Prosecutors Are Still Hedging on Exactly What 'Crime' Trump Tried To 'Aid' or 'Conceal'

Donald Trump is charged with 34 felonies in New York because he allegedly falsified business records to conceal "another crime." In the run-up to Trump's trial, which began last month and is expected to conclude next week, Manhattan District Attorney Alvin Bragg was cagey about exactly what that other crime was. His prosecutors suggested several possibilities without picking one in particular, and they are still hedging on this crucial point.

It looks like the case will go to the jury with that central question unresolved. That's fine, according to a ruling that Juan Merchan, the judge presiding over the case, made this week.

For a verdict to be valid, Trump's lawyers argued, the jury should have to settle on a specific legal theory. The prosecution disagreed. Under "the standard application of the law," lead prosecutor Matthew Colangelo argued, jurors can convict Trump as long as they unanimously agree that he falsified business records with "an intent to commit another crime or to aid or conceal the commission thereof." In Colangelo's view, jurors do not have to agree on what that underlying crime was. Merchan sided with the prosecution, adding new complications to a case that was already convoluted and confusing.

The charges against Trump stem from the nondisclosure agreement (NDA) with porn star Stormy Daniels that Michael Cohen, Trump's lawyer, arranged shortly before the 2016 presidential election. Cohen paid Daniels $130,000 to keep her from talking about her alleged 2006 sexual encounter with Trump. When Trump reimbursed Cohen in 2017, the prosecution says, he falsified business records by disguising his checks as payment for legal services.

Ordinarily, that would be a misdemeanor. Trump is instead charged with 34 felonies because he allegedly tried to facilitate or cover up "another crime," which makes the nature of that crime pretty important. Yet the prosecution says it does not really matter, and Merchan agrees.

The essence of Trump's crime, Bragg says, is that he "corrupt[ed] a presidential election" by hiding information that voters might have deemed relevant in choosing between him and Hillary Clinton. As Bragg sees it, this is "an election interference case."

Colangelo offered the same gloss in his opening statement. "This was a planned, coordinated, long-running conspiracy to influence the 2016 election, to help Donald Trump get elected through illegal expenditures, to silence people who had something bad to say about his behavior," he told the jury. "It was election fraud, pure and simple."

Merchan describes the case in similar terms. "The charges arise from allegations that Defendant attempted to conceal an illegal scheme to influence the 2016 presidential election," he wrote yesterday in a ruling regarding discovery. "Specifically, the People claim that Defendant directed an attorney who worked for his company to pay $130,000 to an adult film actress shortly before the election to prevent her from publicizing an alleged sexual encounter with Defendant. It is further alleged that Defendant thereafter reimbursed the attorney for the payments through a series of checks and caused business records associated with the repayments to be falsified to conceal his criminal conduct."

The case hinges on that last part. Trump is not charged with "an illegal scheme to influence the 2016 presidential election." He is not charged with "election interference," as Bragg described the Daniels NDA. Nor is he accused of "election fraud" or "conspiracy," as Colangelo suggested.

Given the "election interference" framing, it is easy to lose sight of what this case is actually about: 11 invoices from Cohen, 11 corresponding checks, and 12 ledger entries—"just 34 pieces of paper," as Todd Blanche, the lead defense attorney, described them. Prosecutors say those documents were falsified because they mischaracterized Trump's reimbursement of Cohen. But to justify felony charges, they had to prove that Trump was not merely trying to hide an embarrassing transaction. They had to prove that he was trying to cover up or assist "another crime."

What crime? "The primary crime that we have alleged," Colangelo told Merchan before the jury returned to the courtroom on April 23, "is New York State Election Law Section 17-152″—a provision so obscure that experts say they have never seen a criminal case based on it. That law makes it a misdemeanor for "any two or more persons" to "conspire to promote or prevent the election of any person to a public office by unlawful means."

The "unlawful means," according to prosecutors, was Cohen's payment to Daniels, which amounted to an excessive campaign contribution. Cohen accepted that characterization in a 2018 federal plea agreement that also resolved several other, unrelated charges against him. But Trump was never prosecuted for soliciting that "contribution," probably because it would have been hard to prove that he "knowingly and willfully" violated federal campaign finance regulations. If Trump thought the nondisclosure agreement with Daniels was perfectly legal, as his lawyers maintain, he did not have the intent required for a conviction under the Federal Election Campaign Act (FECA).

