Law&Crime Sidebar - 5 Key Defenses Donald Trump’s Team Could Use to Fight Felony Charges

Starting point is 00:00:00 Wondery Plus subscribers can binge all episodes of this Law and Crimes series ad-free right now. Join Wondry Plus in the Wondery app Apple Podcasts or Spotify. Agent Nate Russo returns in Oracle 3, Murder at the Grandview, the latest installment of the gripping Audible Original series. When a reunion at an abandoned island hotel turns deadly, Russo must untangle accident from murder. But beware, something sinister lurks in the grand. views shadows. Joshua Jackson delivers a bone-chilling performance in this supernatural thriller that

Starting point is 00:00:35 will keep you on the edge of your seat. Don't let your fears take hold of you as you dive into this addictive series. Love thrillers with a paranormal twist? The entire Oracle trilogy is available on Audible. Listen now on Audible. Earlier this afternoon, Donald Trump was arranged on a New York Supreme Court indictment, returned by a Manhattan grand jury, on 34 felony counts of falsifying business records in the first degree. Former President Donald Trump returned to his native New York and pleaded not guilty to the charges

Starting point is 00:01:07 against him. So how might his lawyers defend the case? All right, before we kick off our latest episode of Sidebar, we got to thank our sponsor of this video, UGov. So UGov is the go-to side hustle for so many people. It pays to give your valuable opinions. You see, as a

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Starting point is 00:01:57 gift cards and cash incentives. All you can do you can answer. got to do is click the link in the description box below, and then you can start making some extra money on your own schedule. I'm Ann Jeanette Levy, and welcome to Law and Crime's Sidebar podcast. Never before has a president, current or former, been charged with a crime, not until now. TV cameras were not allowed in the courtroom, just one still photographer before Mr. Trump's arraignment began. The 34-count indictment was unsealed Tuesday afternoon. Trump faces 34 counts of falsifying business records in the first degree. Those are felonies. The charges relate to hush money payments Donald Trump is accused of making to porn star Stormy Daniels

Starting point is 00:02:37 and former playboy model Karen McDougall. As I mentioned, one of those payments went to Karen McDougal, a former playboy playmate who said she had an affair with Trump and actually loved him. David Pecker paid her $150,000 for her story. She spoke to law and crimes Brian Ross in 2020 about her relationship with Trump. You know, God forgive. I've repented for what I've done, what I did back then with McDonald. I've apologized publicly. And most importantly, I've been forgiven by you. So I'm happy. A $130,000 payment went to Stormy Daniels, the adult film star. Now, hush money payments are nothing new and they're really not illegal. But prosecutors say the crime came from the way the expenditures were documented on the Trump organization's

Starting point is 00:03:25 business records. The defendant repeatedly made false statements on New York business records. He also caused others to make false statements. The defendant claimed that he was paying Michael Cohen for legal services performed in 2017. This simply was not true. For his part, Trump denies that he ever had an affair with these two women, and he claims there is no crime. As it turns out virtually everybody that has looked at this case, including rhinos and even hardcore

Starting point is 00:03:59 Democrats, say there is no crime and that it should never have been brought. Joining me to discuss possible defenses that President Trump may use is Paul Callan. He is a former New York City prosecutor and currently a practicing criminal defense attorney. He also focuses on wrongful conviction litigation at Edelman and Edelman in New York City. Paul, welcome to Sidebar. Thanks for coming on. Oh, good morning. Nice to be with you. Good to be with you as well. The thing that really stood out to me last night. I was sitting in the recliner going through the indictment, looking through it. This is a felony because according to the indictment because according to the indictment, because according to the indictment, because according to the indictment, there in New York County. But I see no mention of an underlying business records charges felonies according to the indictment and according to Alvin Bragg, the district attorney there in New York County. But I see no mention of an underlying. crime in the indictment. And I was actually posing this question on Twitter last night. Do President Trump's lawyers go to the judge and say, this indictment is defective? The answer to that, I believe, is clearly yes. That will be one of the most important motions that they will file in the

