Defendant-1 Charged with 34 Counts of Document Falsification to Hide 2016 Crimes

I’m starting a new post as we begin to get news from the arraignment. Among the 34 charges is a conspiracy count that will sweep in a great deal of damning evidence.

Update: Here is the indictment. That just lists the individual document fraud, check by invoice.

The statement of facts explains the underlying logic of the case.

Update: Alvin Bragg just explained the case. The argument is that in 2015 and 2016, Michael Cohen, David Pecker, Trump, and others agreed to conduct the catch-and-kill program to help Trump win. That violated three crimes, per Bragg:

  • New York State laws prohibiting the promotion of a candidate by false means
  • Federal campaign finance laws
  • Document falsification by American Media Inc (National Enquirer)

He alleges each invoice and check were an attempt to cover up those 2016 crimes.

Bragg did say that the indictment does not need to specify what the other crimes the document falsification was intended to hide. He also noted–as NYU’s Ryan Goodman has laid out–that it is the “bread and butter” of the white collar charges NY DA charges.

Bragg claimed that his office had received additional evidence and access to additional witnesses after he took over.

194 replies
    • Rugger_9 says:

      Like bacon makes everything taste better, conspiracy charges make other legal entanglements worse.

      To channel bmaz, DA Bragg still has to prove it. Let’s see how the preliminary hearings go for setting the scene on evidence, starting with an alleged motion to change venue to Staten Island.

  1. punaise says:

    I’m sittin’ in the dock on this day
    Watchin’ my pride roll away, ooh
    I’m just sittin’ in the  dock on this day
    Wastin’ crime

    I left my home in Mar-a-Lago
    Headed for Jamaica Bay
    ‘Cause I’ve had nothin’ to live for
    It look like nothin’s gonna come my way

    So I’m just sittin’ in the dock on this day

  2. earlofhuntingdon says:

    Alvin Bragg to hold a press conference tonight, seemingly in competition with the Don’s fundraising speech. Isn’t it time for Mr. Bragg to just let his prosecutors get on with it?

    And where, pray tell, is the indictment? Or is this sort of delay in publication common?

    • Rugger_9 says:

      Defendant-1 has already left the building post-arraignment yet there is nothing published that I see either. That seems unusual, and I don’t think the DA can tack on stuff not already in the docket without asking for permission. FWIW, the defense team waived reading of the charges in court so we didn’t even get that chance to find out.

      • Charles Wolf says:

        “… the defense team waived reading of the charges in court so we didn’t even get that chance to find out.”

        Too bad. I’d have loved to hear trump plead “Not Guilty Your Honor” to 34 felonies.
        That’s certainly more felonies and probably misdemeanors and infractions than everyone in here has been accused of in all our entire lives, and the orange genome disgrace caught 34 felonies in one sitting.

    • Rayne says:

      Consider that Bragg’s target audience may differ from the one you expect. He and his office have been inundated with threats before the arraignment and his office must continue to work at a high level in spite of threats continuing. Communicating to his community about this may be important to him.

      As for the indictment, no idea. Sure would be nice to read it soon.

      • bmaz says:

        Bragg’s ONLY “target audience” is the truth and justice. He has been, and continues to be, playing to a different audience. Bragg is a sham.

        • jonMontague says:

          I really want to get a realistic sense of how any of this is likely to shake out, so I’m here rather than at the blogs of less well-informed writers, and now I’m trying to understand this pair of statements. A DA whose target audience is the truth and justice would seem to be a good thing, rather than one who cared about his public image, media characterizations, currying political favours, etc. But you also say he’s a sham. In what sense is Bragg a sham? Just a hint that would help to find anything you might have already written on the topic would be enough, thanks.

          [Thanks for updating your username to meet the 8 letter minimum. /~Rayne]

        • jonMontague says:

          Ok. I misread your sentence “Bragg’s ONLY “target audience” is the truth and justice” as your sincere evaluation that Bragg cared only about the truth and justice, but from others’ comments I understand now that you mean the opposite of what your sentence says.

        • jonMontague says:

          Ok. I’m sure you could easily spell it out for the clueless like me, but I’ll try again, as you suggest. Do you mean that Bragg’s caring only for truth and justice is in some way foolish naïve, and that he *should* have taken politics etc into account more, to realize that (in your opinion) a conviction is unlikely?

          If this isn’t it, and you’re not inclined to spell it out for me, then maybe a regular could clue me in.

        • trnc2023 says:

          It’s a clumsy construction, but bmaz is saying that Bragg SHOULD be playing to truth and justice, but that he is instead playing to a different audience. I’m not exactly sure what bmaz’s beef is with Bragg, but it’s hard to keep his various beefs with prosecutors, democratic committees, etc straight. At any rate, I’m fully prepared to be disappointed once again, but I do hope bmaz is wrong about this one.

        • jonMontague says:

          Thanks. In the great-grandparent to your comment, I suggested as much (maybe unclearly), but bmaz replied that I, quote, still didn’t understand squat. I think you’re right though. I’ve found (as a long-time lurker) there to be value in his comments but I will say the degree of orneryness feels kind of unnecessary, at least some of the time.

        • Danzbe says:

          Bragg’s target ~should be~ truth and justice, but he is/has been playing to a very different one (public opinion to score political points)

        • emptywheel says:

          bmaz will hopefully save his comments to make a substantive case later in the week. I’ve updated the post to lay out Bragg’s theory. I think it’s a fair theory, though I still don’t understand why it can still be charged (note, the final act of the underlying crimes was less than 5 years ago).

        • bmaz says:

          Sure. But bootstrapping around SOLs used to be a bad and impermissible thing. Just saying.

          Also, too, can’t a guy get at least half a victory lap? How about for pointing out what a tool Weissmann has long been? Nothing??

        • Doctor My Eyes says:

          Bmaz, you should be in a perpetual victory lap.

