Home Featured The new revelations — and key questions — in the Trump indictment
The new revelations — and key questions — in the Trump indictment

The new revelations — and key questions — in the Trump indictment

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All 34 felony charges against Trump are identical, with each carrying the possibility of up to four years in prison, although judges rarely sentence defendants to jail for such offenses.

The indictment is a bare-bones document that simply recites the alleged offenses in boiler-plate language. However, Manhattan District Attorney Alvin Bragg’s office also released a 14-page statement of facts laying out the case in greater detail.

Here are details from the groundbreaking court filings that could make or break the case of People v. Donald J. Trump.

The aggravating factor

Going into Tuesday’s historic and much-previewed arraignment, a key mystery was exactly how Bragg planned to bring the charges as felonies. The charge at the heart of the case — falsifying business records — can amount to only a misdemeanor, but it becomes a felony if the defendant falsified the records to obscure a separate crime.

The most obvious candidate for that aggravating element is the admission from Trump’s former lawyer, Michael Cohen, that he arranged a $130,000 payment to porn star Stormy Daniels in consultation with Trump and to aid Trump’s 2016 presidential campaign.

“The defendant Donald J. Trump repeatedly and fraudulently falsified New York business records to conceal criminal conduct that hid damaging information from the voting public during the 2016 presidential election,” the statement of facts says.

“The participants [in the scheme] violated election laws,” the statement continues, though it does not explicitly cite which ones. The statement also mentions Cohen’s guilty plea in 2018 to two federal campaign finance crimes. And in a press release, Bragg said Trump and others sought to conceal “attempts to violate state and federal election laws.”

The references to federal election violations are virtually certain to be the focus of pre-trial motions from Trump’s attorneys, who have contended publicly that this state-law offense cannot be piggybacked on a federal-law crime.

If defense attorneys prevail on such motions, it would not necessarily wipe out the criminal case against Trump. Instead, the case could remain as 34 misdemeanor charges. That would amount to a legal, public relations and political victory for Trump.

Such a result would further diminish the chances of Trump being jailed if found guilty. The maximum sentence on a second-degree falsifying business records charge is up to one year in prison on each count. A downgrading of the case to a misdemeanor might also aid Trump’s efforts to delay a trial.

A strange tax claim

The charges against Trump do not include any tax fraud offenses that some legal experts said they hoped to see to buttress the seriousness of the case. However, the statement of facts Bragg filed along with the indictment makes a surprising claim: that Trump and his associates engaged in deception by paying New York state more in taxes than it was owed.

“The participants also took steps that mischaracterized, for tax purposes, the true nature of the payments made in furtherance of the scheme,” the statement says.

It alleges that Trump paid an increased reimbursement to Cohen — a procedure known as “grossing up” the payment — in order to compensate him for the taxes he would owe by booking the money as legal fees.

These alleged contortions resulted in Cohen paying about $180,000 in state and federal income taxes, when he may have not owed anything if Trump had simply reimbursed him for the $130,000 and the payment had been properly recorded. That’s because the reimbursement of money Cohen already paid to Daniels wouldn’t have represented income for Cohen.

But recording the money, falsely, as legal fees subjected Cohen to significant income-tax liability — meaning that any trickery the men engaged in may actually have benefitted state and federal coffers. That may be why Bragg’s team doesn’t deem the practice “fraud,” and why no tax fraud or evasion charge was included in the indictment.

Is every record kept at a business a business record?

For Trump to be convicted of falsifying business records, the records at issue have to be, well, business records.

The New York law at issue requires that the falsification involve the records of “an enterprise,” and each count of the indictment claims that Trump falsified records “kept and maintained by the Trump Organization.”

The facts are more complicated. It’s true that the checks sent to Cohen, which labeled the payments as legal expenses, were issued by employees working for Trump’s business empire. But they were not charged to Trump’s businesses. Instead, the payments were made from one of Trump’s personal accounts or from a Trump family trust.

The key question, and one that is sure to feature in efforts by Trump’s lawyers to derail the case, is whether documents that happened to pass through the Trump Organization or handled by Trump Organization personnel are automatically classified as business records, even if the source of the funds was Trump’s personal accounts.

Bragg’s statement of facts declares that “each check was processed by the Trump Organization” and gives further details about how Cohen arranged payment from bookkeepers at the Trump companies. Prosecutors say at least two of the payments were approved by longtime Trump Organization chief financial officer Allen Weisselberg, who pleaded guilty to unrelated tax evasion charges in 2021.

“The TO CFO approved the payment, and, in turn, the TO Controller sent the invoice to the Trump Organization Accounts Payable Supervisor (the “TO Accounts Payable Supervisor”) with the following instructions: ‘Post to legal expenses. Put ‘retainer for the months of January and February 2017’ in the description,’” the prosecutors’ filing says.

Legal experts said they expect Trump’s lawyers to argue to the judge and, if necessary, a jury that wholly personal expenses that are simply handled by an accountant or other clerical personnel don’t become the “records of an enterprise” just by virtue of that process.

Kyle Cheney contributed to this report.

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