The Daily - How Strong (or Not) Is New York’s Case Against Trump?

Episode Date: April 12, 2023

In the week since Donald Trump was arraigned on 34 felony charges, debate about the strength of the case against him has only intensified.Charlie Savage, a Washington correspondent at The Times, has closely studied the case and explains which side he stands on.Guest: Charlie Savage, a Washington correspondent for The New York Times.Background reading: Trump could turn to a familiar legal strategy: attack and delay.Analysis: A surprise accusation bolsters a risky case against Trump.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday.

From The New York Times, I'm Michael Barbaro. This is The Daily. This case has problems from the get-go. The longer I look at it, the more problems I see. In the week since Donald Trump was arraigned on 34 felony charges. I think it's strong prosecutorial tradecraft. This is a well-written indictment. The debate about whether the case against him is either weak or strong has only intensified.

The indictment is insufficient on its face. It was just a bunch of papers that were stapled together. These facts are not that squishy to me. This seems like a straightforward business records fraud case. I think this is even weaker than I feared it would be. You've got tapes. You've got records. You've got a recipe for a very strong case. This is crap that a pre-law student shouldn't even put in front of a damn judge.

Today, my colleague Charlie Savage has been closely studying the case to understand which side is right. It's Wednesday, April 12th. It's Wednesday, April 12th. always had a pretty good sense that he was going after Trump for falsifying business records. That was kind of the base of the case, which is a set of misdemeanors. But we knew that Bragg would need to prove a second crime in order to make those charges turn into felonies. And then the indictment comes down, and we don't get an answer to what that second crime is going to be. We still don't have an answer to that. And that's why it feels like there's such a lively debate playing out about whether this case is strong or whether it's weak. And that's where you come in because you are very smart

about legal questions and prosecutions. So with all that in mind, where should we start? Well, let's start by breaking this down. As you just mentioned, normally bookkeeping fraud, falsifying business records under New York penal law is a misdemeanor. To make it into a felony, that crime had to be committed with the intention of concealing or committing some second crime. And so the question hovering over all of this for weeks of concealing or committing some second crime.

And so the question hovering over all of this for weeks leading up to the unsealing of this indictment has been, what is that second crime? What is Alvin Bragg's theory of the case to turn a trivial misdemeanor case to a serious felony case that he can still bring? And so the unveiling of the indictment and the statement of facts when Trump was arraigned was our first opportunity to really see what is his theory of the case.

And there was new insight in there and some things that had not been talked about before. And at the same time, it was maddening. It was infuriating because he still was not clear about it. There's nowhere in here where he says, this becomes a felony because X, or this becomes a felony becomes Y. So we have to infer what he's getting at, both from the statement of facts that accompanied the indictment and from statements in the courtroom and his press conference. But before we infer too much, what should we make of the fact, Charlie, that the district attorney has chosen not to tell us what he thinks the second crime is or which potential second crime he's likely to pursue? Well, when he was asked, why didn't you just tell us at his press conference

afterwards, he said, well, the law doesn't require me to at this stage. So there's that. It is possible there is some strategic advantage to this. It's possible that this is some kind of trial balloon situation where he's throwing out concepts and wants to see, because there are some novelties surrounding this case, what do law professors and former prosecutors and talking heads on TV say about it? And there's some kind of hive minding that will help him refine his own theory or what appears to be actually maybe multiple alternate theories he's going to put forward. But that's just my speculation. I feel like he ought to have told us. I would have liked to have known on Tuesday. Do it for us, district attorney. For me, really. Isn't that what's

important? Satisfying my curiosity? Yes, yes, yes. So in the meantime, that leaves us still trying to figure out what the second crime will be. And you had mentioned that the indictment did reveal a few new insights into what Bragg is up to. So let's talk about what we think, based on everything we now know, about what the second crime is likeliest to be, and how strong or how weak that second crime might end up being, legally speaking. So in general, it looks like there's going to be two broad categories of crime that he'll be pointing to or gesturing at. And as a preliminary matter, he doesn't have to prove that this second crime occurred. He only has to prove that Trump intended for a second crime to be concealed or advanced when he caused the Trump organization's business