          I hope you’re at least a little wrong about how weak the case is, but in any case, it’s always good to be forewarned that things may not pan out. I’ll look forward to your detailed response later.

          Personal aside: surprisingly, I’m getting zero satisfaction from this. The damage he’s done won’t soon be undone, and I do wish comeuppance for him, but everything about the situations he creates is so sordid and insulting to civic virtue that there is no pleasure in it.

        • TREPping says:

          Doctor, I get that. TFG deserves every rotten thing that happens to him just on a karmic level. But there is no joy in this situation. Even if the case is much more legit that bmaz thinks (which I doubt), this not what I think he should go down for. Georgia, J6, and missing documents are all more substantial reasons, if appearances match reality, that should send the former President to confined spaces for a long time. My 2 cents.

        • JVO says:

          Doesn’t Bragg’s indictment at least grease the prosecution skids, and tamp down certain of the public’s intense opposition, for others to proceed down the same tracks?

        • bmaz says:

          No. Quite the opposite, it has handed Trump everything he could have asked for to fight any and all action, including in other jurisdictions. Bragg is a gift on a silver platter.

        • JVO says:

          OK, but it’s EW’s point that the only new fact we’re learning is due to Costello’s last appearance. Didn’t Trump-team already have everything that Bragg is now lavishly gifting? Help me understand your point, please – and thank you!

        • bmaz says:

          No, the indictment itself is the gift. And it is a gift that will keep giving for a very long time. Did Costello give the GJ something new? I don’t know, and neither Costello not Bragg are reliable in any regard as a narrator on this. Of course Bragg said he had “new information”; he could not just stand there and admit nothing had changed over all the years. We shall see I guess.

          Would like to make one thing clear though – on a previous post Curious George said:

          “Next court date is reportedly not until December 4.

          As I said before, this case will be off the front page in short order and will effectively disappear once the next criminal case is charged.”

          I do not think that is even remotely correct. The December date is almost certainly a routine trial status conference setting for which the court has ordered Trump to appear in person. There will be many goings on long before that as motions are filed and heard. Trump simply may not be required to be there in person. And this is in Manhattan, the media capitol of the world, as long as Bragg’s charges are pending, it will always be front page material.

        • havaheart says:

          The criminal statute of limitations is tolled for those periods of time that the defendant is continuously outside the state. N.Y. Crim. Proc. Law § 30.10(4)(a).

        • Knowatall says:

          This is a very interesting detail. We probably need some type of tolling for the time someone occupies the WH (including VP) as well.

  3. Bobby Gladd says:

    Some folks like to get away
    From a Stormy day in the neighborhood.
    Dodge a fight with Melania,
    She don’t look so good.
    Well I’m takin’ a Greyhound
    On the Rikers Island Line.
    I’m in a New York state of mind…


    • sandman8 says:

      Verse 2:
      I’ve peed on the beds of czars,
      Boinked porno stars, been spanked with magazines.
      Been low in the lakes-to-seas under the palm oil trees.
      You already know what I’m needing,
      But I’m gonna waste your time.
      I’m in a New York state of mind

  4. Troutwaxer says:

    I missed the conspiracy count (if there was one) and just saw 34 counts of “Falsifying.” Does the conspiracy count have a number?

    • Estragon says:

      Yeah I don’t see conspiracy either. I guess I didn’t realize how much of the Pecker/AMI side of this was going to be involved, all the coverage was so focused on Stormy Daniels.

      And let me just get this straight- the guy was such a venal cheapskate he couldn’t just pay these women out of pocket? He had to wash it through the Org so he could claim the payments as tax write offs?!?

      The only way— to me at least— that makes any kind of sense is that this was completely standard practice at Trump Org for quite some time.

        • posaune says:

          Exactly, Rayne. Lefferts Village in Queens was the primary victim. More than 1,000 apartments. Today, there are only about 1/2 dozen tenants remaining. One has sought to have his rent re-adjusted after decades of Trump rent-raising scams. The way it worked was: Fred Trump would promise a tenant a new fridge after months and months of complaints. He would purchase the fridge under the All County Building for $250 and show the tenant an invoice for $750, and raise the rent accordingly, and file the new “basis” rent with the NYS authority. You can imagine that after 50 years with numerous appliance replacements, “improvements”, it would be near impossible to re-calculate the correct, i.e., legal “basis” rent, that also includes the NYC annual allowable rent % increases. But I sure as he__ would love to see that 80-year old get back his rent overpayments with interest.

        • Knowatall says:

          Add the complications of rent-control vs. rent-stabilization and SCRIE/DRIE and it’s a near impossibility. The L&T situation in NY is a Kafka-esque nightmare.

        • Estragon says:

          Oh, quite aware of it, all the way back to Fred’s shenanigans. I was more just expressing incredulity that venality could overcome the obvious (perhaps only in retrospect?) pitfalls associated with washing this through the biz. Imagine the deductions Mazars signed off on over the years. The mind boggles.

        • Super Nintendo Chalmers says:

          I believe that was detailed by the “failing” NYT in a series about how FredericKKK Drumpf used phony billings so that his idiot son, Donald, had almost half a billion dollars in ill-gotten gains.

      • Sandwichman says:

        That’s the deal. F…ing a porn actor is not a crime. Paying off a porn actor is not a crime. Arranging for other people to pay off the porn actress, etc. during an election campaign, however, is soliciting illegal in-kind campaign contributions. Covering up the payoff as a business expense is the kind of crime that would be standard operating procedure for a habitual white collar criminal. I don’t buy the theory that “it’s not a crime if he does it all the time.”

      • c-i-v-i-l says:

        It also would have been legal for him to pay them out of campaign funds with a vague description of the purpose, so cheapness alone doesn’t explain it. And for Daniels at least, even a campaign payment wouldn’t have come out until after the election (I’d have to look up the timing of the catch and kill arrangement with McDougal to check whether the same is true for her).