Starting point is 00:05:11 case is to dismiss this indictment as being facially defective. And I find it very, very strange that you have a case that requires an underlying crime to be proven, and you don't specify in the indictment what that underlying crime is. The due process requires that a defendant in a criminal case has to know what the charges against him really are and the specifics of those charges. Now, there is a mechanism under New York law where you can, and everybody does you file a motion for a bill of particulars to be given to you with respect to the specifics of the crime. But those bills of particulars are generally where you're delving more into the individual facts of the case as opposed to the specification of the laws that are violated.

Starting point is 00:06:05 Usually an indictment makes very clear what laws they are claiming to have been violated. And this provision falsifying business records, it's a misdemeanor to just falsify a business record in New York. It only becomes a felony if you have falsified that record to, one, with the intent to defraud somebody or something. And it also has to, it's got to violate another law of some kind. And nothing specified in the charging document here to cast any light on this. So if you're representing President Trump in this case, what is your first step? Well, the first step is going to be to make a motion to dismiss the indictment on the grounds that the charging documents fails to specify a crime. The subcrime that they say was being covered up,

Starting point is 00:06:56 I think it arguably renders the charging document defective. That was the feeling I got from looking at it as well. What do you do then after that? Because I'm assuming that the, obviously the prosecution is going to argue against that, but they, I guess, could go back? Could they get a superseding indictment and amend the indictment? Is that a possibility? It is a possibility. There are procedures that are different than the, you know, the feds supersede all the time. And this, on a state level, sometimes it's a little bit harder. Sometimes you have to get the permission of the judge to resubmit the case to the grand jury to clarify something. So there'll be a lot of, I would think back and forth and motion practice on this as to whether there has to be judicial

Starting point is 00:07:40 permission to represent. And if the judge, in fact, would allow a representation if the judge thinks that the indictment is defective on its face. Do you see the judge finding this indictment defective? I know I'm asking you to speculate, but you've practiced in New York for a long time. Well, I can tell you that Judge Mershan has a reputation for being a very bright guy, very serious guy who is going to look hard at this indictment because he knows one thing. This case is going, if there's a conviction in this case, it's going up on appeal. And the appellate courts will be looking at everything that he's done and it has to be within the letter of the law. So I think he'll make a very careful decision about this.

Starting point is 00:08:23 I can't tell you how he will actually rule. There'll be pressure on from all sides on him. But I'm confident he'll make a decision based on his honest view of the law. something else that you and I were discussing before we started recording here is the fact that Alvin Bragg made reference to a state election law in his press conference yesterday. And the statement of facts, bullet point number 43, it says on or about the summer of 2016 and in bold, it says in coordination with and at the direction of a candidate for federal office, I am the CEO of a media company at the request of the candidate, blah, blah, blah. This is part of Michael Cohen's plea.

Starting point is 00:09:02 They're citing that. Trump's former fixer and personal lawyer, they're talking about being a candidate for federal office. But as you mentioned, Alvin Bragg mentioned a state election law. And that just seems to not jive with me, because if we're talking about a federal election law, they have to comply with federal election, rather, they have to comply with the federal election rules for those funds. State law may not apply. Yeah, it may not apply. And I guess you have to look at the background on the context of these charges to see why Bragg made the reference to state law. This case was considered by the Department of Justice, who eventually indicted Michael Cohen

Starting point is 00:09:42 for his violations of federal law, not state law. But there was no decision to indict President Trump. Now, at first, everybody was saying, well, the reason for that was he was a sitting president. There's a Department of Justice policy that we don't indict sitting presidents. But then there was a long period that he's been out of office, where if there was a legitimate case, federal case, like there was against Michael Cohen, the Department of Justice could have lodged an indictment. They have chosen not to do so. So when DA Brad goes forward on a state level with this charge, he's one of the criticisms was, well, to prove this, because to elevate falsifying business records as a misdemeanor, which is only punishable by a year in jail. And by the way, the statute of limitations has probably run on it, which, by the way, is another whole issue here in terms of defenses in this case. To elevate that to a felony, it's a

