I Was an Attorney at the D.A.’s Office. This Is What the Trump Case Is Really About.
By Rebecca Roiphe
"Ms. Roiphe is a former assistant district attorney in the Manhattan District Attorney’s Office.
Now that the lawyers are laying out their respective theories of the case in the criminal prosecution of Donald Trump in New York, it would be understandable if people’s heads are spinning. The defense lawyers claimed this is a case about hush money as a legitimate tool in democratic elections, while the prosecutors insisted it is about “a criminal scheme to corrupt the 2016 presidential election.”
Yet this case is not really about election interference, nor is it a politically motivated attempt to criminalize a benign personal deal. Boring as it may sound, it is a case about business integrity.
It’s not surprising that the lawyers on both sides are trying to make this about something sexier. This is a narrative device used to make the jurors and the public side with them, but it has also created confusion. On the one hand, some legal experts claim that the conduct charged in New York was the original election interference. On the other hand, some criticsthink the criminal case is a witch hunt, and others claim it is trivial at best and at worst the product of selective prosecution.
As someone who worked in the Manhattan district attorney’s office and enforced the laws that Mr. Trump is accused of violating, I stand firmly in neither camp. It is an important and straightforward case, albeit workmanlike and unglamorous. In time, after the smoke created by lawyers has cleared, it will be easy to see why the prosecution is both solid and legitimate.
It would hardly make for a dramatic opening statement or cable news sound bite, but the case is about preventing wealthy people from using their businesses to commit crimes and hide from accountability. Manhattan prosecutors have long considered it their province to ensure the integrity of the financial markets. As Robert Morgenthau, a former Manhattan district attorney, liked to say, “You cannot prosecute crime in the streets without prosecuting crime in the suites.”
Lawmakers in New York, the financial capital of the world, consider access to markets and industry in New York a privilege for businesspeople. It is a felony to abuse that privilege by doctoring records to commit or conceal crimes, even if the businessman never accomplishes the goal and even if the false records never see the light of day. The idea is that an organization’s records should reflect an honest accounting. It is not a crime to make a mistake, but lying is a different story. It is easy to evade accountability by turning a business into a cover, providing a false trail for whichever regulator might care to look. The law (falsification of business records) deprives wealthy, powerful businessmen of the ability to do so with impunity, at least when they’re conducting business in the city.
Prosecutors and New York courts have interpreted this law generously, with its general purpose in mind. The element of intent to defraud carries a broad meaning, which is not limited to the intent of cheating someone out of money or property. Further, intent is often proved with circumstantial evidence, as is common in white-collar cases. After presenting evidence, prosecutors ask jurors to use their common sense to infer what the possible intent may be, and New York jurors frequently conclude that a defendant must have gone to the trouble of creating this false paper trail for a reason.
Mr. Trump is accused of creating 11 false invoices, 12 false ledger entries and 11 false checks and check stubs, with the intent to violate federal election laws, state election laws or state tax laws. The number of lies it took to create this false record itself helps prove intent. His defense attorneys will claim that he was merely trying to bury a false story to protect his family from embarrassment. The timing of the payments — immediately after the potentially damaging “Access Hollywood” tape was released and right before the election — makes that claim implausible.
As many have pointed out, Michael Cohen, Mr. Trump’s former lawyer and fixer, is a witness with a remarkable amount of baggage. But as with most business records cases, his testimony will largely add color to the tweets, handwritten notes, bank documents and shell corporations. Documents don’t lie.
More important, jurors are particularly good at applying common sense. Mr. Trump didn’t go to all this trouble just to protect his family members, who might have known about accusations of his involvement with the porn star Stormy Daniels or similar ones. We may never learn which crime the jurors believe Trump was seeking to commit or cover up, but they can still conclude beyond a reasonable doubt that this was his intent.
It is not unusual for lawyers to give narrative arcs to their legal theories, reasons to care about the evidence and animating thoughts that may make jurors more inclined to convict or acquit.
When the jurors deliberate, they will weigh the warring narratives in light of the evidence, and the judge will instruct them in the law. Then the narrative frames should recede into the background. The key is to offer one that is both captivating and closely tied to the facts so that when the jurors put the pieces of evidence together, it is the story they believe.
If one side promises too much, it risks losing the jurors. In their opening remarks, Mr. Trump’s lawyers insisted that he was innocent, that all the witnesses were liars. Such a sweeping theory is a dangerous strategy because if the jurors believe part of the prosecution’s case, just one or two of the witnesses, then the jurors may lose faith in the defense altogether.
For the prosecution, the elements of the crime in this case do not require a finding that Mr. Trump interfered with the 2016 election. Nor does it matter whether he had sex with Ms. Daniels. Instead, the real elements concern the way Mr. Trump used his business for a cover-up. By emphasizing the crime he was intending to conceal rather than the false business records, the prosecution also risks confusing the jury into thinking about whether the lies affected the election. It might lead them to wonder why Mr. Trump wasn’t charged with this alleged election crime by the federal government — a talking point that he has promoted publicly.
Even if the case seems simpler in this light, we are still left with the question: Is it really worth charging a former president for this? While the New York business records law is important, it is no doubt true that the conduct pales in comparison with the effort to overthrow the 2020 election, at issue in the special counsel Jack Smith’s Jan. 6 prosecution of Mr. Trump.
Taking this case on its own terms as a business records case offers a different and arguably more convincing way to defend its legitimacy. It is a simple case that is similar to hundreds of other cases brought in New York. The simplicity and run-of-the-mill nature of the prosecution makes it easier to defend against claims of politicization in the following sense: Mr. Trump was a businessman for many years in New York long before he was president. If others would be prosecuted for this conduct and no man is above the law, then he should be, too.
So by all means, listen to the stories that the lawyers tell, soak up the drama of hush-money payments and the alternate universe in which Hillary Clinton won the election. But like the jurors who should ultimately consider the facts and law, it would be wise to focus on what the case is really about."
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