NY: Trump on Trial!

[Ljube]

Whatever it is, it is not election interference, because the election was over by the time Trump falsified his business records.

It doesn't matter. The payoff and silencing occurred before the election, when it could have made a difference in the election, and he presumably was planning at that time to later cover it up by falsifying his business records. It's an election interference case.

That is not a valid argument. The payoff and silencing are not crimes.

[emailking]

I don't care if you think it's valid. I'm making it.

[Ljube]

I don't care if you think it's valid. I'm making it.

I repeat, the payoff and silencing are not crimes.

[Ljube]

Let me clarify this further. The crimes alleged here are violation of campaign finance law and tax law violation.

This election interference theory is very complex and convoluted and depends on a conspiracy to defraud, which cannot be proven (Michael Cohen's testimony could be the only proof).

[emailking]

You might be right about what theories the DA will be allowed to argue and whether Trump will be acquitted or not, but I see nothing wrong with calling it an election interference case (informally, if you want to insist on that) when the whole sequence of events was intended to illegally influence the election, regardless of the temporal sequence of events.

What was the alternative, not covering it up? Then we'd all know what he did. He wouldn't have done it in the first place if he thought he would get caught.

[Fmr. Gov. NickG]

I'm curious about the tax fraud allegation.  It seems to stem from the fact that Michael Cohen falsely reporting reimbursements as income.  Even regardless of the fact that this increased the amount Cohen had to pay in taxes, how is this tax fraud on the part of Trump and not just Cohen?

All 34 counts allege the same charge of falsifying business records in the first degree. For each count, per New York's standard jury instructions the two elements that must be proven are:

(1) That on or about the date in question, Trump made or caused a false entry in the business records of an enterprise; […] and

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

[…] In terms of part (2) [of the statute], intent to defraud, "courts in the First Department have interpreted this culpable mental state broadly. Intent to defraud is not constricted to an intent to deprive another of property or money. In fact, 'intent to defraud' can extend beyond economic concern. Nor is there any requirement that a defendant intend to conceal the commission of his own crime; instead, 'a person can commit First Degree Falsifying Business Records by falsifying records with the intent to cover up a crime committed by somebody else.'" People v. Trump 2024 NY Slip Op 30560(U). […]

As part of establishing the second element of each falsifying records charge, DANY must prove that Trump intended to commit, aid, or conceal another crime—in this case, […] New York tax law. Importantly, DANY does not have to prove that Trump actually violated [New York tax law], but rather that by falsifying (or causing the falsification of) business records he had the intent to commit, aid, or conceal the commission of such crime(s). […]

For the purposes of tax violations, Bragg relies on two related tax provisions: New York Tax Law §§ 1801(a)(3) & 1802. Section 1801(a) sets out relevant tax fraud acts, with subsection (3) prohibiting "knowingly suppl[ying] or submit[ting] materially false or fraudulent information in connection with any [tax] return, audit, investigation, or proceeding." The tax fraud includes four elements: (1) a tax document filed, submitted or supplied; (2) falsity; (3) materiality; and (4) intent (willfulness). Any person who commits a tax fraud act, including under 1801(a)(3), is guilty, at a minimum, of criminal tax fraud in the fifth degree, a Class A misdemeanor crime under Section 1802, where the tax liability is less than $3,000. No additional mens rea is required, such as an intent to evade taxes or defraud the state. In this case, the primary alleged tax violation was Cohen falsely declaring the reimbursement as income, which artificially increased his tax liability. As Justice Merchan already found, however, an allegation of tax fraud where the state "was not financially harmed … and instead would wind up collecting more tax revenue" does not preclude the tax violation from being a predicate act for the first degree falsification of business records.

That explains why it might not matter that Cohen's taxes increased.  It doesn't explain why Trump would be the one charged with tax fraud and not just Cohen.

[Ljube]

I'm curious about the tax fraud allegation.  It seems to stem from the fact that Michael Cohen falsely reporting reimbursements as income.  Even regardless of the fact that this increased the amount Cohen had to pay in taxes, how is this tax fraud on the part of Trump and not just Cohen?