        • vicks says:

          The statement doesn’t include any evidence Pecker got reimbursed for McDougal,
          Although I think it’s old news, I’m not sure what to make of Bragg stating that Pecker’s council told Pecker to let it go at the last minute?

        • c-i-v-i-l says:

          Agreed about what the statement says, but I wasn’t talking about what actually occurred, only about how Trump could have legally paid hush money to both women without using his own money.

        • Critter7 says:

          I read somewhere that Pecker expected Trump to reimburse him but Trump stiffed him. And that’s why Pecker didn’t want to pay again when the Stormy situation emerged, thus putting it in Cohen’s lap.

          I can’t document that, can’t remember where I saw it, but I’ve seen nothing since to contradict it even with this new explosion of Trump-Stormy-Pecker news.

        • c-i-v-i-l says:

          Seems to me that paragraph 15 of the SoF contradicts it:
          “Less than two months before the election, on or about September 30, 2016, the AMI CEO signed an agreement in which AMI agreed to transfer its rights to Woman 1’s [McDougal’s] account to Lawyer A’s shell company for $125,000. However, after the assignment agreement was signed but before the reimbursement took place, the AMI CEO consulted with AMI’s general counsel and then told Lawyer A that the deal to transfer the rights to Lawyer A’s shell company was off.”

  5. harpie says:

    From the Statement of Facts Marcy posted above: []

    1. The defendant DONALD J. TRUMP repeatedly and fraudulently falsified New York business records to conceal criminal conduct that hid damaging information from the voting public during the 2016 presidential election.

    2. From August 2015 to December 2017, the Defendant orchestrated a scheme with others to influence the 2016 presidential election by identifying and purchasing negative information about him to suppress its publication and benefit the Defendant’s electoral prospects. In order to execute the unlawful scheme, the participants violated election laws and made and caused false entries in the business records of various entities in New York. The participants also took steps that mischaracterized, for tax purposes, the true nature of the payments made in furtherance of the scheme. […]

    • Ginevra diBenci says:

      harpie, I’m so thankful for this site. I couldn’t find the Statement of Facts anywhere else, and the indictment counts read mostly like boilerplate. My question now is how the conspiracy matrix (not among the charges itself) informs the actually charged crimes. Is this a “pattern and practice” argument? On its face, it would seem not; too intricate and spider-webby.

      I feel like I should know how the Statement of Facts buttresses the charges legally, but I don’t. Can only assume I’m missing something.

        • Ginevra diBenci says:

          Thanks, Rayne, but what I’m wondering is how Bragg works those facts and charges into his case in the form of charged crimes–or if he doesn’t have to, why not. I’m starting to be persuaded by some legal arguments I’ve heard based on NY law saying the underlying conspiracy crime doesn’t need to be proven/charged, but not sure if bmaz isn’t right about this.

          On the surface, he looks right.

        • bmaz says:

          Sooner or later, likely far sooner than trial, shell game Bragg is going to have to show under which shell he is hiding the pea.

        • Rayne says:

          ~dying~ Dude, that’s why he’s in the mess he’s in now. He could have written a fucking campaign check to Stormy but no, he didn’t want to pay her directly.

          You’d have been paid. You just wouldn’t get a payment directly with Trump’s signature on the check.

        • Spank Flaps says:

          What with all this, Cambridge Analytica, Russian interference and Jim Comey… Trump was literally an illegitimate president.
          (This would probably sound good in Spanish, “Trump el presidente bastardo”).

    • Rayne says:

      You say “pissant business record concealing,” I say false statements and unlawful campaign contributions.

      I really want to know why conspiracy didn’t show up in these charges given what what Cohen was charged with.

      • Peterr says:

        From the Statement of Offense:

        1. The defendant DONALD J. TRUMP repeatedly and fraudulently falsified New York business records to conceal criminal conduct that hid damaging information from the voting public during the 2016 presidential election.

        OK, pretty basic overarching introduction. Let’s see where it goes . . .

        2. From August 2015 to December 2017, the Defendant orchestrated a scheme with others to influence the 2016 presidential election by identifying and purchasing negative information about him to suppress its publication and benefit the Defendant’s electoral prospects. In order to execute the unlawful scheme, the participants violated election laws and made and caused false entries in the business records of various entities in New York. The participants also took steps that mischaracterized, for tax purposes, the true nature of the payments made in furtherance of the scheme.

        Now we’re getting somewhere. “Catch and kill” puts this in the realm of campaign activity, not privacy concerns. Specific crimes alleged include violating election laws fudging the business paperwork, and falsifying records related to taxes.

        Moving on . . .

        3. One component of this scheme was that, at the Defendant’s request, a lawyer who then worked for the Trump Organization as Special Counsel to Defendant (“Lawyer A”), covertly paid $130,000 to an adult film actress shortly before the election to prevent her from publicizing a sexual encounter with the Defendant. Lawyer A made the $130,000 payment through a shell corporation he set up and funded at a bank in Manhattan. This payment was illegal, and Lawyer A has since pleaded guilty to making an illegal campaign contribution and served time in prison. Further, false entries were made in New York business records to effectuate this payment, separate and apart from the New York business records used to conceal the payment.

        For example . . . the SoO claims the payoff made through a shell corporation was itself a crime, as an illegal campaign activity. It also distinguishes between the manner in which the payment was made, and the manner in which said payment was covered up afterwards.

        And here’s how the SoO says that was done . . .

        4. After the election, the Defendant reimbursed Lawyer A for the illegal payment through a series of monthly checks, first from the Donald J. Trump Revocable Trust (the “Defendant’s Trust”)—a Trust created under the laws of New York which held the Trump Organization entity assets after the Defendant was elected President—and then from the Defendant’s bank account. Each check was processed by the Trump Organization, and each check was disguised as a payment for legal services rendered in a given month of 2017 pursuant to a retainer agreement. The payment records, kept and maintained by the Trump Organization, were false New York business records. In truth, there was no retainer agreement, and Lawyer A was not being paid for legal services rendered in 2017. The Defendant caused his entities’ business records to be falsified to disguise his and others’ criminal conduct.

