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Unpacking the alleged crime that made Trump’s alleged crime a crime

Lawyers presented closing arguments at Donald Trump’s criminal trial in Manhattan on Monday, beginning the process of presenting the state’s case against the former president to the jury. Ultimately, the jury will be asked not whether Trump is guilty of a crime in the abstract, but rather whether the state has provided enough evidence to remove any doubt that he violated the letter of the law. This means that the letter of the specific law underlying the charges against Trump is critically important.

In that indictment, Trump is charged with 34 crimes, each based on falsifying business records. Specifically, prosecutors say, he caused the Trump Organization and his personal trust to record payments made to attorney Michael Cohen in 2017 as fees rather than reimbursements for the $130,000 Cohen paid the film actress for adults Stormy Daniels before the 2016 presidential election.

Falsifying business documents is not always a crime. But if “the intent to defraud includes the intent to commit another crime or to aid or conceal its commission,” the New York penal code states, it can be charged as such. As was the case in each of the charges against Trump.

So what is “another crime”? This is not specified in the criminal indictment. Manhattan District Attorney Alvin Bragg (D-) was somewhat vague when the indictment was handed down, saying the intent was to “cover up crimes that concealed information harmful to voters.” during the 2016 presidential election.

In his opening statement Monday, prosecutor Matthew Colangelo made clear that the crime centered on Cohen’s payment to Daniels.

“This was a planned, coordinated, long-term conspiracy to influence the 2016 election,” Colangelo said, “to help Donald Trump get elected through illegal spending, to silence people who had something negative to say about his behavior, using falsified company records.” . It was election fraud, pure and simple.

Trump’s lawyer, Todd Blanche, rejected the idea.

“There is nothing wrong with trying to influence an election; it’s called democracy,” he said during his opening speech. “They added something sinister to this idea, as if it were a crime. You will learn that this is not the case.

Except it can be. And in this case, that’s almost certainly the case.

At issue is another fairly esoteric body of law: limits on campaign financing. These laws limit the amount of money people can contribute to political campaigns and how campaigns must report what they receive and how they spend it. Outside parties can also spend money to promote candidates; This is called independent spending. But they can’t coordinate with campaigns or candidates on how they plan to do it.

The goal of these laws – an important aspect of the problem at hand – is primarily to limit the corruption that could result from a large donor funding a candidate’s entire campaign. If, say, Google could simply field a candidate and spend $1 billion to get her elected to the Senate, it would be difficult for anyone to compete – and Google would have a presumably loyal senator sitting in Washington DC.

So, with these prohibitions in mind, consider what Cohen did — as he admitted when pleading guilty to federal campaign finance charges.

Cohen and a Trump campaign representative (later revealed to be Trump) met with David Pecker – then chairman of American Media Inc. and publisher of the National Enquirer – in August 2015. Pecker offered to help the campaign by purchasing items that would reflect negatively on Trump, then burying them. AMI and Pecker confirmed this story in a non-prosecution agreement with the government.

Already, you see that this is an offer for the benefit of the campaign which involved coordination with campaign agents; that is, with people authorized to act on behalf of the campaign. This is of course Trump himself, but also Cohen, who would publicly represent the campaign and discuss campaign strategy with Trump.

When Pecker later purchased a similar story from former Playboy model Karen McDougal for $150,000 with the intention of burying her, 1) it was an action taken to benefit the campaign, according to the meeting. ‘August 2015 and 2) was not an independent expense, since the McDougal payment was made in consultation with Cohen. Cohen pleaded guilty to “causing an illegal corporate contribution” – since companies like AMI cannot legally contribute to campaigns and the $150,000 was a non-monetary contribution to Trump. AMI and Pecker testified, resulting in this non-prosecution agreement.

In October 2016, a month before the election, Pecker informed Cohen of Daniels’ story. Cohen reached a settlement with Daniels’ lawyer – also McDougal’s – for $130,000, but did not immediately pay. It was only when Cohen learned that Daniels was planning to speak publicly elsewhere days before the election that he finally paid the money.

Cohen also pleaded guilty to federal campaign finance charges related to this. However, this plea did not rely on the argument that Cohen was an agent of the campaign; instead, he argued that Cohen made the contribution “in cooperation, consultation, and concert with, and at the request and suggestion of, one or more members of the campaign.” A later filing identified that campaign member: Trump.

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Some on the right have argued that the payment to Daniels did not violate campaign finance law. Earlier this month, Trump shared a 2023 article on social media by Andrew McCarthy of the National Review, making this point.

The timing, McCarthy argued, “was simply a common sense decision” on the part of Daniels and McDougal, “striking at a time when their influence against the notoriously parsimonious Trump was at its peak; This did not mean that (the nondisclosure agreements) – for which Trump had many other personal, political and business incentives to pay – were necessarily in-kind campaign expenses.

Perhaps this could be an argument made against such accusations, although doubtful. After all, Cohen recorded a conversation with Trump in September 2016 in which they discussed the McDougal affair and, in another context, the need to bury negative information until after Election Day. The idea that Trump and Cohen didn’t view Daniels’ payment as campaign-related is ridiculous — especially since it came to their attention immediately after the Washington Post published the “Access Hollywood” tape. , drawing new scrutiny over Trump’s interactions with women. .

But Trump’s defense team isn’t trying to make McCarthy’s argument anyway.

“There’s nothing wrong with trying to influence an election,” Blanche told jurors Monday. “It’s called democracy.”

So if Trump was certainly trying to influence the election by agreeing with Cohen to pay Daniels, then Cohen — as he admitted in federal court — violated campaign finance laws. And therefore, if the reimbursements to Cohen were falsified to disguise their intent – ​​remember, the Cohen-Daniels story was not made public until 2018, after the reimbursements had been made – it appears that this was done to “hide the commission”. of these campaign finance violations.

Proving that Trump actively caused the falsification of records is the central task of Manhattan prosecutors. Showing that the records were allegedly falsified to hide this other crime seems a much easier task.

washingtonpost

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