#TrumpTrial

We are lawyers at The McShane Firm. In fact, we are criminal defense lawyers. We are not authorized to practice in New York state, but we can offer analysis and case law. Here is my (Justin James McShane) no BS, no spin analysis on the trial itself and its surrounding LEGAL issues. I am going to try to steer clear of the politics and the issue of “is this fair?” or “he’s being singled out” as there are a lot of other places on the internet who offer that type of analysis.

History

For the first time in history, a former U.S. President and current Presidential candidate is facing a criminal trial.  

 

What exactly is he charged with?

Thirty-four felony counts of falsifying business records in New York are the charges lodged against him. He is afforded the presumption of innocence like all criminally accused are. Allegations are just that, allegations. He has the right to demand that the government prove its case with proof beyond a reasonable doubt as each and every element of the crimes charged. The government has that never shifting burden that they must prove to a jury to that high standard of proof beyond all reasonable doubt. If all of the jurors don’t agree (unanimously), then there is no conviction.

This is a New York State crime. Every state has its own crimes with its own penalties. This is a criminal trial which means the prosecution is trying to mark him a felon for the rest of his days and in all likelihood, if convicted, they will ask for jail.

What is he not charged with?

This New York prosecution has nothing to do with January 6th. It has nothing to do with any sort of attempt to “overturn” the 2020 elections. He is not charged with any federal crimes. He is not charged with any federal election or federal campaign finance charges. This is strictly a New York state based case for events surrounding the records of his New York businesses.

What is the crime of Falsifying Business Records in New York?

You can read the law for yourself here:

A person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof. Falsifying business records in the first degree is a class E felony.

Source: New York Consolidated Laws, Penal Law – PEN § 175.10 Falsifying business records in the first degree

Jury Instructions

As a trial attorney it is always vital to start with the jury instructions which is the way the judge will tell the jury members to look at the evidence that they determine (meaning it is for the jury and the jury alone to determine who they believe or disbelieve) and then apply the law as the judge gives them (not as they wish it to be). That’s the jury instructions. Jurors don’t have to justify or explain their decisions. They don’t have to have a reason for why they vote. They can convict or acquit based upon literally nothing. That is the power and the danger of a jury. They can’t be deposed under oath to find out why they voted a certain way. If they want to talk about their experience or even the deliberations, there is no law against it, but it must be done after the jury is discharged from service. No juror is commanded to come to a decision either. A juror is perfectly within his or her rights to not vote either for not guilty or guilty. That failure to decide can result in a hung jury with a retrial. If all of the jurors don’t agree, then that too can be a hung jury with a mistrial.

Here is what the standard jury instructions are for this crime. The blanks and alternatives will be filled in by the judge upon consultation with the defense and the prosecution. this is the standard jury instruction and can be modified additionally by the judge.

FALSIFYING BUSINESS RECORDS IN THE FIRST DEGREE

Penal Law § 175.10 (Committed on or after November 1, 1986)

The (specify) count is Falsifying Business Records in the First Degree.

Under our law, a person is guilty of falsifying business records in the first degree when, with intent to defraud that includes an intent to commit another crime or to aid or conceal the commission thereof, that person:

[Select appropriate alternative: makes or causes a false entry in the business records of an enterprise; or alters, erases, obliterates, deletes, removes or destroys a true entry in the business records of an enterprise; or omits to make a true entry in the business records of an enterprise in violation of a duty to do so which he or she knows to be imposed upon him or her by law or by the nature of his or her position; or prevents the making of a true entry or causes the omission thereof in the business records of an enterprise.]

The following terms used in that definition have a special meaning:

ENTERPRISE means any entity of one or more persons, corporate or otherwise, public or private, engaged in business,

BUSINESS RECORD means any writing or article, including computer data or a computer program, kept or maintained by an enterprise for the purpose of evidencing or reflecting its condition or activity.

INTENT means conscious objective or purpose. Thus, a person acts with intent to defraud when his or her conscious objective or purpose is to do so.

