by Pete Fasciano, Executive Director 04/09/2023
This is my Excel summary of the 34 charges described in NY v Donald J. Trump. IMHO – NY District Attorney Alvin Bragg has a big hill to climb.
Here’s how to read the breakdown. The first column cites a count number where a set of related events occurs as noted in subsequent counts.
There is a repeating structure:
Count 1, Column 2 – Date when Michael Cohen submitted an invoice for services.
Not stated: Nature of services and amounts invoiced. Were services falsified? By Cohen? By Trump?
Count 2, Column 3 – Date Trump or an assign enters the invoice into a check ledger.
Were services noted consistently between the invoice and ledger?
Count 3, Column 4 – A voucher is generated to approve payment.
In what business expense account does the voucher place the invoice?
Count 4, Column 5 – Check issued and signed by Trump.
What entry appears on any of the issued checks as a memo?
Some elements for further investigation:
There were two vouchers issued for Cohen’s first cited invoice. Why? Are there listed services that were broken out for some reason?
Or – was the second voucher a reissue – as a replacement for the first?
Counts 1 to 7 were paid from a Donald Trump Revocable Trust account. Counts 8 to 34 were paid via the organization’s General Ledger account. Why the change? Were hush payments scrubbed in counts 1 to 7?
Counts 1 to 7 have check numbers that differ from the general business account. Counts 8 to 34 list related check numbers in a reasonable progression.
Are the first two issued checks where all of the hush money sums exist?
Is the matter of hush money payments and their alleged mischaracterization contained entirely within Counts 1 through 7?
If so, how the jury chooses to recognize the Trump Revocable Trust might become a pivotal point in determining guilt or innocence. If prosecutors can link the Trust to the ordinary business affairs of the Trump organization, then the claim that:
THE GRAND JURY OF THE COUNTY OF NEW YORK, by this indictment, accuses the defendant of the crime of FALSIFYING BUSINESS RECORDS IN THE FIRST DEGREE, in violation of Penal Law §175.10, committed as follows: 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… (Details of each specific count follow).
Then the prosecution’s case has merit. But, is it a bridge too far?
If the jurors consider the Trust account to be private funds and set apart from the Trump Organization, and regard it as a personal checking account and not a part of any business records, then the prosecutor’s case might be severely flawed.
What we don’t know:
The nature of services and related amounts listed on Cohen’s invoices. Are there dated ‘phone-con’ events listed as billable time?
These would prompt questions of nature and substance in such conversations. Who opted to frame the nature of hush money payments? Cohen or Trump.
No Cohen invoices were listed prior to the Indictments. However, earlier invoices, voucher, ledger entries and checks may be introduced as evidence to establish their prior working relationship, and any services and payment pattern changes. Sums paid via each check, and any noted check memos might also be telling. Then there are Trump’s ‘agents and assigns’ – bookkeeping staffers. What do they know?
Cohen’s testimony is mission critical. Also, Pecker’s testimony regarding the newspaper’s (negative story) catch-and-kill strategy will also be significant in establishing hush money, its movements and timings, and any discussion(s) directly noting the election and bad publicity protections afforded to candidate Trump.
There is no direct reference in the indictment regarding connectivity to suppress negative information about candidate Trump during a federal election. This link will have to be made unambiguously clear and absolute in the court proceedings.
In Sum:
This case is detailed and complex. This case is fraught with boring accounting details that will tax the best juror’s attention span. Much is also omitted from the indictment. That said, the state would not try the case in the indictment itself. The charges are kept basic and deemed provable in court.
The wild card is if Trump takes the stand and testifies under oath. That is a risk his attorneys will likely seek to avoid. Trump’s follow-on Mar-a-Lago speech was telling. He opened immediately with his usual machine gun litany of grievances against the legal system, the Bidens, etc. Within a minute or two, as it became clear that Trump wasn’t going to address the state’s indictments against him many news organizations abandoned their coverage.
Finally, if some secret Trump supporters end up in the jury box there is some potential for a mistrial or a hung jury. Jury selection will be mission critical.
In another week this saga will fade into the noise of the day. News outlets will give it a nod as motions are filed from time to time – until the court date arrives.
I say all of the foregoing as a mere citizen. It’s all IMHO. I have no special legal expertise, but I have worked in and with enough news departments in my long career to wonder why no one else is carefully analyzing the prosecutor’s charges. Rather than simply castigating a notorious defendant, I’ve opted to consider the case itself, it has merits and limits. What has Alvin Bragg learned that previous prosecuting attorneys didn’t know?
Note that the quantity of counts does not equate to the quality and veracity of the counts. Either way, this case could be all over and done after Count 7.
There is much to be revealed in witness testimony that we just can’t know. How it all plays in the courtroom will determine if The Don is still Teflon.
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