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A Modest Case for the Case Against Trump
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A Modest Case for the Case Against Trump

The indictment might not be strong, exactly, but neither is it as weak as many have argued.

Former President Donald Trump arrives to his hearing in Manhattan on April 4, 2023. (Photo by Ed Jones/AFP/Getty Images)

The merits of prosecuting Donald Trump for hush-money payments to Stormy Daniels were debated even before the indictment came down, and that debate certainly hasn’t cooled since Trump appeared in court Tuesday. The most illuminating document, though, is not the indictment itself but the statement of facts in support of the indictment. That statement of facts describes a case that, depending on the quality of the evidence offered to support it, may be stronger than many critics think.

While the Daniels payment has been discussed to death, the statement of facts also contains discussions concerning other payoffs that have received much less recent attention—such as the Karen McDougal payoff, which I predicted would be part of this case. The charges themselves still relate only to the Stormy Daniels payoff, because that is the only payoff that was reimbursed by Trump and the Trump Organization. But Manhattan District Attorney Alvin Bragg intends to present evidence of the other payoffs to establish a conspiracy on the part of Trump and other individuals to kill negative stories about him with payoffs that allegedly violated federal campaign finance laws.

Although the statement of facts doesn’t contain much that’s new or unexpected, some of its details confirm suspicions many of us have had for years—details that arguably support a contrarian case for the strength of the indictment. In my judgment, the indictment is not necessarily strong, but it is also perhaps not as weak as this week’s conventional wisdom would suggest. The statement of facts raises the possibility that several witnesses besides Cohen would be able to corroborate details of the scheme to kill stories about Trump, which provides critical context for Trump’s motives to falsify documents. The statement also refers to communications, including text messages, phone records, and at least one recording, all of which may corroborate Bragg’s case. And there is reason to question many of the arguments you have heard against the indictment, such as the contention that the statute of limitations bars these charges, or the argument that a state prosecutor cannot rely on federally proscribed conduct to elevate a state charge to a felony.

I’m a lawyer, so I’ll start with a lawyerly caveat: I’m a prosecutor, but I’m not a New York prosecutor. I don’t pretend to know the ins and outs of New York criminal procedure. Consider me a color commentator and nothing more.

The Nature of the Charges

The indictment contains a surprising 34 charges, each for the same crime: falsification of business records in the first degree. The counts cover a date range between February 14, 2017, and December 5, 2017—all during Trump’s presidency. There are 34 counts because the allegedly falsified documents include invoices, ledger entries, checks, and check stubs—each constituting a separate count. Each was allegedly created as part of a scheme to make it look as though Trump was paying Cohen for legal services on a monthly basis, when in fact (the statement of facts alleges) Trump and the Trump Organization made these payments to reimburse Cohen for the illegal hush money payments he and others had made.

The charges have faced considerable criticism: That the indictment is an attack on the rule of law—a Stalinist abuse of a prosecutor’s ability to find a crime for any given individual. That nobody would ever be charged with similar crimes if their name were not Donald J. Trump. That the basis for elevating the charges to a felony was obviously Donald Trump’s commission of federal campaign finance violations, which the feds never charged Trump with. That the statute of limitations had likely passed on the felony, making an already shaky indictment even more questionable.

In my view, such arguments overstate many of the problems with the indictment. (I have discussed much of this at greater length in a Substack post, but will give you the summary version here.)

The Scheme

The statement of facts alleges that in August 2015, the “Defendant” (Donald Trump), “Lawyer A” (his lawyer Michael Cohen), and the “AMI CEO” (David Pecker, CEO of American Media, Inc.) met at Trump Tower to discuss a scheme in which Pecker’s National Enquirer would be on the lookout for negative stories about Trump. Pecker promised to notify Cohen about any such stories:

At the meeting, the AMI CEO agreed to help with the Defendant’s campaign, saying that he would act as the “eyes and ears” for the campaign by looking out for negative stories about the Defendant and alerting Lawyer A before the stories were published. The AMI CEO also agreed to publish negative stories about the Defendant’s competitors for the election.

In December 2018, I noted on my blog that AMI had entered a cooperation agreement with federal prosecutors. That cooperation agreement had a statement of facts containing the following passage, which makes it clear that the parties had agreed on a “catch and kill” scheme to prevent the stories from ever being published:

In or about August 2015, David Pecker, the Chairman and Chief Executive Officer of AMI, met with Michael Cohen, an attorney for a presidential candidate, and at least one other member of the campaign. At the meeting, Pecker offered to help deal with negative stories about that presidential candidate’s relationships with women by, among other things, assisting the campaign in identifying such stories so they could be purchased and their publication avoided. Pecker agreed to keep Cohen apprised of any such negative stories.