        No retainer agreement between Trump and Cohen? I’m shocked. Shocked, I tell you.

        The specific invoices submitted by Cohen each month to provide cover for reimbursing him for making the upfront payment to Stormy Daniels should be quite interesting. I’d love to see how witnesses from Trump Corp will discuss how those invoices were treated. Who saw them other than DJT, who used them to prepare financial reports and tax filings, and on what basis did that person (or persons) justify the tax treatment the reimbursements were given?

        It strikes me, as a non-lawyer, that such an invoice requesting payment would say more than simply a generic “XX hours for legal services rendered, to be paid at $YYY/hour.” Wouldn’t an invoice include an indication of what specific legal work was being done – something like “preparation for motions and filings related to the case XYZ v Trump Corp” or “drafting of legal documents related to the purchase of ABC Property from DEF Corporation” as well as the hours spent on each case/project and the rate charged for each?

        Second question: how unusual is it for a client to reimburse a lawyer for $130,000 in expenses, with whom the client has no written retainer agreement?

        • PJB2point0 says:

          That is a particularly interesting last question.

          There is a lot of discussion about whether this is an overcharge/bootstrap of some misdemeanors into felonies etc. and I get all that. I also get some legal arguments related to statute of limitations or other potential motions to dismiss. But, what I would be very interested in seeing is, assuming Bragg can get this to a jury, how we think Trump can substantively defend this case on the merits. The documentary evidence seems pretty airtight. I find it hard to believe any juror will think any of these payments were legit business expenses. In other words, how does Trump argue, not that the case shouldn’t have been brought, but that he is innocent of the charges?

        • earlofhuntingdon says:

          Last question first. An outside counsel would never advance a client $130,000 of his own money. A personal loan, mano-a-mano, between old friends, maybe, but not as a business deal.

          A purported billionaire would not need the money, not even for cash flow reasons. And you wouldn’t advance it for a business expense of the client that he didn’t want to pay directly. That screams wash transaction that begs for sanctions and investigation of the client.

          Another big issue is who’s the client. The benefit seems to run to Trump individually. The reimbursement, however, came from the client’s privately-held close corporation. Another red flag that suggests subterfuge and accounting irregularity.

          As for the invoicing, modern practice is for corporate clients to demand detailed bills, matching time, activity and cost. Global mega-firms – Sullivan & Cromwell, Davis Polk, etc. – might still get away with a one-line: “services rendered.” But they also charge fees so high, most corporate boards would object, unless they, too, were trying to keep the transaction or work closely held.

        • Peterr says:

          Your second paragraph is exactly what I was thinking. Spreading this across monthly payments rather than paying it all at once screams “coverup!”

          Kind of like George Santos and his astounding number of $199.99 campaign expenses.

        • Rugger_9 says:

          OK, but I’m still somehow not seeing why Defendant-1 was so concerned about the Daniels and McDougal transactions when the Access Hollywood tape had no adverse effect on the campaign and both SDNY and the NYT were backing him by going after HRC. The Ds got zero traction on everything else regarding Defendant-1 sleaze.

          Why do it if it doesn’t matter and Defendant-1 was burnishing his stud credentials with these ‘conquests’?

        • John Paul Jones says:

          The Access Hollywood tape was a potential landmine for Trump, except Assange almost instantly dumped a bunch of the Russian material into the news cycle, thereby diluting the impact of it. The adverse effect can be gauged by the fact that Trump actually issued an apology, so that other Republicans didn’t have to repudiate him.

        • earlofhuntingdon says:

          A simpler explanation is that Trump, at different times, saw two women with whom he wanted to have unprotected sex. He allegedly did. His reputation is that these were not remotely the only times he has done so.

          Those two women were under no obligation to keep it to themselves. Trump’s candidacy made their information timely, valuable, and newsworthy. Trump paid or promised to pay them big bucks, in order to bind them contractually to keep quiet.

          Trump allegedly and illegally hid how he did that – despite having the means to do it legally – and illegally hid how he did that. That’s where his jeopardy here comes from.

          Personally, I think Trump preferred the illegal route, because that’s how he rolls and he relishes getting away with it. That’s part of his definition of power.

        • Super Nintendo Chalmers says:

          More evidence that he’s a schnorrer. He could have paid with his own money, but he laundered it through the Drumpf Organization.

        • Ginevra diBenci says:

          He and Pecker made a deal that AMI would catch and kill those. Which it did, along with slagging his opponents. They got tired of paying when Stormy came along.

          Trump didn’t want to pay her. He thought he could get away with not paying if he put her off until after the election–a tell that he never cared about Melania at all.

        • earlofhuntingdon says:

          Actually, the payments were from a variety of Trump personal and business accounts, which is even more iffy.

    • bawiggans says:

      34 counts of pissant business record concealing may not worthy of being charged in this case, but don’t try this at home.

    • John Wolfe says:

      These might have been pissant charges in a 2008 timeframe. My view is that in a late presidential campaign context, these illegal activities become more significant.

      • Super Nintendo Chalmers says:

        I was reading an article on Daily Kos that quoted Rachel Maddow’s take. Dotard’s margin of victory in 2016 in Michigan, Wisconsin, and Pennsylvania was roughly 80K votes. It is certainly possible HAD voters, especially female voters in those states learned he had paid for the silence of at least two women he had affairs with, they might have abstained, voted third party or voted for HRC. The fact of the matter is we don’t know what would have happened precisely because Drumpf and associates conspired to break the law.

        • theartistvvv says:

          “had affairs with” seems kinda inaccurate, soft-pedaling to me – mebbe I’m a romantic.