All 34 counts allege the same charge of falsifying business records in the first degree. For each count, per New York's standard jury instructions the two elements that must be proven are:

(1) That on or about the date in question, Trump made or caused a false entry in the business records of an enterprise; […] and

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

[…] In terms of part (2) [of the statute], intent to defraud, "courts in the First Department have interpreted this culpable mental state broadly. Intent to defraud is not constricted to an intent to deprive another of property or money. In fact, 'intent to defraud' can extend beyond economic concern. Nor is there any requirement that a defendant intend to conceal the commission of his own crime; instead, 'a person can commit First Degree Falsifying Business Records by falsifying records with the intent to cover up a crime committed by somebody else.'" People v. Trump 2024 NY Slip Op 30560(U). […]

As part of establishing the second element of each falsifying records charge, DANY must prove that Trump intended to commit, aid, or conceal another crime—in this case, […] New York tax law. Importantly, DANY does not have to prove that Trump actually violated [New York tax law], but rather that by falsifying (or causing the falsification of) business records he had the intent to commit, aid, or conceal the commission of such crime(s). […]

For the purposes of tax violations, Bragg relies on two related tax provisions: New York Tax Law §§ 1801(a)(3) & 1802. Section 1801(a) sets out relevant tax fraud acts, with subsection (3) prohibiting "knowingly suppl[ying] or submit[ting] materially false or fraudulent information in connection with any [tax] return, audit, investigation, or proceeding." The tax fraud includes four elements: (1) a tax document filed, submitted or supplied; (2) falsity; (3) materiality; and (4) intent (willfulness). Any person who commits a tax fraud act, including under 1801(a)(3), is guilty, at a minimum, of criminal tax fraud in the fifth degree, a Class A misdemeanor crime under Section 1802, where the tax liability is less than $3,000. No additional mens rea is required, such as an intent to evade taxes or defraud the state. In this case, the primary alleged tax violation was Cohen falsely declaring the reimbursement as income, which artificially increased his tax liability. As Justice Merchan already found, however, an allegation of tax fraud where the state "was not financially harmed … and instead would wind up collecting more tax revenue" does not preclude the tax violation from being a predicate act for the first degree falsification of business records.

That explains why it might not matter that Cohen's taxes increased.  It doesn't explain why Trump would be the one charged with tax fraud and not just Cohen.

Trump is not charged with tax fraud. Trump is charged with attempting to conceal Cohen's tax fraud.

[Ljube]

You might be right about what theories the DA will be allowed to argue and whether Trump will be acquitted or not, but I see nothing wrong with calling it an election interference case (informally, if you want to insist on that) when the whole sequence of events was intended to illegally influence the election, regardless of the temporal sequence of events.

What was the alternative, not covering it up? Then we'd all know what he did. He wouldn't have done it in the first place if he thought he would get caught.

Yes, we would all know, but only after the fact, after he had already won.

[Ljube]

Because it doesn't seem logical to me to cover something up after you have already won the election, I think his motives for covering this up are either to help Cohen, or because he didn't really think about it.

He will claim that he didn't really think about it.

[emailking]

Yes I agree with that of course, but I'm saying he would not have done it in the first place if he knew we would find out. Hence his motivation for covering it up even after he won. He really didn't want anyone to know.

[emailking]

He will claim that he didn't really think about it.

Unless that's going to be under oath it doesn't matter to the case in the courtroom what he will claim. And it doesn't matter to me personally what he will claim because I don't believe anything he says.

[Ljube]

He will claim that he didn't really think about it.

Unless that's going to be under oath it doesn't matter to the case in the courtroom what he will claim. And it doesn't matter to me personally what he will claim because I don't believe anything he says.

Bottom line, it appears to me he will have to testify and be very convincing at that.

[Fmr. Gov. NickG]

I'm curious about the tax fraud allegation.  It seems to stem from the fact that Michael Cohen falsely reporting reimbursements as income.  Even regardless of the fact that this increased the amount Cohen had to pay in taxes, how is this tax fraud on the part of Trump and not just Cohen?

All 34 counts allege the same charge of falsifying business records in the first degree. For each count, per New York's standard jury instructions the two elements that must be proven are:

(1) That on or about the date in question, Trump made or caused a false entry in the business records of an enterprise; […] and

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

[…] In terms of part (2) [of the statute], intent to defraud, "courts in the First Department have interpreted this culpable mental state broadly. Intent to defraud is not constricted to an intent to deprive another of property or money. In fact, 'intent to defraud' can extend beyond economic concern. Nor is there any requirement that a defendant intend to conceal the commission of his own crime; instead, 'a person can commit First Degree Falsifying Business Records by falsifying records with the intent to cover up a crime committed by somebody else.'" People v. Trump 2024 NY Slip Op 30560(U). […]