I noted then that the Wall Street Journal had reported on the same meeting, but had explicitly named Trump as the other participant—and had made it crystal clear that Trump’s motive for the catch and kill scheme was to benefit the campaign:

As a presidential candidate in August 2015, Donald Trump huddled with a longtime friend, media executive David Pecker, in his cluttered 26th floor Trump Tower office and made a request.

What can you do to help my campaign? he asked, according to people familiar with the meeting.

Mr. Pecker, chief executive of American Media Inc., offered to use his National Enquirer tabloid to buy the silence of women if they tried to publicize alleged sexual encounters with Mr. Trump.

With Bragg’s indictment, we now know that, at least according to Bragg’s witnesses, it was indeed Trump. The real question: Is Pecker himself willing to testify to this fact? If so, the jury would not have to take Michael Cohen’s word alone. We do know that Pecker appeared before the grand jury shortly before the indictment was handed down, after having first testified to the grand jury in January. I would be surprised if Pecker is not on board—and if he is, that will be a real problem for Trump.

The Other Catch-and-Kill Stories

The statement of facts describes three different stories that were killed by AMI, allegedly to benefit Trump’s election prospects. The people involved are described as the “Doorman,” “Woman 1,” and “Woman 2.” Based on previous reporting, mostly from 2018, we know these people to be Dino Sajudin (the “Doorman”), Karen McDougal (“Woman 1”), and Stormy Daniels (“Woman 2”).

These payoffs do not all, as a technical matter, form the basis of the charges in the indictment. Only the Stormy Daniels payoff is formally charged in the indictment, because (as we will see) that is the only payoff that was reimbursed by Trump and the Trump Organization. But the statement of facts makes it clear that Bragg’s team intends to use evidence of these payoffs to paint a picture for the jury of an overall scheme between Trump, Cohen, and AMI to kill negative stories about Trump through illegal payoffs that violated federal campaign finance laws. Trump and Cohen were, according to the allegations of the statement of facts, directly involved in directing the McDougal payoff, and intended to reimburse it until AMI called off the repayment. The statement also alleges that Cohen directed AMI’s payoff to the Doorman. I believe that if you want to understand the full impact of Bragg’s overall case, you need to understand the big picture, which includes the involvement of Trump and Cohen in directing that all three witnesses be paid for their silence.

The ‘Doorman’: Dino Sajudin

Dino Sajudin was a doorman at Trump Tower who sold AMI a story in which he claimed to have knowledge that Trump had fathered an illegitimate child. AMI supposedly investigated the story and found it not to be credible. Bragg alleges that, pursuant to the agreed-upon scheme described above, AMI paid off Sajudin to hide the story until after the election.

In 2018 CNN reported that the AMI-Sajudin agreement was initially signed on November 15, 2015, and provided no payment to Sajudin if the story was not published. But the parties executed an amendment on December 17, 2015, stating that AMI would pay Sajudin $30,000 in return for exclusive and perpetual rights to the story. Sajudin agreed to pay $1 million as liquidated damages if he talked about the story to anyone. Here’s that amendment:

Bragg’s statement of facts explains its origins: “When AMI later concluded that the story was not true, the AMI CEO [Pecker] wanted to release the Doorman from the agreement. However, Lawyer A (Cohen) instructed the AMI CEO not to release the Doorman until after the presidential election, and the AMI CEO complied with that instruction because of his agreement with the Defendant and Lawyer A.” The amendment above appears to corroborate this allegation. The potential witnesses to Trump’s involvement with this arrangement could include Pecker and Cohen.

‘Woman 1’: Karen McDougal

Karen McDougal, a Playboy playmate with whom Trump allegedly had an affair, has discussed the affair publicly. She and Trump had sex numerous times between 2006 and 2007, she says. She even kept a journal documenting their various trysts. She reached an agreement with AMI in 2016 to keep quiet “in exchange for $150,000 and a deal to write articles for some of the company’s magazines and appear on at least two covers.” But she later filed suit to get out of the agreement after claiming that she “was not told AMI had no obligation to run articles she had written or that they were simultaneously negotiating deals to kill other negative stories about Mr. Trump, and that his representatives received constant updates throughout the negotiations last year.”