records to be fraudulently entered. And it looks like there's two broad categories of things he's going to gesture at. One is campaign finance crimes, and the other is intended false statements to tax authorities. So let's start, Charlie, with campaign finance. How easy or how hard do we think it will be for Bragg to make that the second crime? So to back into that, we need to quickly remember what we're talking about here. So this takes us back to the 2016 campaign, the final month. A porn star, Stormy Daniels, has come to the Trump world and said, I'm going to talk about this extramarital affair your candidate had with me shortly after his current wife gave birth to his son. And Michael Cohen, Trump's fixer and lawyer, sends her $130,000 October 2016

to keep her quiet through the end of the election. This raises a question. Was that a campaign finance expenditure intended to affect the election, keep this information from voters? Was that a personal life expenditure intended to keep this information from Melania Trump and from Barron Trump, his son? Inherently murky. In 2017, Trump reimburses Michael Cohen for that money. So if, and this is the thing Alvin Brad would need

to prove as part of all this, if he can convince a jury that that was a campaign expenditure, then those financial transactions were regulated or should have been regulated by campaign finance law. And that means that Michael Cohen made an unlawfully large contribution to the 2016 Trump campaign. Individuals can't give $130,000 to someone else's campaign. And in 2017, when Trump reimburses him, he should have reported that publicly on his FEC campaign spending filings, which he did not. So a lot of that turns on, was that in fact a campaign expenditure or a personal life one? An inherently ambiguous question.

Well, let's talk about why that's ambiguous. I mean, if a hush money payment is made weeks before a presidential election, it seems intuitive, if I'm a DA or a juror, that it's connected to that election. I mean, the prospect of having an affair like that come out right before an election seems like it would be very, very embarrassing and exactly the reason to pay someone off. So what makes that so difficult to prove? So the strong part about it is the timing. Apparently, Daniels had tried to get money before and was rebuffed. And so suddenly, now it's October, we're a couple weeks from the election, and there's an uproar over the famous Access Hollywood tape, which Trump brags about groping women. The question is whether evangelical Christian types

in particular are going to abandon him. Maybe this porn star's accusation of an extramarital affair would just destroy the campaign and suddenly she gets paid when before she did not. That would be what the prosecution would say to the jury. This was obviously about the campaign. But the defense team can say, no, because of the campaign,

this was going to get more intention. But what he really wanted to do was avoid personal embarrassment. He didn't want his wife to find out. He didn't want his son to find out. He says it's not true anyway, but it was just gross and he just wanted it to go away. And, you know, is there proof beyond reasonable doubt

that the motivation was A versus B? Got it. Looking at it from the outside, it could be both, right? It could be both at the same time. Right. And so there's something messy about campaign era payments to a mistress that is not as black and white as most of what we'd like to see in a courtroom. Right. Because you're saying in order for this to become the second crime that makes this all a felony, the DA is going to have to prove it's related to the campaign. But I'm also hearing you say, if I'm reading between the lines, that unless there's really hard evidence, I'm making this up,

but a recording where Trump says to Michael Cohen, make this go away, I'm worried about evangelical voters and the election happening in two weeks, then it's going to be hard to get inside his head and know whether the president was more concerned about the personal dimension of this or more concerned about the political side of it. If campaign finance crimes are the second crime that turns bookkeeping fraud into a felony, then yes, they will need to show that. And that's why

