UNSEALED AND DELIVERED — Five long days after the indictment of former President Donald Trump — and five long years after news of Trump’s hush money payment to Stormy Daniels broke — we finally got a look at the charges. This afternoon, Trump appeared before New York judge Juan Merchan for his arraignment — a first step in the process of the first ever criminal prosecution of a former U.S. president, though a step that, as a legal matter, is largely a formality. At the hearing, Merchan unsealed the indictment against Trump, who pled not guilty to all counts. The Charges The indictment contains 34 charges against Trump for falsifying business records in the first degree. The relevant statute makes it a crime when someone makes or causes a false entry in the records of a business with the intent to defraud and the defendant also intends to commit, aid, or conceal another crime. This is a so-called “Class E” felony, the lowest level under New York law. The charge entails a maximum term of imprisonment of four years upon conviction. There is no mandatory minimum term of imprisonment. The Key Allegations A Statement of Facts from the DA’s office alleges that Trump participated in falsifying business records of the Trump Organization in order to conceal a $130,000 payment made to adult film star Stormy Daniels in the final weeks of the 2016 election to dissuade her from going public with an alleged affair with Trump. Trump’s former lawyer Michael Cohen allegedly made the payment to Daniels through a shell corporation and was later reimbursed by the Trump Organization over the course of 2017. Cohen himself pled guilty in 2018 to federal campaign finance offenses concerning the underlying facts. The DA’s Theory of the Case The accompanying indictment lays out 34 separate alleged instances of false records within the Trump Organization from February through December 2017, including invoices from Cohen, entries in corporate general ledgers, checks and check stubs. Prosecutors allege that the records were false because they indicated that Cohen was being reimbursed for legal expenses under a retainer — even though, in paying off Daniels, he had rendered no actual legal services. They further allege that the payment to Daniels “violated election laws” and that Trump and others mischaracterized “the true nature of the payments” for “tax purposes.” Trump’s Possible Defenses Trump’s lawyers in recent days have indicated they will try to get the charges dismissed before a trial. That is generally a difficult thing to accomplish for a criminal defendant, unless the legal issues are clear enough for a judge to dismiss the case, but the unusual nature of the charges could make this more fertile ground for pretrial litigation than the average criminal case. Trump may claim, for instance, that he is the victim of selective prosecution. That argument is likely to fail unless Trump can somehow manage to identify similarly situated people who committed similar conduct and who have not been criminally charged by the DA’s office — a prospect that appears unlikely at the moment. Trump might also claim that the charges against him are too old — that is, that they are barred by the relevant statute of limitations under New York law. In response, prosecutors are likely to rely on a provision of state law that pauses the limitations period when “the defendant was continuously outside this state,” which could include both Trump’s time in the White House and his move to Florida. They could also rely separately on an executive order from then-Governor Andrew Cuomo that paused the statutes of limitations in the state for most of 2020. Trump also appears poised to challenge each one of the elements of the charges against him. In recent weeks, his lawyers have argued that there was no “false entry” in the company’s records because the reimbursements to Cohen were in fact legal fees because they were made in connection with a legal settlement. They have argued that Trump had no “intent to defraud” because he relied on Cohen and other advisers to structure the transaction. And they have argued that there was no underlying crime being facilitated or concealed because there was nothing inherently illegal about the settlement with Daniels, including any violation of either state or federal election law. It is far too soon to predict whether these arguments will be successful. Prosecutors are certain to mount aggressive responses to any pretrial motions filed by Trump. They’ll likely urge the judge, in the first instance, to let the jury and the court hear all of the evidence and reach a conclusion before making any determinations on the strength or sufficiency of the evidence. If convicted, Trump could then litigate these issues on appeal with a full evidentiary record. But, of course, that would entail him enduring the indignity and spectacle of both a trial and a guilty verdict. A historic prosecution — now the most closely watched criminal case in the country — is officially underway. Welcome to POLITICO Nightly. Reach out with news, tips and ideas at nightly@politico.com. Or contact tonight’s author at ankush.khardori@gmail.com.
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