          They *schtupped* for, if only eventually, some *quid pro quo*.

        • earlofhuntingdon says:

          Trump did not have an affair or a brief encounter with these women. That’s the province of Cary Grant and Deborah Kerr or Trevor Howard and Celia Johnson. This is a big money, middle-aged male trolling for a fuck.

          Years later, he paid six-figure sums to keep them quiet during the end-stage of his campaign for the presidency.

        • Rayne says:

          I’d like us not to get too close to slut shaming the women. They engaged in consensual sex, with or without pay, having been sex workers of one kind or another in the sex industry. It’s a job and somebody’s going to do it.

          Trump did not want these women to disclose to the public he had engaged in extramarital sex acts during the campaign season. The emphasis should be on him and his efforts to defraud the public by influencing the 2016 campaign by buying their silence, and in doing so falsified documents to hide his efforts.

        • earlofhuntingdon says:

          I agree. I object to Trump’s misogyny and abuse of women, not to sex work, which needs higher status and more protections. My point is that euphemisms only protect Trump.

          Firefly had a marvelous counterfactual take on it: Companions were among the highest status group in that society.

  6. pdaly says:

    Does the fact that there is no conspiracy charged rule out a future superceding indictment that includes it?

    One of the tv lawyers was about to explain how then Gov. Cuomo tolled/suspended that statute of limitations in 2020 due to the COVID19 pandemic. However, the lawyer was interrupted.

    I found this website that discusses the difference between tolling and suspending SOLs and how NY courts have decided the issue.

  7. AlaskaReader says:

    There was a time some people said prosecutor George E. Q. Johnson wasn’t up to the task….

  8. boatgeek says:

    One of bmaz’s comments above is that this case bootstraps the statue of limitations. As near as I can tell (and IANAL), the statue of limitations for felony concealment of business records is 5 years. Bragg’s statement on the charges says that the crimes occurred through December 2017. So can someone explain why the statute of limitations didn’t expire last December? And if they did expire, how can Bragg bring charges? If I may throw myself on the mercy of the court, I would very much appreciate a “Bragg’s theory/approach is X and that’s bullshit/common because Y.” Thanks!

    • pdaly says:

      See my link above. Short answer is COVID19 pandemic and Gov. Cuomo’s 2020 Executive Order tolled the SOLs for court cases in NY

      • GV-San-Ya says:

        I thought I heard that the clock pauses on SOLs when a defendant ceases being a NY state resident, as happened when Trump left for DC to take office. (Did I imagine that?)

    • havaheart says:

      For state crimes, the statute of limitations is tolled for ‘[a]ny period following the commission of the offense during which . . . the defendant [is] continuously outside [the state of New York].” N.Y. Crim. Proc. Law § 30.10(4)(a). Because the defendant has spent very little time in New York since 2016, the statute of limitations might not have run yet even if Governor Cuomo had not tolled/suspended SOLs.

  9. Seashell says:

    Trump’s legal team went back to DC last night and asked the Appeals Court for emergency help to stop Mark Meadows, Ken Cuccinelli and other close advisors from having to testify to the J6 grand jury. The judges contacted the DOJ and had their reply in 2 hours. The Court then told the Trump team no way. Ken Cuccinelli was brought in earlier this afternoon to testify. Can Trump’s team keep going back to the Appeals Court in hopes of a different answer?

    • Peterr says:

      They can ask the full Appeals Court to review the 3 judge panel’s ruling (an en banc hearing), or they can request SCOTUS to hear the case. Neither is terribly likely to succeed.

    • earlofhuntingdon says:

      That decision was by a three-judge panel. Trump could ask for the full court to reconsider. But given the circuit and how quickly the decision came down – usually meaning the law was crystal clear – the full court would likely affirm the panel’s decision just as quickly.

    • Savage Librarian says:

      I’ve been wondering how Hope Hicks would factor in as a witness. This would probably explain that. She may have been on the plane with him at that time.

  10. c-i-v-i-l says:

    I found this thread by Jed Shugerman informative:
    Two issues he raises: “Has a NY court ever allowed a conviction from this statute, NYPL 175 requiring “intent to defraud,” based on an internal business record, i.e., on which others are not likely to rely?” and “The felony NYPL 175.10 requires the cover-up of an underlying crime. The indictment doesn’t specify an underlying crime. The “statement of facts” doesn’t specify an underlying crime. That’s astonishing. … In press conference, Bragg finally says “NY state election law” & refers to fed election law. This case is preempted by the fed statute FECA, and NY state law confirms, no state jurisdiction. Either way, it’s headed to fed court for a year.”

  11. Konny_2022 says:

    When I had first read only the indictment I felt struck like some other commenters here that it doesn’t contain any hint to the scheme and only says “in violation of Penal Law §175.10” 34 times. However, after having read emptywheel’s post above, I wonder if all the other crimes, mentioned in the SOF if not by any numbers, are treated as some sort of facts that raise the misdemeanor to a felony like §175.05 is included in §175.10 but not separately named in the indictment. That would mean to draw conclusions from the indictment alone is insufficient, and the case can be understood only by reading both documents.

  12. Kevin Hayden says:

    I felt Judge Luttig’s advice to let Smith/DOJ go first made logical sense. But at this point, w/o knowing who all the witnesses are, isn’t it premature to guess at the outcome? I’m sure DJT will make plenty of hay and moolah here, but if the evidence is solid, conviction could occur.

    Not sure it’ll survive appeals, however, since 5 members of SCOTUS can’t be trusted at all.

  13. Pat Ryan says:

    I think we need to wait for Bragg to file the Bill of particulars for the underlying crime- comes at a later date. “In New York, the prosecution is generally required to provide the defense with a Bill of Particulars, which is a document that provides more specific information about the charges against the defendant, including the underlying crime that the defendant is accused of aiding or concealing through the falsification of business records. The prosecution must provide this document within a reasonable time after the defendant’s arraignment, and the court may order the prosecution to provide a Bill of Particulars even if the defense does not request one.”

