Before indicting a case, prosecutors prepare a prosecution memo (or “pros memo”) that lays out admissible evidence, possible charges, and legal issues. This document provides a basis for prosecutors and their supervisors to assess whether the case meets the standard set forth in the Federal Principles of Prosecution, which permit prosecution only when there is sufficient evidence to obtain and sustain a conviction. Before a decision is made about bringing charges against Trump (and co-conspirators, if any), prosecutors will prepare such a memo.

There is sufficient evidence to obtain and sustain a conviction here, if the information gleaned from government filings and statements and voluminous public reporting is accurate. Indeed, the DOJ is likely now, or shortly will be, internally circulating a pros memo of its own saying so. That DOJ memo will, however, be highly confidential, in part because it will contain information derived through the grand jury and attorney work product. Since it will not be publicly available, we offer this analysis. Ours is likely more detailed than what DOJ will prepare internally for explanatory purposes. But, given the gravity of the issues here, our memo provides a sense of how prosecutors will assemble and evaluate the considerations that they must assess before making a prosecution decision.

Our memo analyzes six federal crimes in depth:

Mishandling of Government Documents
1. Retention of National Defense Information (18 U.S.C. § 793(e))
2. Concealing Government Records (18 U.S.C. § 2071)
3. Conversion of Government Property (18 U.S.C. § 641)

Obstruction, Contempt, False Information

1. Obstruction of Justice (18 U.S.C. § 1519)
2. Criminal Contempt (18 U.S.C. § 402)
3. False Statements to Federal Investigators (18 U.S.C. § 1001)

In the course of discussing these statutes, we also touch upon others that may have been violated but where the factual predicate for applicability is less clear. For instance, additional charges could be appropriate–under 18 U.S.C. §§ 798 and 793(e) (dissemination)–if the public reporting regarding Trump’s having intentionally disseminated classified material to aides and others is accurate. Additional charges could also potentially be brought under 18 U.S.C. § 1924 if there is sufficient evidence that Trump unlawfully removed classified documents from the White House (see our discussion of DOJ precedents for past prosecutions under § 1924 in Part IV and in the Appendix). Based on the publicly available information to date, a powerful case exists for charging Trump under several federal criminal statutes, which we discuss in detail.

Methodology

In considering prosecution of a former president, we begin with the standard articulated by Attorney General Merrick Garland: “upholding the rule of law means applying the law evenly, without fear or favor.”^[1] In other words, this case must be evaluated for prosecution like any other case with similar evidence would be, without regard to the fact that the case is focused on the conduct of a former president of the United States. This memo accordingly includes a balanced assessment of this particular case, and a thorough review of past DOJ precedents for charging similar cases. Those past cases show that to decline to bring charges against Trump would be treating him far more favorably than other defendants, including those who were charged for less egregious conduct than his. “All Americans are entitled to the evenhanded application of the law,”^[2] Garland has stated, and we are guided by the values underlying those words as well.

This model prosecution memo is, however, limited in an important sense. Throughout the memo, we draw as much as possible on the unusual amount of factual information provided by the Government in its court filings. We do not, however, have visibility into the full volume of information the Justice Department has assembled. That means we could be missing important facts, including exculpatory evidence, that may inform the DOJ’s decision-making process. We may be unaware of admissibility issues with some of the evidence. And equally true, the evidence could be better or more extensive than what is available in the public record.

What’s more, by necessity, we at times rely on news reports from investigative journalists whereas the actual prosecution memo would instead rely on direct evidence the federal investigators have collected. For that reason, we do not reach an unqualified charging decision. Instead, we conclude that there is sufficient evidence to obtain a conviction here, if the Government filings and statements and voluminous public reporting we detail below are accurate. We also note that, based on the reported facts, charges would be strongly warranted based on Department precedent in similar cases.^[3]

The model prosecution memorandum is available below as a SCRIBD file and also as a separate PDF.

Also, to hear more about the memo from some of its co-authors check out the Just Security podcast. A conversation with Andrew Weissmann, Joyce Vance, and Ryan Goodman.

Model Prosecution Memo – Trump Classified Documents Second Edition June 2023 by Just Security on Scribd

– – – – – – –

^[1] Department of Justice, Attorney General Merrick Garland Delivers Remarks (Aug. 11, 2022), https://www.justice.gov/opa/speech/attorney-general-merrick-garland-delivers-remarks.

^[2] Id.

^[3] Two of the authors of this model prosecution memo, Norman Eisen and Fred Wertheimer, were among the counsel for amici supporting DOJ’s position in litigation before the U.S. District Court for the Southern District of Florida, and the U.S. Court of Appeals for the Eleventh Circuit, related to the criminal investigation mentioned in this report. For more information, see https://democracy21.org/category/news-press/press-releases.

 Photo credit: Coolcaesar from Wikimedia Commons

The post Model Prosecution Memo for Trump Classified Documents appeared first on Just Security.