As part of establishing the second element of each falsifying records charge, DANY must prove that Trump intended to commit, aid, or conceal another crime—in this case, […] New York tax law. Importantly, DANY does not have to prove that Trump actually violated [New York tax law], but rather that by falsifying (or causing the falsification of) business records he had the intent to commit, aid, or conceal the commission of such crime(s). […]

For the purposes of tax violations, Bragg relies on two related tax provisions: New York Tax Law §§ 1801(a)(3) & 1802. Section 1801(a) sets out relevant tax fraud acts, with subsection (3) prohibiting "knowingly suppl[ying] or submit[ting] materially false or fraudulent information in connection with any [tax] return, audit, investigation, or proceeding." The tax fraud includes four elements: (1) a tax document filed, submitted or supplied; (2) falsity; (3) materiality; and (4) intent (willfulness). Any person who commits a tax fraud act, including under 1801(a)(3), is guilty, at a minimum, of criminal tax fraud in the fifth degree, a Class A misdemeanor crime under Section 1802, where the tax liability is less than $3,000. No additional mens rea is required, such as an intent to evade taxes or defraud the state. In this case, the primary alleged tax violation was Cohen falsely declaring the reimbursement as income, which artificially increased his tax liability. As Justice Merchan already found, however, an allegation of tax fraud where the state "was not financially harmed … and instead would wind up collecting more tax revenue" does not preclude the tax violation from being a predicate act for the first degree falsification of business records.

That explains why it might not matter that Cohen's taxes increased.  It doesn't explain why Trump would be the one charged with tax fraud and not just Cohen.

Trump is not charged with tax fraud. Trump is charged with attempting to conceal Cohen's tax fraud.

As I would read it, Trump didn't falsify records to conceal Cohen's tax fraud; rather, Cohen committed tax fraud to conceal Trump's falsification of records.

[Ljube]

I'm curious about the tax fraud allegation.  It seems to stem from the fact that Michael Cohen falsely reporting reimbursements as income.  Even regardless of the fact that this increased the amount Cohen had to pay in taxes, how is this tax fraud on the part of Trump and not just Cohen?

All 34 counts allege the same charge of falsifying business records in the first degree. For each count, per New York's standard jury instructions the two elements that must be proven are:

(1) That on or about the date in question, Trump made or caused a false entry in the business records of an enterprise; […] and

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

[…] In terms of part (2) [of the statute], intent to defraud, "courts in the First Department have interpreted this culpable mental state broadly. Intent to defraud is not constricted to an intent to deprive another of property or money. In fact, 'intent to defraud' can extend beyond economic concern. Nor is there any requirement that a defendant intend to conceal the commission of his own crime; instead, 'a person can commit First Degree Falsifying Business Records by falsifying records with the intent to cover up a crime committed by somebody else.'" People v. Trump 2024 NY Slip Op 30560(U). […]

As part of establishing the second element of each falsifying records charge, DANY must prove that Trump intended to commit, aid, or conceal another crime—in this case, […] New York tax law. Importantly, DANY does not have to prove that Trump actually violated [New York tax law], but rather that by falsifying (or causing the falsification of) business records he had the intent to commit, aid, or conceal the commission of such crime(s). […]

For the purposes of tax violations, Bragg relies on two related tax provisions: New York Tax Law §§ 1801(a)(3) & 1802. Section 1801(a) sets out relevant tax fraud acts, with subsection (3) prohibiting "knowingly suppl[ying] or submit[ting] materially false or fraudulent information in connection with any [tax] return, audit, investigation, or proceeding." The tax fraud includes four elements: (1) a tax document filed, submitted or supplied; (2) falsity; (3) materiality; and (4) intent (willfulness). Any person who commits a tax fraud act, including under 1801(a)(3), is guilty, at a minimum, of criminal tax fraud in the fifth degree, a Class A misdemeanor crime under Section 1802, where the tax liability is less than $3,000. No additional mens rea is required, such as an intent to evade taxes or defraud the state. In this case, the primary alleged tax violation was Cohen falsely declaring the reimbursement as income, which artificially increased his tax liability. As Justice Merchan already found, however, an allegation of tax fraud where the state "was not financially harmed … and instead would wind up collecting more tax revenue" does not preclude the tax violation from being a predicate act for the first degree falsification of business records.

That explains why it might not matter that Cohen's taxes increased.  It doesn't explain why Trump would be the one charged with tax fraud and not just Cohen.

