The Weekly Sift

If you were hoping for more detail about the DA’s case, you were disappointed. But that doesn’t imply the case against Trump is weak. Now the wheels of justice will grind slowly.

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For weeks I’ve been trying not to waste my time (or yours) on speculation, but at last there’s finally something real to talk about.

Donald Trump, a private citizen who no longer has any connection with the presidency, showed up for his arraignment in New York on Tuesday, and his indictment was unsealed. The indictment itself isn’t that interesting: It’s 34 counts of falsifying business records, and each count just lists a record that the DA alleges is false. Like this:

The defendant, in the County of New York and elsewhere, on or about February 14, 2017, 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, to wit, an entry in the Detail General Ledger for the Donald J. Trump Revocable Trust, bearing voucher number 842457, and kept and maintained by the Trump Organization

The DA also filed a statement of facts, which lays out some of the narrative he’s going to try to prove in court. The high-level description goes like this:

From August 2015 to December 2017, the Defendant orchestrated a scheme with others to influence the 2016 presidential election by identifying and purchasing negative information about him to suppress its publication and benefit the Defendant’s electoral prospects. In order to execute the unlawful scheme, the participants violated election laws and made and caused false entries in the business records of various entities in New York. The participants also took steps that mischaracterized, for tax purposes, the true nature of the payments made in furtherance of the scheme.

That expands into 13 pages of details, with reference to testimony and documents that presumably the prosecution is ready to present in court.

But the DA didn’t go into detail about how the legal logic fits together: What exactly is the “other crime” the indictment keeps referring to? Maybe it’s the violation of federal election law Michael Cohen went to jail for. Maybe it’s some related state election crime. Maybe it’s filing a false tax return. DA Bragg doesn’t need to specify at this point, and he doesn’t.

But the “other crime” is a load-bearing component of the case: Without it, the falsified records are just misdemeanors rather than felonies, and it’s possible that the statute of limitations has already run out on them. (One detail various TV commentators have pointed out: The other crime doesn’t have to have been committed; it only had to be intended. So if the other crime is some kind of tax fraud, it doesn’t matter whether the fraudulent tax forms were actually filed.)

Several commentators interpreted this lack of detail as a flaw in the case, and expressed disappointment at the “weak” indictment. I (and several writers more qualified than I am) interpreted it differently: Bragg isn’t trying to win in public opinion, he’s trying to win in court. So (in contrast to the “speaking indictments” we often got from the Mueller investigation), he’ll reveal his strategy to the defense as he has to, and not before. Undoubtedly, the defense will file a motion challenging the indictment’s legal logic, and then Bragg will have to make an argument. We’ll see then how well his structure holds.

A few other things are clear from the indictment and supporting statement: Trump’s claim that he “did absolutely nothing wrong” is just gaslighting. One claim his lawyers have made in the media is that the $130K payment to Stormy Daniels was personal and not campaign related. But then we run into this:

The Defendant directed Lawyer A [Cohen] to delay making a payment to Woman 2 [Daniels] 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. As reflected in emails and text messages between and among Lawyer A, Lawyer B, and the AMI Editor-in-Chief [David Pecker], Lawyer A attempted to delay making payment as long as possible.

If Bragg really has those emails and text messages, the “personal” interpretation goes away: Melania would have been just as upset the day after the election, so the payments are about fooling the voters, not protecting Trump’s marriage.

Also, the steps Trump, Cohen, and Pecker took to hide their actions make it obvious they knew they were up to no good. When Trump reimburses Cohen for the payoffs he’s made, he doubles the amount so that Cohen can declare the payment as income rather than a reimbursement, which might leave a trail back to Trump. After paying taxes on the false “income”, Cohen would have his original payment back. That bit of subterfuge was worth nearly $200K to Trump, so he must have believed he had something to hide.

Another red herring is the idea that the case will come down to whether the jury believes Cohen or Trump. (Since both are habitual liars, such a case couldn’t be “beyond reasonable doubt”.) Cohen (backed up by Pecker) is likely to be the narrator for the evidence presented in documents; his testimony won’t be the substance of the evidence. The jury will have to decide between Trump and the documents, not between Trump and Cohen.

In summary, the case will fall into two parts: The judge will decide the law, and then the jury will decide the facts. The two parts will be practically separate. The judge will decide if the factual claims made by the prosecution would be sufficient to convict Trump of the offenses he’s charged with. If not, the case will be thrown out before it ever reaches the jury. If it does reach the jury, the judge’s instructions will probably tie the facts to the verdict: “If you believe beyond a reasonable doubt that X happened, then you must convict. But if you have reasonable doubt that X is true, then you must acquit.” The jury may not even know about the legal issues the judge has decided.

If DA Bragg has the documents he alludes to in the indictment, then the facts are clear. So if the case reaches the jury, Trump should be convicted.

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Criminal justice is a slow process. The prosecution must turn over its evidence to the defense, which then has a chance to review it and possibly ask the judge not to allow some of it. Defense motions about the case (for example, a motion to dismiss the charges for lack of the “other crime”) have to be filed by August 8. The prosecution has until September 19 to respond to those motions, and the judge will announce his decisions on December 4, the next official court date. At that point, the judge would lay out a schedule for the trial, assuming the case is going to trial.

All those dates might be delayed if the motions get appealed up the Supreme Court, as they might.

This means that the trial could be happening during the primary season, with a verdict possible around the time of the conventions. Politically, the process would be smoother if the trial could wrap up before the primaries, so voters could process the verdict rather than media speculation about Trump’s guilt or innocence. But (despite what Trump keeps saying) this isn’t about politics. It’s about the rule of law. So it will happen on its own schedule.

Meanwhile, Trump will try to spin this to his benefit politically, but I have my doubts about how well that’s going to work. This week’s SNL Trump parody was way too on-the-nose.