Daniels' earlier efforts to get money and being rebuffed for her testimony would be important to that. The testimony of Michael Cohen and what his conversations are with Trump surrounding that payment and then the reimbursements will be important to that. Was this a conversation about elections or was this a conversation about a wife? Things that would show Trump's motivation. That's the sort of evidence that a prosecutor would need to put forward to show this was done because of an election and not because of a personal life or not solely because of personal life. Charlie, I recall that Michael Cohen was convicted of his role in this same hush money payment scheme we're talking about, and that campaign finance was one of the reasons why. And I wonder if we should interpret that as increasing the odds that the district attorney is likely to get Trump on a similar campaign finance charge that would make this all a felony. Two people both involved in

the same scheme. One's already gone to jail over this. Kind of makes sense that the DA would see that as strong evidence that it's likely to work against Trump as well. If you talk to campaign finance law experts who are skeptical of this theory that Bragg seems to be playing with, of this theory that Bragg seems to be playing with. They are also skeptical of that conviction of Cohen. And the reason for that is that prosecutors were bringing a variety of charges against Cohen, most of which had nothing to do with this. It was other sorts of financial crimes. And he was pleading guilty. He was not going to trial. He was not fighting those charges. So they throw in this campaign finance one, and he agrees to plead guilty to it as part of this negotiated package.

And so that means it was never really tested in court. You never had someone standing up to a jury and saying, no, no, no, this was about his wife. This was about his kid. He didn't want him to hear about it. Doesn't that introduce reasonable doubt to you, Mr. and Mrs. Jurors? And so it superficially looks like it's been established, but maybe not. That's their point of view on that charge.

Right. It hasn't been truly tested in an adversarial prosecution defense environment. Exactly. Okay. So we should understand the campaign finance second crime scenario as one that on paper looks like it might be easy to prove. There's a lot of circumstantial evidence. But in reality, in the courtroom, it seems like it could actually be a bit of a challenge.

That's right. And remember, there was a very famous case that's kind of like this that was brought against John Edwards, former Democratic senator and 2008 presidential aspirant, involving money paid to a woman that he had not just had an affair with, but who had had his child.

Right. And whether that was a campaign finance crime to sort of pay her living expenses and keep her quiet while he was still seeking the Democratic nomination for president in 2008. And when that case went to trial, he was acquitted on one charge and the jury hung on the rest.

And the prosecutors decided not to try again. And so, you know, that case was a little different in some details. Payments to her kept happening after he had withdrawn from the race. And that was one reason it was even murkier. But it does illustrate, this is not an easy charge to bring, campaign finance charges related to money to a mistress.

It's just a sticky situation. And there's another wrinkle here. And what is that? And that has to do with federal law and state law. Remember, this is a state criminal case. This is a state prosecutor charging violations of a state law against bookkeeping fraud. But federal law, right, generally, is what regulates presidential elections. And so, to the extent he's looking towards campaign finance as that second crime that turns this state misdemeanor into a state felony. Is he going to invoke a federal crime, a federal law? Can a state prosecutor do that? Was this written to encompass laws that are not felonies in New York, but are felonies in

some other system of government? It's an untested issue. So these are things that have given people anxiety about the strength of his case, about its novelty, about the risk of the theories that Bragg seems to be relying on as he puts it forward. But there was new information that came out last week suggesting that Bragg might be bolstering his case with another, potentially stronger theory of the second crime. We'll be right back. So, Charlie, the first category in this basket of potential second crimes, campaign finance, clearly is precarious. So let's turn to the second one. What is it? The second category of potential crime that could elevate bookkeeping fraud from a misdemeanor to a felony has nothing to do with campaign finance. It has to do with taxes and

lying to tax authorities. This was not something that had received a lot of attention leading up to the unsealing of the arraignment. And even on the day of the unsealing last Tuesday, you had to sort of do a dumpster dive through the statement of facts, through the comments made on the side in the press conference and in the courtroom to see that the seeds were being planted to say that even if you don't buy this campaign finance thing, dear jury, there's this whole other category of potential crime that could still get you across the line. So to recall the elements of this, not only did Michael Cohen wire this $130,000 to Stormy Daniels in October of 2016,

but he was reimbursed by the Trump Organization over the course of 2017. And in its records, the Trump Organization said that was for legal services that he was performing in 2017 pursuant to a retainer. And we know from the case that there was no retainer. Right. It was a lot. It was not. It was a lot. And it was not for legal services performed in 2017.

