Whereof One Can Speak 🇺🇦

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Justice Comes Calling for You Know Who

A real estate developer, former game show host and sometime politician was in court yesterday in New York City. A grand jury having issued an indictment, the Manhattan District Attorney will now prosecute him. As with other criminal cases, the wheels of justice will grind slowly. The defendant isn’t due back in court until December, unless there’s a plea bargain first. If the matter eventually goes to trial, it won’t be until 2024 (or even later).

This case has captured many people’s attention. The defendant’s trip from his house in Florida to a New York courtroom was given the kind of coverage we haven’t seen since John Kennedy’s body was flown back to Washington or O. J. Simpson was followed by police on the San Diego Freeway.

I confess to have followed the case fairly closely myself (while avoiding cable “news”). I think Jennifer Rubin of The Washington Post, who has called herself “a recovering lawyer”, summed up the situation quite well:

The indictment centers on hush money payments to adult-film star Stormy Daniels and two others possessing information that [the defendant] did not want circulating before the 2016 election. At the heart of the allegations: A raft of check stubs, corporate records and invoices documented the payments as legal services to his former attorney Michael Cohen….

Any pundits who speculated ahead that the case was weak, misreported the “intent” requirement under New York law or ignored obvious arguments putting the charges in compliance with the statute of limitations may have been premature in denigrating the case. Once more they’d be wise to hold their fire given some strategic ambiguities apparent in the indictment.

[District Attorney] Bragg sets out the allegations: [the defendant] was part of a scheme to pay off three individuals (a doorman, Daniels and a second woman, Karen McDougal) as part of an effort to “catch and kill” allegations of extramarital affairs (which [he] has denied). The indictment alleges that [he] directed Cohen (who already pleaded guilty to federal crimes based on these same facts) to make the payments through shell companies and invoices falsely labeled “legal retainer.” A plethora of check stubs, invoices and general ledger entries form the foundation of the case.

Importantly, the indictment ties [defendant’s] actions to the election in two key ways: First, evidence of his desire to drag out payments to Daniels beyond the election so he might not have to pay up in full. Second, as soon as he was sworn in, the doorman and “Woman 1” were released from their deals. Once the election was over, [the defendant] didn’t care what they said.

And then, in Paragraph 44 of the indictment, Bragg quotes from the plea entered by Cohen in federal court:

“[O]n or about October of 2016, in coordination with, and at the direction of … the defendant], I arranged to make a payment to a second individual with information that would be harmful to the candidate and to the campaign to keep the individual from disclosing the information…. I participated in this conduct …, for the principal purpose of influencing the election.”

[The defendant] is not being singled out or treated unfairly. The core of the indictment alleges that [he] violated New York books and records law, a crime that is regularly prosecuted, according to research compiled by former prosecutors. In this case, those violations arguably impacted an extremely close presidential election. False statements in furtherance of a scheme to pull the wool over the eyes of voters is hardly inconsequential.

The indictment suggests two options to elevate charges. Bragg alleges that records were falsified in furtherance of a scheme to contravene state and federal election laws. He also says [the defendant] took steps to mischaracterize the true nature of the payments for tax purposes. Tax law provides another sound basis for bumping the charges up to felonies.

While the indictment does not set out precisely which crimes elevate books and records violations to felonies, Bragg at his news conference pointed specifically to misstatements to tax authorities, to federal election law and to N.Y. Election Law § 17-152, which makes it illegal for “two or more persons [to] conspire to promote or prevent the election of any person to a public office by unlawful means.” With the testimony of Cohen and others, plus the documents, this may not be hard to prove.

What about what’s not in the indictment? Bragg did not cite specific statutes he will rely upon to pursue felonies. But there is nothing sneaky or underhanded about that. Bragg presented what he thought he needed to — no more and no less. Media impatience is no reason to reveal more in an indictment than he would normally do at this stage. (New York legal experts point out to me that even in the jury instructions, the prosecutor need not specify the precise crime that bumps up a charge to a felony.)

Brookings Institution’s Norman Eisen, who has written extensively on the case, tells me, “The 44-paragraph recital of the evidence is absolutely damning.” And while we may be frustrated with the lack of legal argument, he says that “there’s no legal requirement in New York for Bragg to plead with any more specificity than he has done here.”

Eisen, who served as co-counsel to the House Judiciary Committee in [the defendant’s] first impeachment hearing, adds, “There will undoubtedly be much more to come, both when [the defendant] files his inevitable bill of particulars, and as the case otherwise unfolds through the trial and pretrial process.” There is ample case law for using federal and state election law violations to bump up a records falsification case.

While the complaint goes into some detail on efforts to make sure Cohen knew he was “loved” and had friends in “high places” (the defendant runs a “pressure campaign,” as the indictment titles one section), it does not specifically charge witness tampering or obstruction. But such actions speak to consciousness of guilt, an awareness that [the defendant] needed Cohen to remain quiet because he feared their scheme would become public.

At his news conference, Bragg said, “Under New York state law, it is a felony to falsify business records with intent to defraud and intent to conceal another crime. That is exactly what this case is about. Thirty-four false statements made to cover up other crimes. These are felony crimes in New York state no matter who you are.” Bragg is certainly right that these are “bread and butter” white-collar crimes routinely prosecuted. The New York Times reports, “Since Mr. Bragg took office in 2022, prosecutors have filed 117 felony counts of the charge, against 29 individuals and companies, according to data kept by the office.”

While frustrating for the media and legal pundits, we are not likely to get more detail until pretrial motions are heard [later this year]. The judge put a protective order on the evidence, so that cannot be shared with the public. And while the judge reportedly admonished [the defendant] about threats to the prosecutor or others, he will be free to share (or not) his views and arguments — unless later subjected to a gag order…. As a criminal defendant, he cannot say everything he wants; like other defendants, if he threatens court personnel or incites violence, he’ll find himself back before the judge. (He certainly went right up to the line during remarks [in Florida], with references to the judge and his family.)

…  The judge and jury won’t care how loudly [the defendant] and his cultists whine about his plight. They certainly won’t care that the media wants to find out Bragg’s legal strategy. The matter rests with the New York court — which is what equal justice under the law demands.

It matters not one bit that the defendant is being investigated by other agencies for other crimes or that millions of Americans chose to give someone like him a victory in the Electoral College. It also doesn’t matter one bit that people who think the criminal case is weak will be given a lot of publicity (controversy sells). After all these years, this guy is finally the defendant in a criminal case. Let justice be served.

PS: The indictment isn’t worth reading. The Statement of Facts that came with the indictment is much more interesting. It describes the conspiracy to sway the election.

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