Starting point is 00:10:38 class E felony punishable by five years in prison in New York, you have to prove that the falsification was done to cover up another crime. The crime that if the crime is a federal crime, there's a lot of criticism about that. Well, you know, the feds didn't even decide to proceed on the federal crime. By the way, the federal election commission that normally makes recommendations about whether to prosecute or not prosecute recommended not prosecuting Trump on this very charge. And the Department of Justice seemingly followed that recommendation. So Bragg is trying to come up with a state crime, New York state crime that this can relate to. So he's referred to a state, an obscure statute that says, if you engage in a conspiracy

Starting point is 00:11:22 to unlawfully promote a candidacy, that's a violation of state law. law says Brad. But this is a federal election. This is not a state election. And federal elections are generally controlled by federal law. So I think this could cause problems going down the line when an appellate court looks at the case or maybe even when the trial judge looks at the case. Something you brought up, the fact that the FEC didn't think this was basically, it sounds like they thought it was small potatoes and not worth the effort or the time because it probably would cost a whole lot more to prosecute the case and to bring it than the money we're talking about. So they probably have bigger concerns when it comes to election or campaign funds.

Starting point is 00:12:05 Maybe that, but it may also be that all of the Republicans on the commission voted not to indict Trump and all of the Democrats voted to indict Trump. So it might have been a strictly political decision by the Federal Election Commission. Good point. I had not thought of that. Yes. So not. Not. that politics would have anything to do it. Never, never, never, never. Okay. Let's go on now to the statement of facts. That's something else that we were looking at. The statement of facts is a document that's about 13 pages. And this basically was something that is on the Manhattan DA's website. It's right here. And it talks about what they believe occurred and what they say occurred and how

Starting point is 00:12:50 they're justifying these charges. It appears to be a court document, but you had some questions about whether or not the grand jury voted on this. There's no, there's no signature of a four person. There's no mention of a four person at the end. It's just signed Alvin Bragg, District Attorney for New York County. Yeah, I found it to be very, very strange because these federal indictments, usually it's a single document that includes, it may include facts relating to the case, of course. Sometimes they're worked right into the counts in the indictment. Each count has the facts supporting the elements of the crime. That's how a state indictment in New York generally looks. Now, sometimes you'll have an entirely separate statement of facts, but that is also part

Starting point is 00:13:34 of that same charging document. Here, we have two charging documents, presumably, but what has been publicly released, we can't tell whether the grand jury voted on that statement of facts, or is that simply something that was generated by the Manhattan District Attorney's Office. I'd like to see some clarification on that. I really, I really don't know. And if that statement of facts was not endorsed by the grand jury, I get back to point number one that I was talking about earlier about it maybe being a defective indictment because without that statement of facts, it's really impossible to know what the indictment is talking about. It'll refer to voucher 74651. I'm just making up the numbers there, which is something that maybe Michael Cohen submitted. But you don't know what specifically

Starting point is 00:14:22 what it related to. And it's very, very unclear without that statement of facts as to what the indictment is talking about at all. So let's go back to the statute of limitations. A lot of people, and you mentioned it, the statute of limitations is up or maybe up on this. So what do you do with that argument? Well, I'll tell you something. It's really going to be a battle between lawyers on statute of limitations because this case has a five-year statute of limitations. All right. Now, when you think about it, let's just focus on the Stormy Daniels stuff for a moment. His alleged affair with Stormy Daniels, as I understand it, actually goes back to 2006. Okay, that's how old this case is.