It was to reimburse him for this payment he had made out of his own pocket in 2016. And on top of that, it wasn't just reimbursing him $130,000. It was reimbursing him basically twice that because he was going to, it appears, report this stream of money arriving every month into his bank account from the Trump Organization as if it were income for some service

that he had, something he had earned in 2017, which means he was going to have to pay taxes on it. And so, according to prosecutors, to make him whole so that he ends up with $130,000 at the end of all this, they had to pay him more, essentially laundering the stream of money so it looked like one thing, even though it was another thing. Right, which is basically tax fraud, because what you're describing is the misrepresentation of payments as taxable income. And so suddenly the second crime that we're now contemplating is lying to the government, lying to the local tax authority, New York State. Well, it could be both federal and state tax

authorities, right? Because you file taxes to both. And we don't know, again, what Bragg's theory and evidence is here. We don't know if the Trump organization issued a 1099 non-employment compensation form for payments to Cohen in 2017, and if so, what it said. But it's also worth thinking about one more

complexity, because this isn't complex enough. We need more complexity about this. Because you said actually two different crimes just now, Michael. You said tax fraud, and then at another point, you said lying to tax authorities. These aren't the same thing. Interesting. Tax fraud is paying less taxes, usually, than you actually owe. Whereas lying to tax authorities is a subset of the crime of giving false information to the government. Now, when it comes to tax fraud, this is a kind of funny situation, if you think about it. He's not under-reporting his income so that he has a smaller tax bill, and therefore cheating the government of New York out of some of the tax revenue

to which it's rightfully entitled. He's over-reporting his income. And so New York is ending up with more tax income than it otherwise would have if everything was on the up and up. But separately, whatever the weirdness of that, it is a crime in New York law to submit false information to the state government. Right. So I have to say, this looks like it would be an easy and definitely easier second crime than campaign finance to establish for Alvin Bragg, the DA, based on the fact that, you know, when you report things to tax authorities, it creates a pretty significant

paper trail. So am I right in thinking that this would be a relatively easy thing to pursue? Or is it actually secretly hard like everything else in this case? Well, I would certainly say easier. Easier. You know, while it seems to sidestep some of the complex issues with the campaign finance route, we still don't know what evidence Bragg has. We don't actually know if there's a paper trail. We don't know how he might try to convince a jury that Trump was intending at the time of the bookkeeping fraud to deceive tax authorities. Right. But remember that Alan Bragg doesn't apparently have to just put forward

one theory. Oh, the crime was this. Oh, the crime was that. As it was explained to me by former assistant district attorney's conversant in New York law, he can give alternate theories to the jury simultaneously.

Maybe it was this. Maybe it was that. Maybe it was federal campaign finance. Maybe it was state campaign finance. Maybe it was an intention to deceive federal or state tax authorities. In fact, he'll probably say it's all of the above. All of the above redundantly get us across the finish line to this being felony rather than misdemeanor. And as long as the jury, the jurors, are individually convinced by any one of those, they can vote to convict as a felony. Oh, that's really interesting. You're raising the possibility that of the 12 jurors, you know, I'm making this up, but you, but five might think that it was a campaign finance violation that gets this all to be a felony,

and seven might think it was a tax issue, and as long as they think that this is a felony, and they vote that way, that's fine. They don't all, in theory, have to even agree. I think you're putting your finger, Michael, on something that's very interesting and complicated about this.

If it's right that Bragg is moving towards putting forward an array of alternative theories and saying he believes all of them, but the jury just needs to believe one. And again, we're in this maddening situation where he hasn't said what he thinks the second crime is or what crimes, plural, were, since that seems to be where he's headed. So we're trying to infer from the outside. When he has to turn over a bill of particulars, assuming Trump's legal defense team asks for one in discovery, he'll have to say this more explicitly. And then at that point, we should understand this better. But it certainly raises the possibility that different jurors might have different theories of the case in their own heads. Charlie, it very much feels to me like this

concept of throwing multiple second crime felony charges against the wall and seeing what might stick. That idea has invited a lot of the debate that we have watched played out over the past week or so about the strength of this case. We hear many people saying this case feels flimsy or weak. And there are people on the other side who disagree and say it's stronger. But am I right to understand that Alvin Bragg's decision not to articulate one second crime that he wants to pursue clearly as being a big contributor to this debate about whether this is fundamentally just not that strong a case? case. Michael, I think that's right. And yet, at the same time, there's a chicken and egg issue here, which is if he had a singular knockout second crime, he wouldn't need to throw things against the wall, multiple things against the wall to see what sticks. The most natural second crime here is a campaign finance crime that he knows is going to attract accusations of novelty or problematic, legally untested overtones.