Just last month, a former President Donald Trump was arraigned on an indictment for thirty-four felony false books and records charges in New York. Because those charges are felonies, Manhattan District Attorney Alvin Bragg is required to prove that the falsifications were made with the intent “to commit…aid or conceal” another crime. As expected, Bragg pointed to federal and state campaign finance violations as those possible other crimes.

But a surprise came when Bragg also suggested that tax violations may serve as a basis for this felony “bump-up.” His statement of facts declared that “The participants also took steps that mischaracterized, for tax purposes, the true nature of the payments made in furtherance of the scheme.”

Now that suggestion has been confirmed in his response on May 16 to Trump’s request for a bill of particulars: tax crimes are among the possible crimes Bragg will pursue as a predicate to bump up the charges against the former president.

Commentators have noted the potential power of the tax allegations to help Bragg bolster his case. But, the exact contours of the possible tax crimes were not clear—even with Bragg’s response to Trump’s request for a bill of particulars in hand. In this essay, we assess what potential tax-related crimes may be implicated by Trump’s alleged mischaracterization of the payments. While the campaign finance bases for the charges may well be sufficient, adding tax bases is important and offers advantages for the prosecutors. Tax-related charges could sidestep potential legal challenges related to campaign finance violations including, for example, issues of federal preemption and state statutory interpretation.

As we explain below, Bragg was wise to strengthen the case by also predicating the felony charges against Trump based on his intent to commit (or aid or conceal) crimes involving false statements to tax authorities. Perhaps the strongest case would involve statements to tax authorities falsely characterizing the payments to Michael Cohen as “legal fees,” rather than the payments’ true nature: a series of simple reimbursements for a hush money payment. Doing so caused the payments to be treated as income to Cohen, which in turn precipitated a tax gross-up so that Cohen would be relieved of any tax burden associated with the mischaracterization.Note that the DA would not have to prove that the tax crimes were actually committed, just that the parties intended them and falsified the business records with that initial intention. We explain these theories of the case below. We describe the law governing offenses involving false statements to tax authorities regardless of whether a defendant’s conduct includes an underpayment or other form of evasion of taxes.

We offer this preliminary assessment based on both Bragg’s response to Trump’s request for a bill of particulars and previously available public information. Additional information is likely to develop as the case progresses. We note below where further information would be helpful before reaching any firm conclusion on a matter.

Factual and Procedural Background

The main facts of the case have been known for some time (and are detailed and periodically updated in a Just Security chronology).

On April 4, 2023, former president Donald Trump was arraigned and pleaded not guilty in New York State Supreme Court to state felony charges that he “repeatedly and fraudulently falsified New York business records to conceal crimes that hid damaging information from the voting public during the 2016 presidential election.”

The indictment and its accompanying “statement of facts” accuse Trump of orchestrating a “catch and kill” scheme with his fixer Michael Cohen, American Media, Inc. (AMI)’s former CEO David Pecker, and others to influence the election by “identifying and purchasing negative information” about Trump “to suppress its publication and benefit” his “electoral prospects.”

DA Bragg alleges that, in October 2016, Trump had attorney Michael Cohen pay adult film actress Stormy Daniels (whose real name is Stephanie Clifford) a $130,000 payment to prevent her from publicizing an alleged sexual encounter she had with Trump. To conceal the hush money payment, it was agreed that Cohen would make the payment to Daniels via a shell company (Essential Consultants), on the agreement that Trump would later reimburse Cohen.

In 2017 Cohen was reimbursed, in eleven almost-monthly installments. The invoices Cohen submitted each stated that it was “pursuant to [a] retainer agreement” and each sought “payment for services rendered” for the relevant month of the invoice.

Some reimbursement payments were made from the Donald J. Trump Revocable Trust and others from Trump’s personal bank account. While the Trump Organization likely did not label the payments as “income” in its records, the inevitable corollary of characterizing them as legal fees was to cause the payments to be treated as “income” on Cohen’s tax returns. According to Bragg, the $130,000 payment was added “to a $50,000 payment for another expense for which” Cohen “also claimed reimbursement, for a total of $180,000.” That amount was to $360,000 so that Cohen “could characterize the payment as income on his tax returns, instead of a reimbursement,” and so that Cohen “would be left with $180,000 after paying approximately 50% in income taxes.” “An additional $60,000” was added “as a supplemental year-end bonus.” Together, these amounts totaled $420,000. These allegations are consistent with the Department of Justice’s court filings in Cohen’s federal criminal case.

The Manhattan DA’s indictment alleges that the Trump Organization’s business and organizational records included a series of invoices and ledger entries recording the arrangement, characterizing the 11 payments as legal fees for Cohen’s services. These entries form the basis of the 34 books and records counts.

DA Office Statements About the Tax Scheme

The district attorney’s office has made the following statements in relation to tax violations.