Trump is not charged with tax fraud. Trump is charged with attempting to conceal Cohen's tax fraud.

As I would read it, Trump didn't falsify records to conceal Cohen's tax fraud; rather, Cohen committed tax fraud to conceal Trump's falsification of records.

An interesting take.
But then why did Trump falsify his business records?

[GeorgiaModerate]

He will claim that he didn't really think about it.

Unless that's going to be under oath it doesn't matter to the case in the courtroom what he will claim. And it doesn't matter to me personally what he will claim because I don't believe anything he says.

Bottom line, it appears to me he will have to testify and be very convincing at that.

I think the chances of Trump testifying in any of his trials are extremely low.

[Badger]

It's very refreshing to see a judge put up with none of Trump and his team's nonsense.

[Badger]

Whatever it is, it is not election interference, because the election was over by the time Trump falsified his business records.

It doesn't matter. The payoff and silencing occurred before the election, when it could have made a difference in the election, and he presumably was planning at that time to later cover it up by falsifying his business records. It's an election interference case.

That is not a valid argument. The payoff and silencing are not crimes.

I realize you have spent months trying vainly to defend and minimize Trump's actions here against all evidence to the contrary, but did you not read Bruce Joel's post at the bottom of the preceding page directly quoting the statute? Serious question. I suggest you review it and reconsider your response.

[Ljube]

Whatever it is, it is not election interference, because the election was over by the time Trump falsified his business records.

It doesn't matter. The payoff and silencing occurred before the election, when it could have made a difference in the election, and he presumably was planning at that time to later cover it up by falsifying his business records. It's an election interference case.

That is not a valid argument. The payoff and silencing are not crimes.

I realize you have spent months trying vainly to defend and minimize Trump's actions here against all evidence to the contrary, but did you not read Bruce Joel's post at the bottom of the preceding page directly quoting the statute? Serious question. I suggest you review it and reconsider your response.

I read everything and explained it in one of my following posts.
In order for this theory to be viable, the prosecution needs to prove that there was a conspiracy before the fact and that is going to be much more difficult than proving a cover up after the fact, which is straightforward.

[wbrocks67]

Ignoring the gag order once again.

https://twitter.com/maggieNYT/status/1773454910941512133

[Ljube]

Ignoring the gag order once again.

https://twitter.com/maggieNYT/status/1773454910941512133

Now, let's discuss this.
What kind of a legal strategy is this?
You depend on the goodwill of this judge for various rulings during the trial, and if convicted for the sentence.
Why would you want to irritate him?

Could this be Trump's attempt to provoke the judge and thus increase his chances for change of venue?

[emailking]

I believe the daughter isn't actually covered by the gag order. Which is why he's only attacking the judge and her now.

[Hindsight was 2020]

He wants to bait the judge into saying something that could cause change of venue or even a mistrial

[Badger]

Whatever it is, it is not election interference, because the election was over by the time Trump falsified his business records.

It doesn't matter. The payoff and silencing occurred before the election, when it could have made a difference in the election, and he presumably was planning at that time to later cover it up by falsifying his business records. It's an election interference case.

That is not a valid argument. The payoff and silencing are not crimes.

I realize you have spent months trying vainly to defend and minimize Trump's actions here against all evidence to the contrary, but did you not read Bruce Joel's post at the bottom of the preceding page directly quoting the statute? Serious question. I suggest you review it and reconsider your response.

I read everything and explained it in one of my following posts.
In order for this theory to be viable, the prosecution needs to prove that there was a conspiracy before the fact and that is going to be much more difficult than proving a cover up after the fact, which is straightforward.

Kindly specify where Within either the relevant statutes or New York case law there is support for that claim.

[Fmr. Gov. NickG]

If the DA believes Trump committed election interference under NY state law, why isn't he charged with election interference in the indictment?

[emailking]

If the DA believes Trump committed election interference under NY state law, why isn't he charged with election interference in the indictment?

The DA may not believe he committed election interference under NY state law. The DA may believe he committed election interference under NY state law but may think there is not proof beyond a reasonable doubt that he did. The DA may believe he committed election interference under NY state law and think there is proof beyond a reasonable doubt that he did but may think a jury will not be convinced that there is proof beyond a reasonable doubt that he did. The DA may believe he committed election interference but is using his prosecutorial discretion to charge what he believes is his strongest case so as not to overcharge. It's probably 1 of those.