Finding Trump's felony.

What exactly was Trump's crime? False business records. Misdemeanors.

And what exactly did Trump do to turn those misdemeanors into felonies? That is harder to pin down, but the judge found three ways.

"Convicted felon!" 

Democrats are relieved by the guilty verdict. Some are giddy. I am not. I am wary.

I have the eerie feeling I had back at the end of 1999 when "irrational exuberance" pushed internet prices to new highs. I felt it again in 2006 when TV ads described 120% financing of mortgage loans. This won't last long.

The problem with this case isn't the evidence. Of course Trump entered false business records. We see them. 

Nor is it, to my mind, with the prosecution. If prosecutors see clear evidence of actual crimes, they should prosecute. What would be political would be failing to prosecute crimes done by people too rich, too famous, or too politically connected to prosecute. I oppose "too big to fail" law enforcement.

I have no problem with the jury, either.  Manhattan residents are as close as we are going to find in America of a jury of Trump's peers. They are his neighbors, and like him, highly educated, and wealthy enough to live on the most expensive real estate in America.

But a college classmate, Matt Naitove, raised a potential issue, one that could be a basis for reversal on appeal. A reversal on appeal would be a disastrous "October surprise" for Democrats. The "convicted felon" mark of disqualification would become a mark of vindication. Naitove asked what exactly was the secondary crime Trump covered up by making the false business records. There needs to be a secondary crime for these false records to be felonies. 

Naitove describes the circular quality to the prosecution's case. The false business records are crime #1, but they are only of issue here because they furthered crime #2 – influencing an election “by unlawful means.” That “unlawful means” (crime #3), apparently, is deceptive business records that hid from the public the whole “hush money” business. All that boils down to this: The false business records are illegal -- crime #1-- because they are false, and crimes #2-3 are because false business records are intended to deceive, but that is a given in crime #1, not a second (or third) crime. 

Naitove's warning set off a flurry of agreement, disagreement, and questions among other classmates who saw his warning. "What exactly is the felony here?" And, "If a prosecutor cannot even state or identify an actual, legally-cognizable felony, the purported defendant can’t reasonably be convicted, right?" 

If this is a sticking point for him and others, it may be one for some appeals court.

Naitove earned an MS degree at Columbia Graduate School of Journalism and then accepted a first job, which became a lifelong career, at Plastics Technology magazine. He retired from that publication after 51 years. He told me he grew up in New Hampshire, which used to be rock-ribbed Republican territory. He said that while it has trended Democratic he has moved "rather in the opposite direction."

 

Naitove

Guest Post by Matt Naitove

New York State law, apparently, forbids trying to influence an election “by unlawful means.”  Trying to influence an election, by itself, can’t be illegal, since that’s what all politicians and their hirelings do every day. So, it’s all about the “unlawful means.”  A Non Disclosure Agreement -- an NDA -- hush money” in the vernacular --  is not unlawful means. Not publicly owning up to embarrassing but non-criminal behavior is not unlawful means. So what is? Covering up embarrassing information by an opaque bookkeeping entry? That would be a tautology. An improper campaign contribution? Numerous legal experts have stated that the Federal Election Commission (FEC )would NOT accept an NDA as a legal campaign expense. Such experts have also said that a candidate (such as Trump) can contribute unlimited amounts to his/her own campaign – but again, this is not considered a campaign contribution by the FEC, any more than buying a new suit or a haircut to make the candidate more attractive to his audience. 

So there are three nested “Russian dolls” in this case. On the outside, the 34 expired misdemeanors (if even that.) Inside that outer shell is the NY State law against influencing an election by unlawful means. The innermost doll is the unlawful means, which has never been opened to see what’s inside. That’s the unconstitutional flaw in this case.

                                                            --   --   --

My own takeaway is political, rather than legal. It is a warning of a potential trap door if Democrats get too comfortable calling Trump a convicted felon and there is an appellate reversal.

