Analysis: A Surprise Accusation Bolsters a Risky Case Against Trump
"The unsealed case against Donald J. Trump accuses him of falsifying records in part to lay the groundwork for planned lies to tax authorities.
WASHINGTON — The unsealed indictment against former President Donald J. Trump on Tuesday laid out an unexpected accusation that bolstered what many legal experts have described as an otherwise risky and novel case: Prosecutors claim he falsified business records in part for a plan to deceive state tax authorities.
For weeks, observers have wondered about the exact charges the Manhattan district attorney, Alvin L. Bragg, would bring. Accusing Mr. Trump of bookkeeping fraud to conceal campaign finance violations, many believed, could raise significant legal challenges. That accusation turned out to be a major part of Mr. Bragg’s theory — but not all of it.
“Pundits have been speculating that Trump would be charged with lying about the hush money payments to illegally affect an election, and that theory rests on controversial legal issues and could be hard to prove,” said Rebecca Roiphe, a New York Law School professor and former state prosecutor.
“It turns out the indictment also includes a claim that Trump falsified records to commit a state tax crime,” she continued. “That’s a much simpler charge that avoids the potential pitfalls.”
The indictment listed 34 counts of bookkeeping fraud related to Mr. Trump’s reimbursement in 2017 to Michael D. Cohen, his former lawyer and fixer. Just before the 2016 election, Mr. Cohen had made a $130,000 hush money payment to the pornographic film actress Stormy Daniels, who has said she and Mr. Trump had an extramarital affair.
Various business records concerning those payments to Mr. Cohen, an accompanying statement of facts said, falsely characterized them as being for legal services performed in 2017. For each such record, the grand jury charged Mr. Trump with a felony bookkeeping fraud under Article 175 of the New York Penal Law. A conviction on that charge carries a sentence of up to four years.
But bookkeeping fraud is normally a misdemeanor. For it to rise to a felony, prosecutors must show that a defendant intended to commit, aid or conceal a second crime — raising the question of what other crime Mr. Bragg would contend is involved.
On Tuesday, Mr. Bragg suggested that prosecutors are putting forward multiple theories for the second crime, potentially giving judges and jurors alternative routes to finding that bookkeeping fraud was a felony.
As was widely predicted, he is pointing toward alleged violations of both federal and state elections laws. By doing so, he is in part plunging forward with a premise that has given pause to even some of Mr. Trump’s toughest critics.
As a matter of substance, it can be ambiguous whether paying off a mistress was a campaign expenditure or a personal one.
As a matter of legal process, to cite federal law raises the untested question of whether a state prosecutor can invoke a federal crime even though he lacks jurisdiction to charge that crime himself. Still, Article 175 does not say that the second intended crime must be a state-law offense.
To cite state law raises the question of why New York election rules would apply to a federal presidential election, which is governed by federal laws that generally supersede state laws.
At a news conference, Mr. Bragg pointed to both state and federal election law. He cited a New York state election law that makes it a misdemeanor to conspire to promote a candidacy by unlawful means, but did not explain why that law would apply to a presidential election. He also described a federal cap on campaign contributions without indicating why he had the authority to invoke a crime he could not himself charge.
But Mr. Bragg also introduced yet another theory, accusing Mr. Trump of falsifying business records as a way to back up planned false claims to tax authorities.
“The participants also took steps that mischaracterized, for tax purposes, the true nature of the payments made in furtherance of the scheme,” Mr. Bragg wrote in the statement of facts that accompanied the indictment.
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The statement of facts also described how Mr. Trump paid Mr. Cohen more than Mr. Cohen had paid Ms. Daniels to cover income taxes Mr. Cohen would incur. Mr. Bragg further emphasized that point in his news conference.
His wording was ambiguous in places. At one point, he seemed to suggest that a planned false statement to New York tax authorities was just an example of the ways by which Mr. Trump and Mr. Cohen purportedly violated the state lawagainst conspiring to promote a candidate through unlawful means.
But it is also a crime to submit false information to the state government. At another point Mr. Bragg seemed to put forward an alleged plan to lie to tax authorities — an intention to say Mr. Cohen had earned income for “legal services performed in 2017” to launder what was in reality a repayment — as a stand-alone offense.
In addition to covering up campaign-finance crimes committed in 2016, Mr. Bragg said: “To get Michael Cohen his money back, they planned one last false statement. In order to complete the scheme, they planned to mischaracterize the repayments to Mr. Cohen as income to the New York state tax authorities.”
In the courtroom, the prosecutor Christopher Conroy accused Mr. Trump of causing the Trump Organization to create a series of false business records, adding that he “even mischaracterized for tax purposes the true nature of the payment.”
That prosecutors cited the possibility of planned false statements on tax filings struck some legal specialists as particularly significant, given the speculation over how bookkeeping fraud charges would rise to felonies.
“The reference to false tax filings may save the case from legal challenges that may arise if the felony charges are predicated only on federal and state election laws,” said Ryan Goodman, a law professor at New York University.
Indeed, a range of election-law specialists on Tuesday expressed fresh doubt about whether Mr. Bragg could successfully use campaign finance laws alone to elevate the bookkeeping fraud charges to felonies. Among those skeptics were Richard L. Hasen, a University of California at Los Angeles legal scholar, and Benjamin L. Ginsberg, a longtime election lawyer for the Republican Party and a critic of Mr. Trump.
Even with the addition of the claim about intended false statements to tax authorities, Robert Kelner, the chairman of the election and political law practice group at the firm Covington & Burling, remained uncertain that it would show an intent to commit another crime.
“The local prosecutors seem to be relying in part on a bank shot exploiting Michael Cohen’s guilty plea in a federal campaign finance case,” he said. “But there were serious questions about the legal basis for the case against Cohen, making that a dubious foundation for a case against a former president. Prosecutors also allude vaguely to ‘steps’ taken to violate tax laws, but they say little to establish what that might mean.”
Still, Mr. Bragg emphasized that at this stage, prosecutors did not need to go into detail about what other crimes they believe Mr. Trump intended to commit.
But he will eventually have to show his hand. Barry Kamins, a retired New York Supreme Court judge who is now in private practice, said the next phase of the case would require prosecutors to divulge more.
“What is going to happen now is that the prosecutors are obligated to disclose things in discovery,” he said. “Defense counsel will learn in discovery the nature of the elections laws violations and the tax issues that were raised by Mr. Bragg in his statement of facts.”