Robbins: What the Trump indictment says
For the first time in our history, a former United States president has been criminally indicted. He has been arrested, booked, and fingerprinted. How it all turns out remains an open gesticulating question. Especially with a likely federal indictment, and another one in Georgia salivating in the wings.
Even before the first shoe dropped, many folks were sharpening their opinions, postulating and pontificating over what it all means and over Trump’s damning guilt or saintly innocence.
What, though, does the indictment say?
First of all, it is worth noting that an indictment is a legal accusation, admittedly one filed after months of thoughtful inquiry and contemplation. While seldom welcomed, it is not a finding of either guilt or innocence. That remains to be determined, after trial, by a jury.
In a nutshell, what the New York/hush money indictment alleges is that the ex-president is guilty of 34 counts of criminal misconduct, each and every one of them a felony. Specifically, the indictment alleges that in paying off porn star Stormy Daniels to cover up the ex-president’s alleged sexual dalliance with her in a bid to shush the matter on the cusp of the 2016 presidential election, Trump directed his peeps to falsify his business records and, in so doing, deliberately violated campaign finance laws.
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The Manhattan prosecutor’s office alleges that Trump attempted to conceal the hush money payments by falsely labeling them and various related transactions as legal expenses and by arranging for a tabloid publisher to kill the story of a woman who claimed a second scandalous sexual relationship with Trump. In so doing, the prosecutors claim, Trump repeatedly violated a New York corporate record-keeping law and orchestrated — or at least agreed — to contravene campaign finance laws.
All 34 felony charges against Trump are identical, each carrying the possibility of up to — gulp! — four years in prison. That notwithstanding, however, even if the gavel comes down on Trump’s elaborately coiffed noggin, the possibility of the ex-president in an orange jumpsuit is minimal at best as judges rarely sentence defendants for such crimes to time behind bars.
But still …
And, the Georgia and federal indictments may be horses of an entirely different shape and hue. What the ex-president may face if and when they come around the mountain — the thundering hooves of which can already be discerned — may indeed land with much, much graver consequences.
But for now, the canary in the coal mine is New York.
While the indictment itself is a bare-bones document that recites with stone-faced simplicity the alleged offenses, the Manhattan District Attorney’s office also released a 14-page statement of facts that lays out the case in greater detail. If the indictment is the squeeze, the statement of facts is the juice.
Key to the DA’s case is boosting the charge of falsifying business records from what is usually a misdemeanor to a felony. The way the DA navigates so doing is upon the legal theory that if the defendant falsified the records to obscure a separate crime, the misdemeanor may be bootstrapped to a more serious, and much more consequential offense.
What the aggravating element appears to be is the admission from Trump’s former lawyer/fixer Michael Cohen that he arranged the $130,000 payment to the porn star in direct consultation with Trump in an attempt to aid Trump’s 2016 presidential bid.
“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,” the statement of facts says. “The participants [in the scheme] violated election laws,” it goes on to say, but to precisely which ones, it fails to state.
Perhaps most surprisingly, the charges do not include any tax fraud offenses that many had expected in order to underscore the seriousness of the case. However, what it does hold is that “The participants also took steps that mischaracterized, for tax purposes, the true nature of the payments made in furtherance of the scheme,” alleging that Trump paid an increased reimbursement to Cohen — a procedure known as “grossing up” — in order to compensate Cohen for the taxes he would owe by booking the money as legal fees when, had Trump simply reimbursed him for the $130,000, and had the payment been properly recorded, Cohen may not have owed anything because the reimbursement would not have represented income to him.
What these sorts of machinations suggest is a guilty mind — what is known in the law as a mens rea, a criminal defendant’s knowledge (and intent) that his act was wrongful.
However this comes out, this is fascinating, history-making stuff.
A couple of things are certain: first, there will be a legal war in Manhattan. Trump’s lawyers will do everything in their power to shape the litigation and will almost certainly barrage the court with motions; second, if and when the second and third shoes fall — Georgia’s and the federal indictments — Trump and team are going to be up to their eyeballs in a legal mess.
One hopes that justice will be served and that the chips will fall where Lady Liberty properly determines. Whether that will be guilt or innocence, for now, remains an open question, to be determined by one or more juries of the ex-president’s peers.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the law firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, and divorce, and civil litigation. Robbins may be reached at 970-926-4461 or at his email address at Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” and “Why I Walk so Slow” are currently available at fine booksellers.