But appellate courts may not be stuck in the circle Naitove describes. I urge readers to take the time to read Judge Juan Merchan's jury instructions. He says there are three ways to elevate the misdemeanors into felonies. 

    By covering up an illegal corporate campaign contribution. 

    By creating new false business records. 

    By violating tax laws with improper deductions. 

Here is Judge Merchan: 

For the crime of Falsifying Business Records in the First Degree, the intent to defraud must include an intent to commit another crime or to aid or conceal the commission thereof. Under our law, although the People must prove an intent to commit another crime or to aid or conceal the commission thereof, they need not prove that the other crime was in fact committed, aided, or concealed.

The People allege that the other crime the defendant intended to commit, aid, or conceal is a violation of New York Election Law section 17-152. Section 17-152 of the New York Election Law provides that any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of conspiracy to promote or prevent an election. Under our law, a person is guilty of such a conspiracy when, with intent that conduct be performed that would promote or prevent the election of a person to public office by unlawful means, he or she agrees with one or more persons to engage in or cause the performance of such conduct.

Although you must conclude unanimously that the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you need not be unanimous as to what those unlawful means were. In determining whether the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you may consider the following: (1) violations of the Federal Election Campaign Act otherwise known as FECA; (2) the falsification of other business records; or (3) violation of tax laws.

The first of the People’s theories of “unlawful means” which I will now define for you is the Federal Election Campaign Act. Under the Federal Election Campaign Act, it is unlawful for an individual to willfully make a contribution to any candidate with respect to any election for federal office, including the office of President of the United States, which exceeds a certain limit. In 2015 and 2016, that limit was $2,700. It is also unlawful under the Federal Election Campaign Act for any corporation to willfully make a contribution of any amount to a candidate or candidate’s campaign in connection with any federal election, or for any person to cause such a corporate contribution. For purposes of these prohibitions, an expenditure made in cooperation, consultation, or concert with, or at the request or suggestion of, a candidate or his agents shall be considered to be a contribution to such candidate.

The terms CONTRIBUTION and EXPENDITURE include anything of value, including any purchase, payment, loan, or advance, made by any person for the purpose of influencing any election for federal office. Under federal law, a third party’s payment of a candidate’s expenses is deemed to be a contribution to the candidate unless the payment would have been made irrespective of the candidacy. If the payment would have been made even in the absence of the candidacy, the payment should not be treated as a contribution. FECA’s definitions of “contribution” and “expenditure” do not include any cost incurred in covering or carrying a news story, commentary, or editorial by a magazine, periodical publication, or similar press entity, so long as such activity is a normal, legitimate press function. This is called the press exemption. For example, the term legitimate press function includes solicitation letters seeking new subscribers to a publication.

The second of the People’s theories of “unlawful means” which I will define for you now is the falsification of other business records. Under New York law, a person is guilty of Falsifying Business Records in the Second Degree when with intent to defraud, he or she makes or causes a false entry in the business records of an enterprise.

For purposes of determining whether Falsifying Business Records in the Second Degree was an unlawful means used by a conspiracy to promote or prevent an election here, you may consider: (i) the bank records associated with Michael Cohen’s account formation paperwork for Resolution Consultants LLC and Essential Consultants LLC accounts; (ii) the bank records associated with Michael Cohen’s wire to Keith Davidson; (iii) the invoice from Investor Advisory Services Inc. to Resolution Consultants LLC; and (iv) the 1099-MISC forms that the Trump Organization issued to Michael Cohen.

The People’s third theory of “unlawful means” which I will define for you now is a Violation of Tax Laws. Under New York State and New York City law, it is unlawful to knowingly supply or submit materially false or fraudulent information in connection with any tax return. Likewise, under federal law, it is unlawful for a person to willfully make any tax return, statement, or other document that is fraudulent or false as to any material matter, or that the person does not believe to be true and correct as to every material matter. Under these federal, state, and local laws, such conduct is unlawful even if it does not result in underpayment of taxes.

 

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