According to Bragg’s statement of facts, “the editor-in-chief of the National Enquirer and AMI’s Chief Content Officer” (whom the statement of facts calls the “AMI Editor-in-Chief”) and Cohen discussed the McDougal story “regularly” “over text message and by telephone.” That’s potential corroboration! The previously referenced 2018 AMI cooperation agreement laid out the essential facts of the deal between AMI and McDougal, including that its purpose was to prevent her story from coming out, and that Cohen had promised to reimburse AMI. As with the August 2015 meeting, however, the 2018 AMI cooperation agreement did not name Trump as one of the people directly involved.

By contrast, Bragg’s statement of facts puts Trump squarely in the mix:

AMI ultimately paid $150,000 to Woman 1 [McDougal] in exchange for her agreement not to speak out about the alleged sexual relationship, as well as for two magazine cover features of Woman 1 and a series of articles that would be published under her byline. AMI falsely characterized this payment in AMI’s books and records, including in its general ledger. The AMI CEO agreed to the deal after discussing it with both the Defendant and Lawyer A [Cohen], and on the understanding from Lawyer A that the Defendant or the Trump Organization would reimburse AMI.

Here again, there is a tantalizing reference to Pecker having had direct conversations with Trump and Cohen about the McDougal story—conversations that Pecker would be in a position to confirm or deny. The AMI editor in chief would also be a potential witness to conversations with Cohen about McDougal. These are presumably documented through texts retrieved from the FBI’s 2018 raid on Cohen. The AMI editor in chief would also be able to explain why he or she was keeping Cohen apprised of the story. (Presumably, under orders from Pecker.)

The statement of facts also cites a tape-recorded conversation in which Trump and Cohen discuss whether they are going to make the payment in cash or by check:

In a conversation captured in an audio recording in approximately September 2016 concerning Woman 1’s account, the Defendant and Lawyer A discussed how to obtain the rights to Woman 1’s account from AMI and how to reimburse AMI for its payment. Lawyer A told the Defendant he would open up a company for the transfer of Woman 1’s account and other information, and stated that he had spoken to the Chief Financial Officer for the Trump Organization (the “TO CFO”) about “how to set the whole thing up.” The Defendant asked, “So what do we got to pay for this? One fifty?” and suggested paying by cash. When Lawyer A disagreed, the Defendant then mentioned payment by check. After the conversation, Lawyer A created a shell company called Resolution Consultants, LLC on or about September 30, 2016.

This audio has been public since July 2018. The transcript of the conversation is not entirely clear, but the audio (in my view) makes it clear that Trump was advocating paying AMI in cash, rather than using a traceable check. Trump defenders have offered their own alternate interpretations, but I suggest you click the link and listen to it for yourself.

The statement of facts alleges that Cohen and AMI signed a deal to transfer the rights to a Cohen shell company for $120,000. But, Bragg says, AMI called off the transaction before the payment went through, after consulting with AMI’s general counsel, who—and I admit to speculating a bit here—advised AMI against the consummation of the transaction with words to the effect of “just what in the hell are you proposing to do again?” So it appears that, according to the statement of facts, Trump and Cohen never ended up reimbursing AMI, which is the only reason that we see no falsification of documents charges related to those payments.

Once again, it appears that the potential witnesses to these charges go beyond Michael Cohen.

‘Woman 2’: Stormy Daniels

Well, I think we all know about the Stormy Daniels episode, don’t we? Probably more than we ever wanted to know. But it’s worth running through the allegations of the statement of facts relating to Daniels.

Stormy Daniels, real name Stephanie Clifford, is a porn star who allegedly had a sexual encounter with Trump in 2006. In January 2018, the Wall Street Journal broke the story that in October 2016, Cohen had paid Daniels $130,000 to keep quiet about the encounter. Once again, AMI kept Cohen in the loop. “The AMI CEO told the AMI Editor-in-Chief to notify Lawyer A,” Bragg says in the statement of facts, making the AMI editor in chief and Pecker potential witnesses.

In a passage that goes directly to the “John Edwards problem” of showing Trump was acting in defense of his campaign and not only his marriage, the Bragg statement of facts alleges in paragraph 19 that Trump directed Cohen “to delay making a payment” to Daniels because “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.” (Emphasis mine.) 

