(C) Daily Kos This story was originally published by Daily Kos and is unaltered. . . . . . . . . . . A Deeper Dive Into The Trump Felony Amplification [1] ['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.', 'Backgroundurl Avatar_Large', 'Nickname', 'Joined', 'Created_At', 'Story Count', 'N_Stories', 'Comment Count', 'N_Comments', 'Popular Tags'] Date: 2023-04-05 All the charges in Trump’s indictment are basically the same. They are all a series of charges for false business statements (on checks, ledgers and invoices). The falsity is in treating payments to former Trump lawyer and “fixer” Michael Cohen, compensating him for paying Stormy Daniels, as payments under a legal retainer agreement. There was no retainer agreement. The whole scheme was to pay off Stormy Daniels and launder the payment to her away from Trump. This charge alone is normally a misdemeanor. The media attention focuses an additional element that bumps it up to a felony when the falsification is done with the intent of concealing another crime. This additional element to the falsification charge does not require that the other crime be charged, or even that it was committed, only that the intent of the falsification was to conceal it. Bragg argues what I just said, that the other crime does not have to have been committed or charged. That matters since he didn’t charge Trump for whatever that other crime is. However, as a practical, matter that already makes it a reach to convince a jury that the intent was to cover up a crime which the prosecution lacked the confidence to charge. While Bragg’s position might be technically, legally true, it is a tough distinction for a jury to buy into. Unless of course Bragg’s failure to charge can be explained by a jurisdictional bar that precluded Bragg from charging it (see below). Thus the question becomes what crime did Trump intend to conceal with the falsification? Bragg muddies the water by not directly saying. Rather between the indictment, Statement of Facts, and his presser, Bragg suggests three different possible crimes the false business records may have intended to conceal. I’ll discuss them in order of strength. Violation of Federal Election Law: Bragg alleges the scheme violated federal election law. Trump former lawyer, Michael Cohen, was convicted and went to jail for that scheme. However, whether this New York statute can be used to enforce a federal election law is untested. That doesn’t mean it is wrong. The statute just says another crime and doesn’t limit it to New York crimes. From a legal perspective it shouldn’t matter as the point of the law is to enhance punishment for the additional corruption associated with concealing another crime. Apparently Bragg won another case (as reported on CNN last night) where the purpose was to conceal a foreign crime, which is even further removed. I think Bragg prefers the federal election law violation answer because it allows him to explain to the jury why he didn’t charge Trump for the crime being concealed. Bragg couldn’t, because he can’t charge a federal crime. Violation of State Election Law: NY law makes it an offense to engage in a conspiracy to interfere with elections. TV pundits argue this is a reach because it was not a NY election, but rather a Federal election. Well okay, but it was also a state election. The essence of our federalist, electoral college system is that each state separately and distinctly decides how its electors for the electoral college are chosen. Under the Constitution a state does not even have to decide its electors via an election. NY has chosen to do so by election. It’s a state election to choose NY’s slate of state electors. It’s not even a vote for federal office, the way a vote for New York’s two members of the Senate are. It’s not a vote for President, it’s a vote for state electors. Violation of State Tax Law: The Statement of Facts suggests, and Bragg in passing at his presser suggests, the business records falsification resulted in the filing of false tax documents. However, there is a huge problem with that. The falsification actually increased tax payments. At least as laid out in the Statement of Facts the scheme had to increase the payments to Cohen to make him whole for having to pay taxes on reimbursement to him for his paying off Stormy Daniels. Thing is is if it were actual reimbursement Cohen would not owe additional taxes for the payments because it was revenue neutral for him. So they had to make it look like regular income to Cohen’s, make it look like a payment for a retainer (which it was not). That might all be technically fraudulent, but the nature of the fraud actually meant Cohen had more taxable income and paid more taxes. That’s the tax “fraud” allegation as laid out in Statement of Facts. The allegation is not that Trump Org declared the payments to Cohen as a business expense.There seems to be agreement that Trump Org did not claim the payments to Cohen as a tax deduction. Which certainly seems to support the theory that they knew those payments were not legit. Still, the problem remains, how do you convince a jury that the “tax fraud” was a scheme that resulted in the payment of more taxes? It should be noted that even if Bragg loses this enhancement that he still has 34 solid misdemeanor counts. That’s a point seemingly lost in the TV noise too. Should a former American President being convicted on 34 misdemeanor counts of fraud count for something. Rational Americans should think so, but MAGA world likely will not. They will liken it to a traffic ticket, which is nonsense. What I find frustrating is that Bragg had two major options for cases to bring. The first being the general, widespread business and tax fraud charges of the nature reflected in New York Attorney General Letitia James civil case against Trump. Reading that case, is sure sounds like a very solid criminal case. Bragg indicted and convicted both the Trump Organization itself and its CFO for such fraud, but inexplicably left Trump himself out of it. Instead Bragg brings a case about concealing hush money payments to a porn star. In the court of public opinion that smells too much like the case against Bill Clinton for lying about a BJ. The manner he presented the case also fails to clearly layout to the American people what Trump did to elevate the charge to a felony. I would rather the first indictment of Trump not rely on an untested legal theory. I really wish Bragg would have gone with the bigger multiple major felonies case. Don’t know why he didn’t. Seasoned prosecutors resigned over his refusal to bring it. Instead he chooses what is at its core is a misdemeanor case that he has to reach to push into minor felony case. What’s more, that reach has a very real chance of not succeeding. Alternatively, I wish Bragg had waited for the much stronger, and serious cases, to be advanced from Fani Willis out of Fulton County Georgia or Special Prosecutor Jack Smith’s investigation. [END] --- [1] Url: https://www.dailykos.com/story/2023/4/5/2162222/-A-Deeper-Dive-Into-The-Trump-Felony-Amplification Published and (C) by Daily Kos Content appears here under this condition or license: Site content may be used for any purpose without permission unless otherwise specified. via Magical.Fish Gopher News Feeds: gopher://magical.fish/1/feeds/news/dailykos/