By , Professor of Law

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Donald Trump’s criminal trial in New York begins today with jury selection.  The following is a summary and legal analysis of this very complicated case.

District Attorney Alvin Bragg alleges that, shortly before the 2016 presidential election between Donald Trump and Hilary Clinton, Trump made several arrangements to prevent the public disclosure of allegations against him that might negatively affect his election.

First, Trump arranged with American Media, Inc., the publisher of the National Enquirer, to “catch and kill” stories that might be embarrassing to Trump.  The National Enquirer paid for and killed two potential stories:  one from a doorman who alleged that Trump had fathered a child out of wedlock, which proved to be untrue, and a second from a former Playboy model Karen McDougal, who claimed to have had an affair with Trump during his marriage.

Second, and more importantly, for the actual charges in the indictment, Trump arranged with his then-lawyer and now chief nemesis, Michael Cohen, to pay $130,000 in “hush money” to Stephanie Clifford, known professionally as Stormy Daniels, who is described by Wikipedia as “an American pornographic film actress, director and former stripper,” to prevent her from disclosing a sexual relationship with Trump.

Trump disguised the hush money payments by having Cohen make the payments, and then reimbursing him using business entries that called the payments “attorney fees”.

Trump has never been charged with a crime for making the hush money payments or arranging with AMI to catch and kill stories.  The underlying charges were investigated by the US Attorney General’s office, and they decided not to bring criminal charges against Trump.

There has been some suggestion that the hush money payments might somehow violate federal election laws, although I have never understood how using one’s own money to pay for the non-disclosure of embarrassing allegations would violate the election laws, which are primarily concerned with the solicitation and use of campaign contributions by third parties.  Even if the government wanted to charge Trump now for violating the election law in 2016, those charges would likely be barred by the applicable statute of limitations.

The underlying case is somewhat like the criminal charges brought against former presidential candidate John Edwards, who was charged in 2011 with receiving more than $900,000 in illegal campaign contributions from friends in 2007-08 to make hush money payments to disguise his extramarital relationship and child from becoming public.  The Edwards case involved money from third parties, so the election law connection makes some sense.  Nevertheless, the jury found Edwards not guilty of violating the campaign finance laws, and the government decided not to further pursue the remaining charges that the jury was unable to decide.  Ironically, Jack Smith, the current special prosecutor in the federal classified documents and election interference cases, had directed the Edwards prosecution.

Instead of charging Trump with an underlying crime, District Attorney Bragg is charging Trump only with covering up an underlying crime.

NY penal law 175.05 makes it a “class A misdemeanor” to falsify business records with “intent to defraud.” Falsifying business records to commit a fraud becomes a Class E felony “when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.”  NY Penal Law § 175.10.

District Attorney Bragg’s indictment charges Trump with 34 felony counts, each of which relates to a business record disguising a payment made to Cohen as attorney fees.  The indictment alleges that Trump disguised the payments with intent to cover up another crime.  But the indictment does not say what that other crime is.

There are several layers that I believe District Attorney Bragg must show to convict Trump of committing a felony under Penal Law § 175.10.

First, Bragg must show that Trump made the false business records with intent to commit “fraud,” otherwise Trump would not be guilty of a crime at all, because falsifying business records for non-fraudulent purposes is not a crime under the statute.

It is not clear who Bragg believes Trump intended to defraud by falsifying these entries.  Presumably, Trump was trying to hide the allegations and/or the relationships from his family and/or the public to prevent the disclosure of embarrassing allegations or facts, but traditional “fraud” requires, among other things, showing an intent to receive financial benefits by misleading a victim, and the misrepresentations must cause an actual victim to suffer damages.  Fortunately for politicians, not all lies, misrepresentations, or nondisclosures constitute “fraud.”

The District Attorney has made public statements suggesting that Trump may have been hiding the payments as attorney fees to commit tax fraud, but neither that nor any other specifics regarding an intent to commit fraud is stated in the indictment.