Bragg refers to “emails and text messages between and among” Cohen, Daniels’ lawyer, and the AMI editor in chief in which Cohen “attempted to delay making payment as long as possible.” The attempted delay would bolster the prosecution’s view on the critical issue of intent. If Trump had been trying to hide the details of his affairs from Melania, he would have had no particular reason to delay the payment, since he would want to hide those details from her forever. But if Trump was trying to hide his affair from the voters, he might have favored delaying the payment until after the election, in the hopes that he might never have to pay it. If Bragg can prove that it didn’t matter to Trump if the story were to come out after the election, well, so much for the John Edwards problem. Bragg’s statement of facts alleges: “Ultimately, with pressure mounting and the election approaching,” Trump “agreed to the payoff” and directed Cohen to proceed.

Fascinatingly, Cohen allegedly “discussed the deal with” Trump and Trump Organization CFO Allen Weisselberg. Readers might remember that Weisselberg pleaded guilty in late 2022 to several charges without cooperating with prosecutors to implicate Trump. Reports suggest that prosecutors have been threatening Weisselberg with more charges to incentivize him to cooperate, but so far it sounds like it has not worked. Stay tuned on that front.

Even if Weisselberg does not testify, Bragg seems to have more than just Michael Cohen’s testimony. If David Pecker testifies in a convincing fashion that he and Trump orchestrated a scheme to kill negative stories with illegal hush money payments, that could be a game-changer. Bragg also says he has relevant documents corroborating his case, which is not surprising, because we know the federal government had such documents. At Michael Cohen’s 2018 allocution hearing, a federal prosecutor described the evidence that the federal government could have used to support its campaign-finance charges against Cohen. Most of that evidence is likely now in Bragg’s possession, and included “[r]ecords obtained from an April 9, 2018 series of search warrants on Mr. Cohen’s premises, including hard copy documents, seized electronic devices, and audio records made by Mr. Cohen,” as well as “text messages, messages sent over encrypted applications, phone records, and emails.” Such material and additional witnesses will be crucial, because Michael Cohen has not been a model of probity over the course of his life, and has been making reckless statements that jeopardize this case as recently as March 30. Bragg has to corroborate Cohen’s testimony, or he has no viable case. It sounds like he may well have some of that corroboration.

I’ll now turn to some of the arguments that critics have made against the charges in the indictment. I’m not persuaded by many of these arguments.

The Feds Actually Did Charge Conduct that Elevates the Falsification Charge to a Felony

For example, it is not accurate to say, as many critics have said, that the feds declined to prosecute the only campaign finance violation that could elevate the misdemeanor to a felony. Falsifying business records is a misdemeanor that is elevated to a felony when the intent behind the falsification includes an intent to commit, aid, or conceal “another crime.”

The critical observation to make here is that “another crime” does not have to be Donald Trump’s own violations of federal campaign finance law. You can be guilty of a felony if you intend to “aid” or even “conceal” “another crime” committed by someone else. Notably, a campaign finance violation committed by Michael Cohen could be “another crime” that Trump was trying to conceal with the false recordkeeping. And Cohen pleaded guilty to campaign finance violations regarding both the Stormy Daniels and Karen McDougal payoffs. Even an intent to conceal Cohen’s campaign finance violations is a sufficient basis to elevate Trump’s falsification of records to a felony.

So the claim by many critics of the indictment—that the feds declined to prosecute the conduct that elevates the falsification of records misdemeanor to a felony—is pretty shaky. The feds did indeed consider these hush money payments to be a federal campaign finance violation crime—one committed by Cohen. That crime could arguably serve as the other crime mentioned in the statutory language.The critics’ arguments get even shakier when you consider the fact that the Department of Justice’s own rules prevented it from prosecuting Trump while he was president. Reporting suggests that the Biden DOJ passed on charging Trump for political reasons, including the fact that the Stormy Daniels affair seemed trivial in light of the January 6 insurrection. By no means is it clear that Biden’s DOJ passed on prosecuting Trump because they thought they didn’t have the evidence to support the charge. So how does it make sense to rely on DOJ’s possibly political decision to justify criticizing Bragg for ignoring those same political considerations?

Normal People Do Get Prosecuted for Falsifying Business Records

Another thing we hear from the critics: Normal people don’t get prosecuted in New York for falsifying business records to cover up campaign finance violations.

Oh yeah? Tell that to Richard Brega.

Brega ran Rockland County’s bus system and transported students on a multi-million dollar contract.

A Rockland County grand jury indictment in July 2017 accused Brega of, between April 2013 and August 2013, using 10 “straw donors,” including his family, friends, and employees of his company, Brega Transportation, to secretly funnel over $40,000 in (cash) campaign donations to the 2013 county executive campaign of legislator Ilan Schoenberger.