      • Troutwaxer says:

        Expressions of scorn aside, is it reasonable to expect that other charges will be added? Conspiracy, at the very least, seems like a no-brainer. Does anything else look likely? (Leaving aside whether this prosecution is of poor quality.)

        • bmaz says:

          I don’t know, but kind of doubt it. They have had years to do this, why not have charged it if they have it? Guess we will see.

        • Troutwaxer says:

          I was mostly disagreeing with you a couple days ago, but this is starting to feel a little like Monica Lewinsky’s dress writ large.

        • Patrick says:

          strategically might make sense for Bragg to not name the underlying crimes straight out of the gate and to wait for when either he, the judge or the defense files / demands the bill of particulars.

        • Rayne says:

          I can’t help wonder if conspiracy charges were stymied by whatever happened with Cohen’s case because even Cohen’s case walks right up to the conspiracy and then nothing.

        • Troutwaxer says:

          And who was Cohen conspiring with? That was a big problem for the Trump justice department.

        • Rayne says:

          Gee, can’t imagine who that would have been or where…

          26. The Defendant, the TO CFO, and Lawyer A then agreed that Lawyer A would be paid the $420,000 through twelve monthly payments of $35,000 over the course of 2017. Each month, Lawyer A was to send an invoice to the Defendant through Trump Organization employees, falsely requesting payment of $35,000 for legal services rendered in a given month of 2017 pursuant to a retainer agreement. At no point did Lawyer A have a retainer agreement with the Defendant or the Trump Organization.

          27. In early February 2017, the Defendant and Lawyer A met in the Oval Office at the White House and confirmed this repayment arrangement.

          (source: Statement of Facts, page 8

  14. Badger Robert says:

    Ms. Wheeler is reporting on these events, so they are facts now.
    Will this be the only prosecution of the former President, or is the dam bursting?

  15. Troutwaxer says:

    Trump’s scumminess dosn’t just go deep, I think it’s actually recursive!

    “The Defendant directed Lawyer A to delay making a payment to Woman 2 as long as possible. He instructed Lawyer A that if they could delay the payment until after the election, they could avoid paying altogether, because at that point it would not matter if the story became public.”

    • Rayne says:

      But nice of him to leave breadcrumbs which tell investigators this was a campaign finance violation and not a matter of “protecting his family.”

      • Troutwaxer says:


        I think for law enforcement Trump being Trump is something like blood in the water for a school of sharks. The Trump Org was trying to cover up something that, given the MAGA base, never needed to be covered up, but could have been covered up in a legal fashion if they’d needed too, and even then the Trump Org couldn’t just hand over the money they’d negotiated to a fucking porn star while running for president of the goddamn United States of America.

        It’s like a clown car, and it’s speeding, and all the clowns, including the one dressed as the President, are drunk, and they’re driving on the wrong side of the road and throwing bags of piss at nuns while spitting on babies. YOU MUST ARREST THEM! Who cares if the charges are any good or spitting at babies is illegal… the goddamn clown dressed as the president is going down because we don’t fuckin’ do dat in New Yawk!

        Maybe not strictly accurate, but that’s how it feels!

        • P J Evans says:

          I just had the thought that this was all to hide the payoffs (and the adultery) from Ivana and Tiffany and Mary Trump. Probably just my imagination…

        • earlofhuntingdon says:

          Normally, Trump would brag about fucking around.
          He enjoys making others suffer: causing it makes him feel more powerful and secure.

          His motivation to hide it would most likely be to protect his campaign. Secondarily, to protect his pocketbook. Melania might have included financial penalties for it in her pre-nup. Or, he might have needed to renegotiate it, in anticipation of winning the presidency, because he needed her to stick around and pretend to have a loving connection with him. Exposure of his sex with Stephanie Clifford, for example, especially its timing, would have made that more expensive.

  16. The Old Redneck says:

    The indictment and statement of facts are . . . a real anticlimax. None of this information is anything new. Maybe there will be a superseding indictment with some heft to it, but what Bragg has given us so far ain’t much. It looks like real small potatoes compared to hoarding classified documents and tampering with election results.

    • Rayne says:

      What in the hell were you expecting from a case about paying hush money to a sex worker to prevent damage to a campaign?

      It’s like you don’t even read posts here.

      • The Old Redneck says:

        That’s exactly the point. After all that time and investigation, Bragg’s indictment didn’t offer anything we hadn’t heard before. Everything in it is stuff the public is already jaded about.
        Bragg will have to prove these charges beyond a reasonable doubt. People shouldn’t let their visceral dislike of Trump obscure how hard that is. It only takes one doubter on a jury to derail a conviction.
        Of course, we don’t know how all this will unfold. But if all we get is what’s in the indictment, the case looks defensible. That is not a defense of Trump personally; rather, it’s the reality of what we’re seeing so far.

        • PJB says:

          Totally agree with your last 2 paragraphs. As to the first, I don’t like the premise of disappointment because the indictment was not revelatory. I come to this site because we by and large do not conflate legal and national security implications with public entertainment. If I want “nothing new here, any train wrecks or 3 alarm fires in Peoria?” I can watch CNN.

  17. sandman8 says:

    If a mob boss is pulled over for doing 71 mph in a 55 mph zone, shouldn’t he be charged with speeding?

    If he then tries to bribe the cop or otherwise cover up the offense, shouldn’t he be charged for any related offenses?

    Does the fact that he may run a global criminal enterprise matter? To the law? In practice?

  18. clyde g says:

    After the arraignment, outside the courthouse, Trump’s lawyers answered some reporters’ questions. Tacopina said, “If this man’s name was not Donald Trump there is no scenario we’d be here today based on these charges.” And I thought, “Yes, if any other businessman did what is charged, he’d be arraigned and no press or cameras would be there. But he’d be charged as 100s have been before him.” And maybe some feel the (publicly known) facts and law don’t support the charges, but the justice system and jury will decide that. Isn’t that the way it’s supposed to work?