Second, the District Attorney must show that the reason for Trump’s false entries was to commit or cover up a separate crime, presumably separate from the fraud.  If the separate crime is the election law violation, Trump would have had to know that the payment was an election law violation, and to have falsified the records to cover it up that crime.  It seems to me that the election law violation would be stronger, not weaker, by making it look like Cohen was the one making the payments for Trump.  Disguising the payments through Cohen made it look more like an election law violation by a supporter, not less.   Or was Trump trying to disguise the payments to prevent his family or the public from knowing about the embarrassing allegations, rather than covering up an independent crime?

I believe the District Attorney must show (1) that the payments were disguised as attorney fees to commit a fraud on someone, (2) that the underlying payments constituted an independent crime, (3) that Trump knew that the underlying payments constituted a crime, and (4) that the reason he covered up the payments was to disguise that crime.  Those are going to be hard things to prove.

Judge Merchan’s summary of the case for the jury glosses over all of these difficult statutory questions.  After being unable to get the parties to agree on the language of a statement to be read to the jurors to describe what the case is about, Judge Merchan decided to read the following statement to the jurors to summarize the case:

“The allegations reflect in substance, that Donald Trump falsified business records to conceal an agreement with others to unlawfully influence the 2016 presidential election. Specifically, it is alleged that Donald Trump made or caused false business records to hide the true nature of payments made to Michael Cohen, by characterizing them as payment for legal services rendered pursuant to a retainer agreement. The People allege that in fact, the payments were intended to reimburse Michael Cohen for money he paid to Stephanie Clifford, also known as Stormy Daniels, in the weeks before the presidential election to prevent her from publicly revealing details about a past sexual encounter with Donald Trump.”

Judge Juan Merchan’s statement fails to explain when it is a crime to “unlawfully influence” an election?  Obviously, all politicians attempt to influence voters to vote for them.  Politicians regularly misstate facts and fail to disclose facts during their campaign.  The law has never allowed members of the public or the government to bring claims for fraud against politicians who make misleading or even downright false statements; indeed our laws broadly protect campaign speech under the First Amendment.

Neither the Court nor the District Attorney has made it clear who was defrauded, what the independent crime is, or when an attempt to influence voters becomes “unlawful” and constitutes an independent crime.

There is also a question regarding the statute of limitations applicable to these claims.  The statute of limitations on a misdemeanor in New York is 2 years, and would have expired long ago.  NY Crim Proc 30.10(2)(c).  The statute of limitations on “other felonies” is 5 years.  NY Crim Proc. § 30.10(2)(b).  The acts occurred in 2016 and 2017, and the District Attorney delayed filing the charges for several years.  The District Attorney has argued that the statutes of limitations were tolled during COVID, or that they were extended when Trump left the state.  These issues need to be addressed by the court clearly.

So while there is very strong evidence that Trump created false business record entries to cover up his hush money payments to Stormy Daniels, the District Attorney needs to show multiple difficult elements to establish that the entries were made to commit “fraud,” and for the purpose of covering up a separate crime.

Finally, what is the penalty if Trump is convicted of this Class E felony? He would be subject to a fine of up to $5,000 under NY Pen § 80.1.  If he received some financial benefit, he might have to disgorge three times the amount of the benefit.  It is difficult to see how these minor penalties would justify such an expensive investigation and prosecution.

So the goal must be to impose imprisonment.  For a first time offender, the court could impose a prison term of up to one year under NY Penal law § 70(4), but it would be very unusual to impose prison time for a first time Class E felony, especially where no victim suffered financial harm.

This case is an important test for our legal system.  District Attorney Alvin Bragg was under intense political pressure to bring these charges, even after his predecessor, Cyrus Vance Jr., decided not to do so.  Trump is very unpopular in Manhattan, and has acted boorishly and foolishly in verbally attacking parties, judges, court clerks and their families.  But the law must be applied fairly and evenly to all parties, even those who are locally unpopular, and it is the District Attorney’s responsibility to assure equal treatment under the law.

I believe that the use of our legal system for political purposes will backfire with the electorate.  Every time a politically motivated case is decided, the polls show Trump becoming more popular.  Alvin Bragg sits in the chair once occupied by one of my legal heroes, Robert Morgenthau, who refused to use his office for political purposes, and had the courage to admit when his office made mistakes.  Bragg has a lot to live up to.  This old case, with all of its legal difficulties, should not have been brought