The indictment charged Brega with ten felony counts of falsifying business records, namely that “with the intent to defraud and commit another crime and to aid and conceal the commission thereof” Brega “caused” false entries regarding the donations to be entered in the business records of the New York State Board of Elections.

Brega’s campaign finance violation was a state one, to be sure. But I am aware of no similar case where the violation was federal and the New York prosecutors decided to take a pass simply for that reason. It is simply speculative to say that only Trump would be prosecuted for these crimes.

The Statute of Limitations ‘Problem’

Felonies in New York are subject to a five-year statute of limitations, and a lot of the conduct described in the statement of facts took place in 2016—because it was intended to influence the 2016 election. That sounds like a pretty good argument, right? And the specific instances of document falsification in the indictment are alleged to have occurred in 2017. That’s still more than five years ago. So don’t we have a clear statute of limitations problem? 

I don’t think we do. A pesky New York appellate case appears to bring this prosecution well within the statute of limitations. According to one well-respected legal commentator and former Dispatch staffer (yes, I am talking about David French), there is a problem with Trump’s potential statute of limitations argument:

New York law states that the limitation period, whether two or five years, does not include “any period following the commission of the offense” when “the defendant was continuously outside this state.” A 1999 New York Court of Appeals case held that the law meant that “all periods of a day or more that a nonresident defendant is out of state should be totaled and toll the statute of limitations.” Under that reading, that statute of limitations clock stopped ticking when Trump was away.

Trump was obviously away from New York for most of the period of January 20, 2017, to January 20, 2021 (and much of the time since, given that he moved to Florida). Any way you do the math, Bragg has brought this indictment well within the five-year statute of limitations, subtracting each day that Trump was out of New York.

You might think this is a weird and even an unfair rule. But when it comes to the rule of law, let’s remember that this is the rule that applies to every random citizen of New York charged with a felony. If it’s good enough for them, it’s good enough for Trump.

But Can a State Prosecutor Use a Federal Crime to Elevate the Falsification Charge to a Felony?

Some have pointed out that New York courts have not yet explicitly tested the concept of elevating a misdemeanor records falsification charge to a felony based on the defendant’s attempting to aid or conceal a federal crime. I don’t know how New York courts would treat this issue, but it is not obvious to me that it makes a difference. After all, it’s not that New York is criminalizing the campaign finance violations themselves. The statute merely criminalizes conduct that indisputably falls within state jurisdiction (falsifying records), and elevates it to a felony if that conduct is committed to aid or conceal “another crime.” The statute does not say “another state crime.” It is not immediately apparent to me that pre-emption doctrines would prevent elevating the crime to a felony by proving that the falsification was intended to conceal a federal crime. In my California practice, for example, I know that federal crimes commonly serve to enhance sentences, or to serve as prior convictions for purposes of elevating, say, a theft crime to a felony. I think falsifying records to cover up a federal crime is something New York penal law can reach, and does reach through this statute. Orin Kerr—as tentatively as I do here—also expresses puzzlement at the critics’ argument.

I would also be remiss if I did not mention the widely cited analysis of former Federal Election Commission member Bradley Smith, who long ago argued that hush money payments cannot be campaign finance violations. I don’t agree with this analysis, and it’s an argument that John Edwards lost when he litigated it at his trial, but the proposition has not been tested by the appellate courts.

So, Is It a Strong Indictment or Not?

The strength of this indictment will depend, as criminal cases so often do, on the quality of the evidence. Does Bragg have David Pecker lined up to implicate Trump? If so, good. Do text messages and emails and similar documentary evidence corroborate Pecker and Cohen? Even better! Do several other witnesses—perhaps lawyers brought in to negotiate the various deals, for example—have anything to add? Still better! Will Allen Weisselberg flip? I doubt it—but if he did, that could be the cherry on top of this prosecutorial sundae.

It’s tough to tell what Bragg really has, based on his statement of what he thinks he has. But the one thing we know is that this is not an obvious assault on the rule of law. Disagree with it if you like. Chip away at the evidence, by all means. But, contrary to what some of Trump’s most ardent supporters are claiming, Stalinism has not yet come to the United States in the form of this indictment, from what I can tell.

And that’s a good thing, right?

Patrick Frey is a deputy district attorney for Los Angeles County and has been the proprietor of patterico.com since 2003. His opinions are offered in his personal capacity and not on behalf of his office.