Trump Arraignment: Smoke but no fire?

Former President Donald J. Trump was finally arraigned yesterday in New York state court on felony charges with a bare-bones 16-page indictment alleging 34 separate counts of “falsifying business records in the first degree… with intent to defraud and intent to commit another crime and aid and conceal the commission thereof, made and caused a false entry in the business records of an enterprise” by authorizing and improperly recording payments to “Lawyer A” (Michael Cohen). In a separate 13-page “Statement of Facts” filed with the court, Manhattan District Attorney Alvin Bragg provided background details supporting the indictment. Arraignment is the formal procedure in a criminal case where the defendant is notified of the charges and asked to enter a plea; Trump pled “not guilty.”

Apparently this sort of procedure is common in New York state courts, but the practical effect is to leave out much of the substance of the charges that would be of interest to the public. By contrast, in federal courts it is customary to file a “speaking indictment” that provides a unified narrative containing significantly more specificity. Indeed, the vagueness so far provided makes it impossible to defend against the charges, so there will have to be an elaborate dance of paperwork where the defense demands, for example, that the prosecution explicitly say what they mean by “another crime,” which could plausibly be anything from tax evasion to campaign finance violation. Other than running up legal costs at thousands of dollars per hour billed in six-minute increments, I cannot imagine why this obviously basic and necessary information is not in the initial filings.

The allegation of “intent to commit another crime” is far from a mere technicality: it is my understanding this is a critical element, itself a factual claim subject to proof beyond a reasonable doubt, that under New York state law converts the act of “falsifying business records” from a misdemeanor to a felony, which is what makes possible the current charges where the statute of limitations would have already tolled for such misdemeanor charges. In fact, the conduct charged occurred outside the five-year statute of limitations even if a felony, and presumably the prosecutor relies on stopping the clock while the defendant was out of state — when he was serving four years as president in Washington.

Nor do I understand why this is 34 separate counts: the essence of the allegation is making a series of smaller payments to reimburse “Lawyer A” for one big payment of hush money ($130,000) to “Woman 2” (Stephanie Clifford aka Stormy Daniels), a pornographic movie star, to prevent her from disclosing her claim of an extramarital sexual relationship with Trump, following a similar payment of hush money ($150,000) to “Woman 1” (Karen McDougal), a Playboy model, to prevent her from disclosing her claim of a nine-month extramarital affair with Trump. The counts are not logically segregable in the sense that Trump could be found guilty of some and not others: either the series of payments were all illegal or none were, implying they should be tried as a single count.

If the claim of “another crime” turns out to be campaign finance violation, the prosecution argument would seem to be that “Lawyer A” conveyed money to further Trump’s presidential campaign beyond the legal maximum and without proper disclosure, and the expected defense argument would be that the motive was to prevent personal rather than political embarrassment.

If “another crime” alleged is a federal rather than a state offense this could prove fatal to the entire case, and because Cohen agreed to a plea deal no court ever ruled whether his actions were illegal at all. In his book People vs. Donald Trump, Mark Pomerantz, former outside counsel to the Manhattan DA in the Trump investigation, wrote: “Does the reference to ‘another crime’ include federal crimes, or just state crimes? This was an important legal question in the context of the hush money investigation, because Cohen (with the agreement of Trump and others at the Trump Organization) had used phony documents and invoices to commit and conceal a federal election law violation, but there appeared to be no comparable state crime in play. So, to charge Trump with something other than a misdemeanor, [District Attorney for New York County] would have to argue that the intent to commit or conceal a federal crime had converted the falsification of the records into a felony. No appellate court in New York had ever upheld (or rejected) this interpretation of the law.”

Indeed, it seems likely that none of the people involved in making the payments even contemplated that they may legally constitute campaign contributions, but Trump according to the DA Statement of Facts may have hung himself out to dry on that: “The Defendant directed Lawyer A to delay making a payment to Woman 2 as long as possible. He instructed Lawyer A that if they could delay the payment until after the election, they could avoid paying altogether, because at that point it would not matter if the story became public.”

The problem is that the prosecution filings are so far sorely lacking in sufficient detail for the public even to understand what crimes are alleged, and it will take months for that information to trickle out in the process of give-and-take motion proceedings in court. This plays into the usual Trump strategy of delay, and the next court hearing in the case is scheduled eight months from now on December 4. It could happen that the entire indictment is dismissed by the court without the public ever learning the prosecution theory of the case, which would be bad for the public interest.

NYU Prof. Ruth Ben-Ghiat, perhaps the leading expert on how democracies collapse into authoritarianism (and whose book Strongmen was highly praised by me in a review in 2020), forcefully argues that criminal accountability is an important way of piercing the machismo image cultivated by prospective dictators, noting that it was the possibility of murder charges against Benito Mussolini that caused him to finally dismantle the trappings of democracy that interfered with his fascist project. “The essence of authoritarianism is getting away with crime. That’s why this indictment [of Trump] is so important,” she tweeted on March 30.

Explaining her tweet at greater length, she wrote the following day: “While in the short-term Trump will milk this indictment to raise money and become more popular with his base, based on my research for Strongmen, prosecution is fundamental to showing a nation that the leader is not in fact above the law, not untouchable, not immortal nor a semi-deity. As I recount in my book, prosecution of Italian PM Silvio Berlusconi and Chilean dictator Augusto Pinochet after they left office started the deflation of their personality cults and reputations.… This indictment matters because it asserts the power of the law to punish anyone. It also sends a statement that government officials will not be swayed by authoritarian threats. Right now, our democratic judicial system is working, and our free press can report on it.”

Trump faces additional criminal investigations that range from a federal special prosecutor looking into his culpability for the January 6, 2021, Capitol riot and his possession of classified documents to a state prosecutor in Georgia looking into an election fraud and purported fake elector scheme. Most of these other possible criminal matters are far more serious than falsifying business records to conceal paying off a porn star, a matter where a jury could reasonably see Trump more as the victim of extortion than as the perpetrator of a crime. I would be a lot more comfortable if the first-ever criminal charge against a former president of the United States rested on a far less shaky and uncertain foundation.