the former president“). For me, the most dramatic event was Trump falls asleep, albeit briefly, which might actually be strategically brilliant: Trump should talk to voters – and do his all-important A/B testing! — via Zoom at night, then sleep in court during the day! He could bring a pillow this type of pillow. It would also keep him out of trouble! (Also, Trump said Judge Merchan refused his request to attend his son’s graduation, while what Merchan I did, it was postponing a decision. Judge Merchan also said Trump is expected to appear in court next week. meaning he won’t be present when the Supreme Court hears arguments on his presidential immunity claims.)
This article will therefore necessarily be short and simple: I will examine the strange structure of Bragg’s case. There’s still a lot to say, but that’s all I have time for today. Oh, and my usual caveat: IANAL. I hope real lawyers will step in and correct all the mistakes, expand on this analysis, share their experience, strength and hope….. Oh. Sorry. Bad meeting.
First of all, the structure. From the Manhattan District Attorney’s press release: “District Attorney Bragg Announces 34-Count Indictment Against Former President Donald J. Trump“:
Manhattan District Attorney Alvin L. Bragg, Jr. today announced the indictment of DONALD J. TRUMP, 76, for falsifying business records in New York to conceal damaging information and illegal activities to American voters before and after the 2016 election. During the election, TRUMP and others used a “catch and kill” system to identify, buy and bury negative information about him and improve his electoral prospects. TRUMP then went to great lengths to cover up this conduct, causing dozens of false entries in business records to conceal criminal activity, including attempts to violate state and federal election laws.
The difficulty that Bragg’s press release glosses over is that the “catch and kill” system is not illegal. Falsifying business records East illegal, but it is a misdemeanor, except when committed in the course of another crime, when it becomes a crime (or, in this case, 34 crimes; Bragg inflated the numbers, just as Smith did with his secret documents). So what is this other crime? Surprisingly, Bragg doesn’t say this. (1) IANAL, but in my opinion “strange” is a fair word for this approach.
Bragg’s file, the press release states, includes two documents: the Chargeand the Statement of Facts.
All 34 counts in the Indictment are similar. Here is number 34:
As you can see, the charge constitutes a felony (“First Degree”) under Penal Law §175.10. Again, what makes it a crime? That the false entry was made with the intent to commit “another crime.” But this crime is not mentioned anywhere in the Indictment.
Let us now move on to the presentation of the facts. First, let me quote footnote 1 (of 1):
So we have an indictment whose degree (first/felony or second/misdemeanor) depends on unspecified “other crimes,” and we have a statement of facts that does not contain all of the facts relevant to the charges in the indictment. Wouldn’t it have been easier for Bragg to hand the court a blank ream of paper and say, “We’ll fill this out as we go along?” Again, IANAL, but I think “strange” is a fair word.
The remainder of the narrative is a commendable and thorough account of the flow of documents within the Trump Organization, and as a former documents specialist, I cannot resist quoting:
Checks and stubs bearing false declarations were stapled to invoices also bearing false declarations. Defendant personally signed each of the checks and had them returned to the Trump Organization of New York County. There, the checks, stubs, and invoices were scanned and stored in the Trump Organization’s data system before the checks themselves were detached and mailed to Attorney A for payment.
Sterling, but the key aspect of the statement appears in the first two (although oft-repeated) paragraphs:
“Criminal conduct” that violates what law? Not stated in the statement of facts and not charged in the indictment. The same goes for “illegal schemes,” “violated election laws,” and “misdescriptions for tax purposes.” How do these “facts” compare to claims or unsupported assertions? Trump must either have already been convicted of these crimes or be charged with them now. In the first case, the case must be cited. In the latter case, the accusation should appear in the indictment. Neither is true. Isn’t that strange?
Naturally, Trump’s defense team asked prosecutor Bragg about it: in particular “other crimes”:
Here is Bragg’s response in the relevant partwhich I usefully annotated:
(1) Can Franz Kafka pick up the white courtesy phone?
(2) Oh, so there’s no theory of the case in the indictment or statement of facts?
(3) No. Just no. You cannot refer the Defense to a fact to prove a charge. It is your prosecutor’s work.
Law360 Frank Runyeon summarized what these “other crimes” “could” be in plain English:
There’s a lot of discussion about the merits of accusing Trump of these hypothetical “other crimes,” and I’m sure I’ll have plenty to say about Trump’s other putative crimes when Bragg reveals what those other crimes actually are. For now, my layman’s view is that asking a state to enforce a federal law (in this case, the Federal Election Campaign Act) is crazy. Do we want states to enforce, for example, the Espionage Act? Really? There’s probably some sort of dividing line. Or?
Finally, here is a handy diagram that shows the structure of the Bragg case, via Asha Rangappa (former FBI Special Agent and Editor-in-Chief of Just Security). I added some useful annotations:
(1) The upper half of the diagram represents the Business Records folder, showing the document flows described in the Statement of Facts.
(2) The bottom half of the diagram represents “other crimes” that turn what would be misdemeanors into felonies. (Rangappa amusingly refers to this process, marked in blue, as “crime escalation.”) You will observe that to reduce felonies to misdemeanors, Trump’s defense team must segregate charges filed above the line red for “other crimes”. ” below. This will of course be more manageable when Bragg reveals what it is.
(3) The highlighted text implies that the “other crime” might be “conspiracy (uncharged).” This also seems strange, not to mention Kafka-esque. Could the “other crime” be a crime that Trump was only convicted of on another timeline? IANAL, so can this be true?
It will be interesting to see what the indictment and facts actually contain. are, when Bragg chooses to reveal them. Again, I hope real lawyers will share their views; After all, I’m just a humble blogger, and what I consider crazy can be perfectly normal and routine.
REMARKS
(1) I haven’t seen anyone argue that there is anything wrong with Bragg’s procedure here, but how is the defense supposed to prepare to defend their client against the crime that turns misdemeanors into felonies if we don’t tell him what this crime is?