    And as for timing, I expect that each prosecutor is working independently and will either bring charges if and when they feel it’s warranted – or drop the matter. Isn’t that the way it’s supposed to work?

  19. hollywood says:

    So a motion to recuse the judge. Loser.
    A motion for change of venue. Loser.
    A motion to dismiss based on the SOL. Probably requires a motion for summary judgement.
    What else?

    • bmaz says:

      There is no “summary judgment” in criminal law. Win a motion to dismiss or not. Maybe a motion to suppress that eliminates the state’s case (which is not really an option here). That’s it.

      • hollywood says:

        Maybe an independent federal court effort to enjoin the state court proceeding. Seems like a tough slog.

        • bmaz says:

          On what grounds? There is a problem here. Has to be dealt with, one way or the other, in state court first. There is no federal court, i.e. SDNY, dying to take this up. Nor should they be. This not a federal case at current posture.

        • hollywood says:

          Well he tried it with the Mar-a-Lago search, but ultimately failed. And I agree there does not appear to be a Judge Cannon eager to serve him at SDNY.

        • bmaz says:

          Think would have to be raised in the first instance in NY before approaching a federal court. In this case SDNY who would, generally, hate such an approach.

  20. Curious George says:

    Next court date is reportedly not until December 4.

    As I said before, this case will be off the front page in short order and will effectively disappear once the next criminal case is charged.

  21. Dryly 41 says:

    Does anyone who has read the indictment know if income tax evasion by reason of deducting the $130,000 disguised as attorney fees as an ordinary and necessary business expense was piggy backed on to the falsification of business expenses???

    • earlofhuntingdon says:

      No idea. But if Trump had paid the $130k himself, as a personal expense, it would not have been deductible. He would never pass up a chance to make a personal a deductible business expense, a pattern adopted by quite a few owners of closely held companies. Especially so because he hates paying anybody anything, but he loves screwing the tax man.

      One of Trump’s legion of mistakes was not to appreciate how different his exposure was as a candidate and public official than it was as a private real estate developer. Reportedly, more than one adviser was frustrated that he failed to make that transition.

      • PJB2point0 says:

        Based on the breadcrumbs in the indictment and statement of facts, it seems to me Bragg is leaving open 3 possible tying felonies as the predicate to elevate the business records charges from misdemeanors to felonies: federal election fraud, NY law election fraud and NY tax fraud. I’d guess he argues all 3 in opposition to Trump’s motion to dismiss sometime between now and August.

  22. Willis Warren says:

    If we assume that Jan 6th happened because Trump feared jail… this doesn’t seem like the case he was afraid of

  23. Willis Warren says:

    Also, the original source of the Stormy stuff was the WSJ. I’m almost positive that Trump was the source for that story, as the Mueller team came out to deny the facts and the media jumped on it like that meant it wasn’t true

  24. Cosmo Le Cat says:

    I heard it said that under NY law and precedent, the falsification of a business record in a manner that makes a personal payment into a business expense elevates the falsification into a felony, even if the tax deduction is not later taken. What I heard was the prosecution does not have to prove the specific deduction was actually entered on a tax return. The only conceivable reason why a nondeductible personal expenditure would be entered on corporate books as a business expense is to create a tax deduction, so it is a felony. These falsifications were made because Trump wanted to finagle a way to create a tax deduction for a personal nondeductible expenditure (assuming, as Trump claims, it was solely to keep Melania from learning about his affair), even if he later realized that he was under scrutiny and declined to take the deduction (as someone who did corporate accounting, I have no idea how the deduction could be declined without making other false entries on a tax return, as the money expended has to be accounted somehow).

    Also, there’s the matter of AMI falsifying records of its payments on Trump’s behalf. Those were for Trump’s personal benefit, so the non-reimbursed expenditures by AMI on Trump’s behalf were income for Trump for which he did not pay personal taxes (again, accepting Trump’s assertion that these payments were not campaign contributions). As I understand it, if Trump successfully asserts the payments were unrelated to the campaign, it makes no difference, and may even make conviction easier, because there would be no issue of federal preemption of NY state election laws and thus no need to consider whether NY law contemplated violation of federal election laws as an offense that elevates a misdemeanor into a felony.

      • Troutwaxer says:

        So what does New York law allow or not allow in terms of raising Trump’s misdemeanor’s into felonies? Or is this a matter for a later, superseding indictment?

        • bmaz says:

          I don’t know, that is yet to play out. But it will be played out. If Bragg has to supersede at this point, he is even more worthless than I, and attys in NY I know, thought.

        • Troutwaxer says:

          Do you think he filed the case before he had it all together because there was some problem with the statute of limitations which made it necessary to get some of the charges into the judicial system immediately?

    • c-i-v-i-l says:

      There was a long Twitter exchange among several lawyers who strike me as thoughtful, re: whether there was any tax fraud and whether it being internal ledger statements made the case harder. IANAL and so cannot judge the arguments’ accuracy but found the discussion interesting: (scroll up to see the context, I’m just choosing that one because the conversation branches with the multiple participants, and this branch has a good chunk of the exchange).

  25. LordAvebury says:

    If we were dealing with anyone other than Trump, I could imagine the DA and defense coming to an agreement that the elevation to felony is a stretch, why not just plead guilty to the misdemeanor? What would the penalty for 34 business record falsification misdemeanors be? An inconsequential fine, probably.

