You’d think the Manhattan district attorney had never filed cases of this type or filed charges that exceeded the minimum standards for specificity in a criminal complaint. It turns out the critics were premature — and largely off base. (Norman Olch, former chair of the Committee on Courts of Appellate Jurisdiction of the New York State Bar Association, wrote after the indictment: “New York is no stranger to the legal device of enhancing a misdemeanor to a felony because at the time the defendant committed the misdemeanor he was intending to commit yet another crime.”)
As Just Security explained at the time, “For Trump to be prosecuted for felony violation of falsifying business records, the statute requires the DA to prove not only that Trump is guilty of falsifying business records (a misdemeanor), but that he did so with the intent to commit ‘another crime,’ or aiding or concealing the commission of ‘another crime.’” Well, it has never been a great mystery what those other crimes might be despite critics’ caterwauling that Bragg was engaged in some legal sleight of hand.
Trump’s counsel last week filed what is called a bill of particulars — a demand for more clarity on the charges he faces. This is standard practice in New York State Court. Though rejecting the claim that Trump was entitled to more specificity at this stage (like all defendants, he will get full discovery, access to all the evidence the prosecutor intends to introduce), Bragg spelled out in writing a whole list of criminal statutes that elevate the misdemeanor falsification charges including: “violations of New York Election Law § 17-152; New York Tax Law §§ 1801(a)(3) and 1802; New York Penal Law §§ 175.05 and 175.10; or violations of the Federal Election Campaign Act, 52 U.S.C.§ 30101 et. seq.”
“Giving particulars as to his legal theories was wise: It provided Trump due process and made it easier for Bragg to avoid delay as a result of needless litigation,” Andrew Weissmann, former lead prosecutor in the Robert S. Mueller III investigation, told me.
The legal theories for boosting the counts to felonies are hardly novel. Bragg had specified several of these statutes in his remarks after the arraignment. And even before the indictment, many experienced prosecutors had explained that any of these might provide the basis for elevating misdemeanor charges to felonies.
Former Los Angeles prosecutor Joshua Ritter told Newsweek: “The election and tax laws that Bragg’s office has cited as underlying crimes are fairly straightforward. The election laws simply involve using unlawful means to gain an advantage in a political campaign and failing to disclose how funds are used in a campaign. The tax statutes just relate to submitting false or fraudulent information in a tax return.”
Because New York law does not limit the crimes that might elevate a business records claim to state law claims, it was easily anticipated that Bragg would include both state and federal finance laws as crimes that converted misdemeanor charges into felonies: Exceeding campaign limits, using straw-man conveyances and funding campaigns from a corporation are all implicated in Trump’s alleged conduct.
Likewise, New York Election Law § 17-152 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 and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor.” Though Bragg didn’t include a conspiracy count in the indictment, he nevertheless can use this statute as the additional crime to boost the charges to felonies.
Including the falsifying-business-records statute itself (§§ 175.05 and 175.10) as the “second crime” makes sense: Each alleged disguised payment served to cover up a previous alleged falsified business record. Every check Trump signed (save the first) allegedly was made in furtherance of an alleged scheme to disguise the preceding payments.
And New York tax law also might be implicated in that payments to Michael Cohen allegedly were falsely characterized as a retainer/payment for services when he was allegedly merely a conduit for payments to Daniels.
Moreover, the law does not require Trump to actually have committed the second crime — only that he intended to. Former federal prosecutor Harry Litman explained:
The language that elevates business record falsification to a felony only requires “an intent to commit another crime or to aid or conceal the commission thereof.”
That purposely encompasses what lawyers call “inchoate” crimes. The law would plainly be satisfied by the inclusion of money intended to commit or conceal another crime — namely, a false tax filing — whether or not that crime occurred.
Ryan Goodman, a New York University law professor and Just Security’s co-founder, told me, “It goes to show how much some of the early criticisms of the DA following the indictment were overwrought and unfounded.” He continued, “As a defendant, Trump always had the right to ask for a bill of particulars, and Bragg responded expeditiously in outlining the specific crimes for Trump to prepare a defense.”
Critics’ harsh reactions now seem misguided, at the very least. It’s hard to square the savage criticism of Bragg with the principle that Trump should receive no better or worse treatment than any other criminal defendant. Refusing to indict Trump for alleged crimes that would have been brought (and have been brought) against someone other than a former president would have violated the central principle that state and federal prosecutors investigating Trump seek to uphold: He should be treated no differently from any other criminal defendant simply because he once was president.
As a matter of legal analysis and journalistic candor, it behooves Bragg’s critics to concede that the district attorney actually has a solid factual and legal basis for bringing charges against Trump.