On Felony Enhancement and Other Legal Niceties

Donald J. Trump has been criminally indicted and arraigned in the state of New York on 34 felony counts of falsifying business records.

Falsifying business records in New York is a misdemeanor which becomes a felony if the falsification was done in order to cover up another crime.

Alvin Bragg, the Manhattan District Attorney bringing the case against Trump, has stated that the enhancement of the misdemeanor counts is predicated on four different classes of crimes that Trump committed in addition to the falsification of business records. They are:

1. state tax crimes
2. state campaign finance crimes.
3. federal tax crimes
4. federal campaign finance crimes

DA Bragg has, thus far, not revealed any details about the enhancing crimes (he is not required to do so at this stage in the process). Nevertheless, some pundits and Trump apologists are predicting that the felony enhancements will not stand up in court. One of their arguments rests on the idea that state campaign finance law has no jurisdiction in an election for a federal office.

Before we go any further, we should take a look at New York election laws. (For now, we'll leave the other enhancing crimes for a future discussion.)

New York state election law makes it a crime to conspire to promote a candidacy by unlawful means.

In Trump's case, the "unlawful means" are undisclosed contributions to Trump’s presidential campaign, which came in the form of suppression of unflattering stories about the candidate. Trump's candidacy benefited from not having negative stories about him released before the election.

Here is the text of the relevant state law (from the New York State Board of Elections website):

"The treasurer of every political committee, as well as every candidate who receives or expends any money or any valuable thing or incurs any liability to pay money or its equivalent, shall keep and retain detailed, bound accounts of all receipts, transfers, loans, liabilities, contributions and expenditures, made by the committee or any of its officers, members, or agents acting under its authority or in its behalf, or the candidate, as applicable. (EL 14-118.)"

"All expenditures over $10 must be vouched for by a receipted bill stating the particulars of the expense. (EL 14-122(2)."

Apparently, in the Trump Campaign's filings with the New York State Board of Electors, the "particulars" regarding the payments Trump made to keep Porn star Stormy Daniels and Playboy model Karen McDougal quiet about the sexual encounters they had with Trump while his new wife Melania was pregnant with their son Barron are conspicuously absent.

Note that the New York laws make no distinction between elections for state versus federal offices. As long as the candidate campaigned in the state of New York, and citizens of New York voted in the election, the laws apply.

Some pundits and people opposed to holding Trump accountable look for other supposed weaknesses in the case. For instance, some claim that DA Bragg is persecuting Trump with a picayune charge that is rarely if ever prosecuted. In fact, the opposite is true. The Manhattan District Attorney has prosecuted hundreds of cases of falsifying business records. As DA Bragg put it, this type of case is the "bread and butter" of his office.

Another false hope of Trump supporters is that the 5-year statute of limitations has run out on the case. They overlook the fact that when the individual leaves the state, as Trump did while president, the time countdown pauses. Consequently, during all the years that Trump spent living in Washington DC and Florida, the statute of limitations clock was stopped. The state still has ample time to bring its case.

Finally, some Trump supporters argue that the efforts to "catch and kill" the Daniels and McDougal stories were all about trying to spare Milania aggravation and embarrassment, and had nothing to do with the 2020 election. However, it appears that there is eyewitness testimony that Trump hoped to delay the hush money payment to Stormy Daniels until after the election; by then the story wouldn't matter; he could stiff Daniels, and save himself $130,000. If true, this would tend to refute the notion that Trump was at all concerned about how the scandal might affect Milania.

In sum, the New York case against Donald Trump appears to have legs. Maybe that's what has the Orange Foolius worried enough to call for "death and destruction" if he is prosecuted.

An innocent man would welcome the opportunity to clear his name. Instead, Trump's lawyers are focussed on delay, delay, delay. Nevertheless, the train has left the station. Listen! You can hear the whistle blow!