    Of course the likelihood of Trump pleading guilty to anything is……

    That said, I rather liked John Ganz’s take on all this:

    “So maybe the sense of anti-climax, the lack of dramatic denouement, the slight air of boredom around the whole thing is actually a positive sign. After all, a proper trial should lack the satisfactions of vengeance. It should dissipate rather than concentrate public passion. It’s notable that there were no really significant mass public demonstrations either for or against Trump yesterday. I just don’t think they will happen. I don’t think there will be a wave of terror. I don’t think this will generate much public enthusiasm in any direction at all. Good! This all should and will become even more boring.”

  26. pdaly says:

    wrt Manhattan DA indictment and statement of facts re: Trump, writer and appellate defense lawyer Teri Kanefield brings up this curious detail she noticed about NY state law. She readily admits she is not an expert on NY law as she practiced in CA and is likelly to update her post as she learns more.

    “I would have thought that the other crimes would have been alleged alongside felony falsification of business records to get to a felony, but I found this* on the New York state court website. To prove this crime, the prosecution needs to prove that the records were falsified with an “intent to defraud that includes an intent to commit another crime or to aid or conceal the commission.” In other words, the prosecutor does not have to prove the underlying crime. All the prosecution has to prove the intent to commit a crime.”

    *Kanefield hyperlinks the word “this” to

    • Rayne says:

      And a substantive portion of the crime was already admitted by a co-conspirator who pleaded to excess campaign contributions.

      • pdaly says:

        Yes, and as you and others pointed out above, it appears Trump explains his state of mind, his goal of buying people’s silence until the election is over– after which it does not matter whether those people receive their hush money.

    • bmaz says:

      Intent. There is that pesky word again. I wonder, how does Ms. Kanefield think “intent” can be proved up to a jury, beyond a reasonable doubt, without establishing the nexus with the “underlying crime”? Is she alleging that any crime would be enough?

      What in the world is she saying? So, yeah, maybe she should update.

        • bmaz says:

          She is not wrong in that regard, NY law (and court structure) is often peculiar. But it still boils down to what the final form of jury instructions are. And my heavy bet is that intent is, as it usually is, a serious issue.

  27. Cosmo Le Cat says:

    I listened to a NY lawyer speaking with authority on MSNBC while I was driving. He addressed the criticism directed at Bragg because neither the indictment nor accompanying statement disclose the underlying crime that elevates this to a felony. Clearly, Bragg was unrevealing. Very smart and proper strategy, according to the NY lawyer. He said in NY the 2nd crime need not be revealed until the time of jury selection, although I believe NY has an optional pre-trial process where the defendant can demand more info.

    Another point, raised by c-i-v-i-l above, is whether the 2nd crime needs to be committed or whether there simply needs to be an intent to commit the 2nd crime. Ryan Goodman, both on twitter and in a justsecurity article, addresses the point carefully. The statute says intent to defraud, which is interpreted very broadly in NY. As I pointed out in another comment, there is no other reason to create a false business record where a personal nondeductible expenditure is entered as a corporate business expense other than with intent to commit the crime of tax evasion.

    Perhaps this example of a false record that is NOT intended to commit a crime will be illustrative. If a person writes “limousine services” on a personal credit card receipt as payment for adult sex services, that is a false record. However, if the receipt was not falsely entered into business records as a deduction and if the credit card charge was paid, then there was no intent to defraud. The receipt was not created with intent to defraud the bank or to evade taxes.

    • bmaz says:

      Goodman and Weissmann have been toady clowns on this issue from the start, and are gadabout on every media available making bank off of it.

      Who was the “NY lawyer speaking with authority”? Dan Alonso?

      “He said in NY the 2nd crime need not be revealed until the time of jury selection”. While that may, technically, be true, what a load of shit. What if Big Alvin Bragg doing where he has to hide his entire nutsack? This shit is just pathetic. Would you, or anybody else, be advocating for this hollow garbage if the defendant were anybody but Trump. Again, the amount of space being used up to support total horse manure is astounding.

      • Cosmo Le Cat says:

        Sorry, I mentioned I was driving because I could not catch the name of the attorney. Former Manhattan deputy prosecutor Dan Horwitz is on MSNBC right now with Ari Melber, two more Jewish attorneys like Goodman and Weissmann. Horwitz just said, “its black letter law in New York” that the legal theory does not necessarily have to be elucidated until the time of trial, and that it’s an excellent strategy by the prosecution since at least two theories are available.

        • bmaz says:

          Ooops, sorry, did not pay enough attention to the “I am driving” part. Maybe they are all correct, but it is still beyond chickenshit by Bragg. After all these years, he cannot even have the balls to state his theory? If so, he is a hide the ball coward. And a joke.

        • Cosmo Le Cat says:

          As a long-time student of the law, I really value you sharing your knowledge and experience in the real world of practice.

        • bmaz says:

          As Inspector Clouseau said at the end of the original Pink Panther, “It is not easy you know”. (As he was arrested).

        • canajan-eh_I says:

          Furriner here. Is there something special about “jewish lawyers” as opposed to muslim, catholic. protestant,dissenter, or ….. lawyers?

          [Welcome back to emptywheel. This is your second username. Can I assume this is the one you’ll stick with going forward? Thanks. /~Rayne]

        • Rayne says:

          No, there isn’t, but it’s rather odd the network hasn’t made an effort to have a more diverse panel of lawyers especially since Passover begins today.

        • Rayne says:

          You’re asking the wrong person since I’m a long-lapsed Catholic and not in management at that network.

        • Rayne says:

          No, I don’t think it’s all you need to know. Being a Canadian, would it appear at all odd if a panel of experts on a major network were all Catholic Quebecois — especially on a Christian holiday? Would it appear off at all if a national story feature never included First Nations’ persons for opinions?

          In case you don’t read any of my work here, I’m asking the rhetorical questions as a BIPOC woman who also happens to be a lapsed Catholic. US media should be more sensitive to diversity of perspective because its audience is diverse.

    • Rayne says:

      Look, Shugerman’s essay has already been pointed out in threads here if you’d bothered to check before dumping a non-gift link.

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