A rchive Date
[ 11-06-2024 ]
Category
[ International Relations ]
sub-Categoy
[ U.S ]
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[https://slate.com/news - and - politics/2024/06/will - trump - conviction - be - overturned - appeal.html
I Thought the Trump Conviction Would Never Hold Up. But a Huge Problem Just Got Fixed.
BY JED SHUGERMAN JUNE 10, 2024
“If you come at the king, you best not miss,” Omar Little said in The Wire, paraphrasing Emerson. I have been a vocal critic of the Manhattan district attorney’s office’s decision to bring its criminal case against Donald Trump, but now the time has come for me to give the prosecutors credit where it is due: They did not miss. In addition to winning the first conviction of a former U.S. president, they addressed some of the most puzzling legal problems that had hung over the trial, which could make that conviction less vulnerable on appeal.
For months I have been worried about the New York criminal case against Donald Trump for falsifying business documents in order to cover up a scheme to unlawfully influence the 2016 election via a hush money payment to adult film actress Stormy Daniels. The legal theory was, to me, dubious. Of particular concern was what other critics later dubbed the case’s “time warp” problem: that the prosecution was relying on a set of 34 purely internal documents - Michael Cohen’s pay stubs, invoices, and Trump’s personal ledger entries - as a basis for an “intent to defraud” the “voters” in the 2016 election. As I wrote last year in the New York Times: “If a business record is internal, it is not obvious how a false filing could play a role in defrauding if other entities likely would not rely upon it and be deceived by it. Even if one can argue that the statute should apply to internal records, this is not the ideal time to test a seemingly novel (or even a very rare) application.”
This problem became, in my view, even more significant as the prosecution and the judge emphasized, in the months before trial and through the opening statements, that the case was about defrauding the “voters.” All 34 of these documents were made in 2017. How could voters in 2016 be “defrauded” by documents that did not then even exist?
In a series of posts in March and in my New York Times follow - up essay in April, I shared a suggestion from a friend, Boston College law professor and former prosecutor Jeffrey Cohen: The prosecution should emphasize that the target of the fraud was the government, to conceal violations of federal election laws. “In short: It’s not the crime; it’s the cover - up.”
However, in the early stages of the trial, the judge and prosecution had framed the case as Trump defrauding the “voters,” a politically compelling story but so broad as to be confusing, both legally and factually. This is where things get complicated.
In order to upgrade the misdemeanor false filings to a felony, the prosecution had to prove Trump intended to conceal another crime (thus, three layers - underlying crime, intent to conceal that underlying crime, false document filings). In the initial argument of the case, as described in the indictment and follow - up motions, the prosecution pointed to four possibilities for what this underlying crime was: a Federal Election Campaign Act crime, tax fraud, other false documents under the New York false business documents statute (such as the document Cohen filed to set up his shell company to pay off Daniels), or maybe a vague New York state statute against conspiracies to “promote” a candidate by “unlawful means.” Lawfare’s Quinta Jurecic, an indispensable explainer of the case over the past year, asked at the time about the “tangled” legal theory behind the case, “Clear as mud?” (To see just how complex this legal rationale was, check out my effort to diagram it.)
But in a surprise move at the end of the trial, the prosecutors restructured the case. The jury instructions made the New York state election law the only underlying concealed crime. The statute in question, New York Election Law 17 - 152, states: “Any two or more persons who 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.” The other crimes that had previously been possible underlying crimes for the falsifying documents charges - the alleged Federal Election Campaign Act violations, secondary false document filings, and tax crimes - were now the possible “unlawful means” of “promoting a candidate.” The previous approach had three steps. The end of the trial focused on a fourth step, proving “unlawful means.”
This strategy worked with the jury, but it also exacerbated the timing problem I brought up back in April. In the first approach, the prosecution could treat all of the 2017 falsified documents as part of a “cover - up,” which seemed to fit common sense. But the final restructuring meant that they were treating some obscure 2017 documents as a “means” of winning an election, seemingly after the fact.
The new question was even more puzzling: How could tax and business documents that were not created until 2017 be “means” of “promoting” a candidate in a 2016 election? If this was an “election interference” case, how could 2017 documents “influence” voters in 2016? In closing, the defense raised the time - warp problem. “The charges relate to documents in 2017,” Todd Blanche told jurors. “And the government wants you to believe that President Trump did these things with his records to conceal efforts to promote his successful candidacy in 2016, the year before.” Some have argued that there is no time warp if the conspiracy that began in 2016 included even then a plan to eventually cover up the unlawful means, so the 2017 cover - up was part of the same “means.” The problem is that the word “means” implies a cause/effect relationship (think of “means/ends” relationships that come up all the time in law). Something cannot be a “means” to an “ends” if the ends already happened a year ago.
More plausibly, others have argued that it is not a time - warp problem if the cover - up helped Trump run for reelection in 2020. To be clear, I think reasonable people can disagree about whether such an argument is factually persuasive as to intent. However, the question on appeal is not whether appellate courts agree with such a factual inference, but whether after viewing the evidence in a light most favorable to the prosecution, could a rational juror have found this element of the crime beyond a reasonable doubt?
In other words, it does not matter whether I am persuaded that the 2017 documents were an unlawful means of running for reelection. The question is: Did the prosecutors offer a sufficient factual basis for a reasonable person to come to that conclusion?
After reviewing the trial transcript and briefings, I think the answer is yes: The prosecutors addressed the time - warp problem with Michael Cohen’s testimony and a closing argument that was much more effective than their opening argument. Cohen testified not only about the 2016 election conspiracy, but also the timing in 2017 of Trump’s early announcement that he was running for reelection in 2020. Cohen testified that his title at that time was “personal attorney to the president.” This timing overlapped with the creation of the false tax records and other documents in 2017.
During lengthy closing arguments, prosecutors similarly took this head - on. Addressing the original time - warp problem first, prosecutor Joshua Steinglass focused on how the 2017 documents defrauded regulators:
Whether you’re a private enterprise or a public enterprise, you have an obligation to keep proper books and business records. This isn’t an obligation to your owners or investors or shareholders. It’s an obligation to the State of New York. Among other reasons, the information contained in these false records are reviewed … your business’ books are also important for Government Regulators and Election Regulators, and they’re important for other companies or vendors with whom you do business.
Then Steinglass returned to the second timing solution, the means of running for reelection: “The Defendant used his own business records as the vehicle to disguise the reimbursement because he didn’t want anyone finding out about the conspiracy to corrupt the election.” He continued:
[The Defendant] had every reason to continue to conceal his election fraud. … Cohen told you … as of 2017… the Defendant had already announced an intention to run for President again.
Did Trump intend for these 2017 documents to be a “means” to win in the 2020 election? The question is whether reasonable people could have come to that conclusion. The prosecutors did their job: They persuaded the entire jury; they successfully focused the jury and the public on this case as an unlawful election conspiracy; and they established a factual basis for an appellate court to find sufficient to reach this conclusion, as attenuated as it may seem to some skeptics.
I still have concerns about other legal questions on appeal. However, on the most glaring problems that seemed to defy common sense and the time - space continuum, I don’t think they missed.
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