In order for you to find the defendant guilty of this crime, the People are required to prove, from all of the evidence in the case, beyond a reasonable doubt, each of the following two elements:

1. That on or about (date) , in the county of (county) , the defendant, (defendant’s name), [Select appropriate alternative: made or caused a false entry in the business records of an enterprise; or altered, erased, obliterated, deleted, removed or destroyed a true entry in the business records of an enterprise; or omitted to make a true entry in the business records of an enterprise in violation of a duty to do so which the defendant knew to be imposed upon him/her by law or by the nature of his/her position; or prevented the making of a true entry or caused the omission thereof in the business records of an enterprise;] and,

2. That the defendant did so with intent to defraud that included an intent to commit another crime or to aid or conceal the commission thereof.

If you find the People have proven beyond a reasonable doubt both of those elements, you must find the defendant guilty of this crime. If you find the People have not proven beyond a reasonable doubt either one or both of those elements, you must find the defendant not guilty of this crime.

Source: Standard Jury Instructions for New York crime of Falsifying Business Records (Felony)

The indictment

Here is the indictment against Donald Trump that you can read for yourself: Donald Trump indictment

Curiously, the indictment itself does not specify what the “[an]other crime” itself was that the government must prove beyond a reasonable doubt that he falsified the business records with the intent to commit or aid or conceal the commission of. It must not be required in New York state to specifically state it in the indictment itself.

According to various reports, the elected DA at the time that the indictment was unsealed said that the other crime was “to conceal crimes that hid damaging information from the voting public during the 2016 presidential election.”

The courtroom prosecutor Matthew Colangelo during his opening arguments said “This was a planned, coordinated, long-running conspiracy to influence the 2016 election to help Donald Trump get elected through illegal expenditures, to silence people who had something bad to say about his behavior, using doctored corporate records. It was election fraud, pure and simple.”

In other words, the “Catch and Kill” scheme. Is the “catch and kill” scheme in and of itself illegal?

What is the basics of the case?

It’s kinda like modern art, I think. I have spent an unhealthy amount of hours understanding the allegations to the point where I think that the allegations are like modern art meaning that two reasonable and sane people can reasonably disagree what it is all about. 

Here is the “no spin” straight shooting simple view of the complicated allegations involving all of the moving parts.

The crux of the allegations involves Michael Cohen, a lawyer, receiving Trump business or Trump Trust account monies and then re-distributing them. However, a potentially more pivotal figure in the case is David Pecker, former chairman and CEO of American Media Inc. (AMI). AMI owns the National Enquirer, which is central to the “catch and kill” scheme.

The “catch and kill” scheme is a tactic where potential whistleblowers or bad reputation witnesses are paid for their stories by AMI under the ruse that they were in fact going to publish the information gathered, but with the real world settled intent that AMI was never going to publish the stories, effectively burying the information (killing it). AMI had the folks sign non-disclosure agreements under the ruse of making it a National Enquirer exclusive, but again under the scheme with the settled intent not told to the people that in reality they were never going to publish the information. This is why it was called “catch and kill.”

Some bad facts for Trump:

1. Despite being referred to as his “personal attorney,” Cohen did not have a retainer agreement. There was no engagement letter. There was no document that explained the scope of his representation. There was no written agreement as to the compensation that he would get and in exchange for doing what. There are no records that show that he produced anything tangible like memos or documents or contracts. There was no pre-existing body of work that Cohen had with Trump or the Trump organization before June of 2015. These are the allegations as I understand them to be. Again, allegations, not proof.
2.  From April to December 2017, Trump is alleged to have personally issued nine checks from his business account made out to Cohen and signed by him personally. This is, from Trump’s point of view, an unfortunate detail that ties him directly to the case. What he thought the checks were for is a question that the evidence will have to show or not show. Reasonable inferences can be made by the jury based upon the admitted evidence. The focus is on the nine personally signed checks to Cohen.
3. There were at least two or more “Catch and Kill” cases by AMI during the campaign in addition to Stormy Daniels, allegedly.
4. The corporate records are alleged to clearly state that the payments to Cohen were for legal work, and not as reimbursement for expenditures and certainly nothing about reimbursement for expenditures to third parties.