Bradley A. Smith, a former chairman of the Federal Election Commission (FEC), was prepared to testify for the defense that viewing the Daniels payment as a campaign contribution is contentious because the distinction between personal and campaign expenditures is fuzzy. To illustrate the difficulty of drawing that distinction, Smith also planned to tell the jury about the unsuccessful 2012 prosecution of Democratic presidential candidate John Edwards, which featured similar but seemingly stronger facts.

"Defendant seeks to elicit from Smith, among other things, that at the time Cohen paid Daniels, there had never been a case in which anyone had been convicted of a federal campaign finance law violation for the making of 'hush money payments,'" Merchan noted in a pretrial ruling. The defense wanted Smith to discuss "the facts surrounding" Edwards' trial and "his subsequent acquittal," explaining why "the case was heavily criticized." Smith's testimony also would have covered "the absence of culpable mens rea" for falsification of business records and "the willfulness element of a FECA violation."

Merchan ruled that Smith could not testify as an expert witness on matters of law, saying he could only offer "general background" on the FEC and "general definitions" of terms such as campaign contribution. Because of those constraints, Smith never testified, so the jury never heard why describing the Daniels NDA as "an illegal scheme to influence the 2016 presidential election" was problematic. Yet that claim is crucial to the argument that Cohen and Trump conspired to promote his election through "unlawful means."

There are other difficulties with relying on Section 17-152 for "another crime." When it comes to federal elections, federal law pre-empts state law, so it is not clear that Section 17-152 can be invoked based on an alleged FECA violation. To have the "specific intent" required for a criminal conspiracy, Trump would have had to recognize the Daniels NDA as "illegal means." And to have the intent required to charge falsification of business records as a felony, Trump would have had to know about Section 17-152, a moribund law that apparently has never been invoked before. He also would have had to anticipate how prosecutors might construe that law in light of FECA.

Those three assumptions are, respectively, debatable, unlikely, and highly improbable. So it is not surprising that prosecutors want to keep their options open.

A second candidate for "another crime" is the alleged FECA violation itself. But that still poses the question of whether Trump recognized the Daniels payment as illegal, and it is plausible that he did not.

Finally, prosecutors have suggested that Trump was trying to facilitate the "criminal tax fraud" that Cohen allegedly committed by describing the reimbursement as income on his tax returns. Since that characterization resulted in a higher tax bill, it is a strange sort of fraud. In any case, it seems unlikely that Trump, when he paid Cohen, was thinking about the ramifications under Sections 1801(a)(3) and 1802 of the New York Tax Law, let alone that he was trying to "aid" Cohen's alleged violation of those provisions.

That last theory, you might notice, has absolutely nothing to do with the "election interference" that Bragg claims is "the heart of the case." If the jury convicts Trump based on the tax theory, it will not be saying anything about the propriety or legality of Cohen's arrangement with Daniels.

Under Merchan's recent ruling, the jury does not have to agree about which of these three theories makes Trump guilty of the charges against him. If four jurors go with Section 17-152, four prefer FECA, and four think the case is really about tax fraud, Trump will still be guilty. That situation will present a puzzle on appeal because each of these theories raises different issues.

The FECA theory requires accepting the characterization of the Daniels payment as a campaign contribution and assuming that Trump knew it fell into that category. It also assumes that a violation of federal law counts as "another crime" under state law.

The Section 17-152 theory, which uses one misdemeanor to transform another (falsification of business records) into a felony, likewise assumes a FECA offense. It also assumes an intent to conspire with Cohen in using "unlawful means" to promote Trump's election, plus an intent to conceal that alleged state crime. And if federal law pre-empts Section 17-152 in this context, the state law does not even apply.

The tax theory requires believing that Trump, when he signed the checks to Cohen in 2017, was not only imagining what would happen when Cohen filed his tax returns the following year but specifically intended to facilitate his communication of "false or fraudulent information" to the government. And that "tax fraud" resulted in more revenue for the state and city, which might not matter legally but really should.

If Trump is convicted based on a hodgepodge of these theories, none of which attracts unanimous support from the jury, the rationale for that verdict will be completely muddled. It will pose a challenge for his appellate lawyers, but it will be a fitting end to a trial staged by prosecutors who seem desperate to prevent Trump from reoccupying the White House by any means necessary.