Starting point is 00:15:06 2016 is the presidential election. And so her going and trying to threaten to publish the story about the affair could have damaged the Trump candidacy. And even the statement of facts refers to the Access Hollywood thing. remember that incident on the bus when Trump was making all of those outrageous statements about how being a celebrity, he can sleep with anybody he wants or words to that effect. That gets invoked by District Attorney Bragg and his statement of facts or grand jury statements of facts in the case. So it's an old, old case to begin with. But even if you believe the crime happened in 2016, the statute of limitations has expired. It's a five-year statute of limitations. So the prosecution

Starting point is 00:15:52 is going to invoke a concept that's called tolling of the statute of limitations, that when somebody leaves the jurisdiction, that that tolls the statute of limitations. And so it extends it. In other words, the time you're out of the jurisdiction gets deducted from the statute. And Bragg's prosecutors have apparently gone through every trip and every place that Trump was since 2016. And every time he's out of New York, they're deducting that from the statute of limitations. Now, that's an approach to the statute that you don't see very often. Usually, I mean, the statute itself even refers to continuously being outside of the jurisdiction. It doesn't refer to one or two-day trips, that sort of thing. Now, there's been some case law on it

Starting point is 00:16:38 from the past. That'll be the subject of argument. But there'll be a strong argument that the statute of limitations has expired. And the one thing I wanted to raise with you also, because my time's almost up in the sense that I've got another conference I have to get to. in about three minutes. So I just want to leave this because I haven't heard anybody talk about this. But when you try criminal cases and you defend criminal cases, sometimes you don't get into the weeds like we have been talking about these issues. You talk about thematic issues. And when you, I think these attorneys will be looking at portraying Trump as the victim of blackmail and extortion by Stormy Daniels. Stormy Daniels has kind of been, especially when Avanotti

Starting point is 00:17:20 was representing her, you know, she was portraying. as the victim of this. But I think defense attorneys will say, I mean, what's really happened here is Stormy Daniels was trying to extort $130,000 from Donald Trump or she would go public with this claim and destroy maybe his marriage, his family, and his political career. Now, under New York law, that's called extortion. When you plan to publicly humiliate or destroy the reputation of somebody else by publicizing even a true fact, that can create an extortion charge. So I think they're going to try to turn this around and make Trump the victim. Now, Trump, of course, says he never slept with Stormy Daniels. But in his claim will be, I never slept with it,

Starting point is 00:18:08 but she's trying to make it look like I did and ruin my life. And I had every right to try to defend myself from that. And now, instead of locking her up, they're trying to lock me up. We haven't even gotten to Karen McDougal yet. So in 20 seconds, maybe 30 seconds, Paul, because I know I don't have you for much longer. Also, this whole catch and kill thing sounds very like illicit and unsavory, but is that really illegal? And could the Trump team just argue, look, Michael Cohen was my lawyer. I just told the guy to take care of stuff for me. So he did whatever he did. And I just knew a little bit about it. Oh, I think you're on to something there because you notice Michael Cohen sometimes plays a tape recording of his conversation

Starting point is 00:18:50 with the president about paying, presumably paying off Stormy Daniels. And you notice Trump is very vague. He's not saying pay her off and do it this way or do it that way. And then Michael Cohen jumps in and says, we can't pay her in cash. We can't do this. We can't do that. It's clear that Cohen is figuring out how to get this done. And Trump's not, Trump just looks distracted and like he's thinking about something else

Starting point is 00:19:18 when he's talking to Cohen. So the defense will be to shift all of this to Michael Cohen. He was the bad actor and not Trump. So that kind of a defense, I think you'll see articulated by defense attorneys as well. Paul Callan, we really appreciate your time today. Thanks so much for coming on to discuss this, and we hope you'll come back. My pleasure, as always. Thank you.

Starting point is 00:19:39 And that's it for this edition of Law and Crime Sidebar Podcast. You can download it on Apple, Spotify, Google, and wherever else you get your podcast. And of course, you can always watch it. on Law and Crimes YouTube channel. I'm Ann Janette Levy, and we will see you next time.

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Law&Crime Sidebar - 5 Key Defenses Donald Trump’s Team Could Use to Fight Felony Charges

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