And that is leading him down this path of, there's this, and there's this, and there's this. There's so many things here, folks. Got it. The most natural case is potentially weak. So he wants a safety net. He wants kind of a legal parachute, which is how you go from just campaign finance to campaign finance plus potentially taxes,

which sounds a little bit like something of a risky strategy when you're taking on a former president of the United States, that kind of all-of-the-bove spaghetti approach. Well, that's one way of looking at it. Another is it's belt and suspenders, right? If one fails, the other's there, vice versa. Right, which isn't necessarily a bad thing. So Charlie, what happens if Alvin Bragg can't prove one of these second crimes, and he ends up being left with basically a bunch of misdemeanors? left with basically a bunch of misdemeanors. Because we talk about these 34 charges as felony charges, but they're not felonies until they're made into felonies by the second crime. So if you don't get the second crime, what does that look like? Well, that creates two possibilities, neither of which are great for Bragg. It will come down to what the judge's instructions to

the jury are at the trial. Either the prosecution or the defense team could ask the judge to instruct the jury that it has the option of finding Trump guilty of misdemeanor bookkeeping fraud, because the elements of that are included in the felony charges that Bragg actually charged him with. Or they could choose not to ask the judge to let the jury know that it has that option. And then it would be all or nothing. Find Trump guilty of felonies or acquit him. At this stage in the case, we do not know which of those two paths will be taken. Right. So what you're really saying is without the second crime, Bragg is either

left with a bunch of misdemeanors, which is not really that impressive a case, or he's potentially left with nothing at all. So in a way, this second crime, establishing it, being able to make that

case to the jury, really does feel like the whole ballgame. That's right. And without it, it would be a complete collapse for the district attorney and a huge vindication for Trump. And that would be why people are nervous about, of all the investigations against Trump, this one going first. Well, Charlie, thank you for explaining all this. We really appreciate it. My pleasure. On Tuesday, District Attorney Alvin Bragg filed a federal lawsuit designed to defend his case against one of its fiercest critics, Republican

Congressman Jim Jordan of Ohio. The lawsuit seeks to block Jordan and his Republican allies in Congress from trying to obtain confidential materials compiled during Bragg's investigation of Donald Trump. In the lawsuit, Bragg described that effort as a, quote, brazen and unconstitutional attack against the office of the district attorney and an effort to interfere with his indictment against Trump.

We'll be right back. we learned that Deanna Eckert passed. She was 57 years old. As the death toll from Monday's mass shooting in Louisville, Kentucky, rose to five, police said that the suspected gunman used an AR-15 rifle that he had legally purchased just six days before the attack. During a news conference, local elected officials said that under current gun laws, they simply lacked the tools they needed to stop such massacres.

Our community is hurting, but we need policies in place that will keep this from happening again. And in a highly anticipated report, the Biden administration has proposed a way to confront the shrinking supply of water in the Colorado River by cutting the same percentage of water allotted to three different states, California, Arizona, and Nevada. Under the proposal, the amount of water distributed to each state would be reduced by as much as 25%, a scenario that would fall hardest on California. The imposition of such a proposal by the federal government would be unprecedented, but so far, efforts by the states to reach an agreement on their own have failed. A final decision about how to move forward is expected later this year. Today's episode was produced by Rob Zipko and Mu Zady, with help from Alex Stern. It was edited by Lisa Chow and Devin Taylor,

with help from Paige Cowett. Contains original music from Marion Lozano and Dan Powell, and was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Landfork of Wonderly. That's it for The Daily. I'm Michael Barbaro. See you tomorrow.