The primary accusation is that these payments to Cohen were not for legal services as indicated in the company’s books, but rather for suppressing damaging stories through the “catch and kill” method that would directly benefit Trump’s candidacy. 

Where the difficulties for the Government are:

Here is where I see are some clear points of difficulty for the government:

1. Michael Cohen. Is he believable and someone who jurors can trust? Would you stick a stamp on an envelope for your mortgage payment and trust him to mail it for you? That’s for the jury to decide. Some of his claims will be supported by some documents such as the evidence that his personal home equity account was drawn down for $131,000 which is $1000 more than the exact amount that AMI paid Stormy Daniels.
2. David Pecker. AMI entered into a non-prosecution agreement with the U.S. Attorney’s Office for the Southern District of New York in connection to the payoff made to Woman 1 (McDougal), admitting it did not intend to publish a story at any time during the negotiation or acquisition of her story, the practice known as “catch and kill,” according to the statement of facts. Pecker was granted immunity. There are clear motivations that could be questioned there and the defense could claim that for the price of freedom that he would say anything.
3. Trump Organization Chief Financial Officer Allen Weisselberg. He is involved in the signing of the first check and many other events involving shell companies and Cohen and Pecker. Weisselberg pled guilty to tax evasion on a separate case. According to the terms of the plea agreement, he agreed to a five month jail sentence and agreed to testify against the Trump Organization at its trial. But, the plea agreement did not require him to testify against Trump himself. But the defense will clearly argue he feels pressure to say whatever he thinks the government wants so that he is not later tried for conspiracy to commit falsifying business records (although he has a potential affirmative defense that might work, but why risk it?).
4. The distracting clowns. The doorman. McDougal. Daniels. They are necessary witnesses but they are nuisances that may get the jury to hate them as opportunists and simply after the money calling into question their anticipated testimony that they understood the pay-out not to be exactly a payout but instead “hush money” and not merely rights for their story with the intent to publish. 
5. THE MOST IMPORTANT ISSUE FOR THE GOVERNMENT FROM A LEGAL POINT OF VIEW: The essence of the charges is not just about the act of falsification itself but the intent behind it. In legal terms, intent refers to the conscious decision to commit an act known to be wrong. It doesn’t require premeditation or long-term planning; merely the knowledge and decision at the time of action is enough. A specific object of the intent is required. The intent has to be to commit “another crime,” aid in its commission or conceal it. What is that other crime? Even in his opening the prosecutor did not name a specific other crime. He said: “It was election fraud, pure and simple.” Now, I am a simple blue collar, ham and eggs, knuckle-dragger criminal defense attorney. I’m not a product of Yale or Harvard. If I were the defense, I’d stand up and say “Where’s the beef?” Meaning rather than saying “election fraud” I would want the prosecution to give me a specific name of a crime and the code section. In New York for example, there appears to be the following New York state “election fraud” like statutes: (1) Fair Campaign Code Violations, (2) Candidate Residency Requirements, (3) Law Concerning Nominating Petitions, (4) Laws Concerning Campaign Signs, and (5) Volunteers Registering Ineligible People to Vote. On the federal level, there appears to be specific crimes like: (1) campaign finance, and (2) the procurement or submission of voter registration applications that are known by the person to be materially false, fictitious, or fraudulent and several others. The prosecutor, for me, would have to be very specific. Generally saying, “campaign fraud” without an accompanying specific title of a crime and its section, would not cut it for me (or likely on appeal).

This trial is unprecedented and its implications are immense, not just for Trump but for the legal and political landscape. Stay tuned as we continue to break down the facts and dissect the legal proceedings. No fluff, just straight facts.

Next I think we will talk about:

• The Right of candidacy
• What the potential sentences would be if convicted
• Can a sitting President be jailed?