• “The participants also took steps that mischaracterized, for tax purposes, the true nature of the payments made in furtherance of the scheme.” Statement of facts, § 2 (emphasis added)
• Bragg: “Participants in the scheme took steps that mischaracterized, for tax purposes, the true nature of the reimbursements.” Press Release.
• Bragg: “In order to get Michael Cohen his money back, they planned one last false statement. In order to complete the scheme, they planned to mischaracterize the payments to Mr. Cohen as income to the New York State tax authorities.” Press Conference (emphasis added).
• Bragg: “We have charged falsifying business records for those who were seeking to cover up sex crimes and we have brought this charge for those who committed tax violations.” Press Conference.
• Assistant District Attorney Christopher Conroy: “After the election, defendant reimbursed the lawyer through a series of disguised monthly payments that hid the true nature of the payoff by causing a series of false business records in the records of the Trump Organization here in Manhattan, and even mischaracterized for tax purposes the true nature of the payment. Defendant falsified these New York business records with the intent to defraud, including the intent tocommit[sic] another crime, and to aid and conceal the commission of another crime.” Arraignment hearing (emphasis added).
• DA Office: “[T]he People further refer defendant to certain facts, among others, set forth in the Statement of Facts relating to … disguising reimbursement payments by doubling them and falsely characterizing them as income for tax reasons Court filing in response to defendant’s request for bill of particulars.

The SDNY’s Criminal Information and Sentencing Memorandum in Cohen’s case also discussed the reimbursement being “‘grossed up’ for tax purposes.”

It is worth noting that in his press conference Bragg also cited false statements to tax authorities as one of the “unlawful means” needed to prove a violation of New York Election Law, § 17-152: conspiracy to promote or prevent election. “I further indicated a number of unlawful means, including more additional false statements, including statements that were planned to be made to tax authorities.”

Bragg’s Response to Trump’s Request for Bill of Particulars

On April 27, Trump filed a Request for a Bill of Particulars seeking information concerning the other crime(s) Trump is “alleged to have committed or intended to commit or to aid or conceal the commission thereof by means of the allegedly false business record.”

Now, Bragg has responded, stating that “the crimes defendant intended to commit or to aid or conceal may include violations of … New York Tax Law §§ 1801(a)(3) and 1802,” in addition to various state and federal election crimes as well as other violations of the falsifying books and records statute. Notably, Bragg declined to state that the list of crimes included in his response as exclusive—suggesting that other crimes, including other state and federal tax crimes as described below, could also later be added to bolster the prosecution’s case.

Applicable Law

Because Bragg’s response to the request for a bill of particulars leaves open the door that other offenses than those listed might also serve as the “bump-up” predicates to the falsifying business records charges, in addition to New York state tax statutes, we also consider the possibility that prosecutors will attempt to leverage federal tax offenses for this purpose. Two statutes appear most relevant: Declaration under Penalties of Perjury (26 U.S.C. 7206(1)), and Willful Assistance in Preparation of False or Fraudulent Tax Documents (26 U.S.C. 7206(2)).

While New York State tax law is distinct from federal tax law, the two bodies of law, especially in respect of false filing statutes, share similar principles and concepts. As a result, New York State courts often look to federal law for guidance in interpreting and applying state provisions. See, e.g., People v. Essner, 124 Misc. 2d 830, 835-36 (N.Y. Sup. Ct. 1984) (court looked to federal securities laws for the applicable definition of materiality under § 175.45, issuing a false financial statement); State v. Rachmani, 71 N.Y.2d 718, 725-26 (1988) (for New York’s Martin Act, the court adopted the standard for materiality used by federal courts). Accordingly, we analyze the elements of potential charges under New York Tax Law §§ 1801(a)(3) and 1802 with reference mainly to federal law as well as state law (where available).

The two federal statutes are in many ways similar. Section 7206(1) focuses on those who cause false statements in their own tax documents—thus inclusion by Bragg of this statute would focus on Cohen’s criminal conduct of including false statements in his tax returns, which Trump sought to aid or conceal. Conversely, § 7206(2) criminalizes those who cause, assist or aid false statements in others’ tax documents—thus Bragg’s focus here would be on Trump’s intent to assist Cohen in making false statements in his tax returns.

Given their similarities, we discuss all four statutes together (the two state and the two federal tax offenses). First, we set out the elements of each offense, which are very similar. We then address the elements as follows: falsity, materiality, and intent.

Additionally, a variety of other statutes may be applicable depending on how the facts develop, and, by way of example, we also include a brief treatment of Conspiracy to Defraud the United States (18 U.S.C. 371) on the federal side, and on the state side, Offering a False instrument for Filing in the First Degree (N.Y. Penal Law, § 175.35) or Second Degree (N.Y. Penal Law, § 175.30).

Elements of the Offenses

1. New York Criminal Tax Fraud (New York Tax Law, Chapter 60, Article 37, Part 2)

New York Tax Law § 1801(a) defines a “tax fraud act” and is the basis of all New York criminal tax fraud offenses. For Bragg’s case, under § 1801, if a person willfully acts (or causes another to act) in any of the following ways, that person has perpetrated a tax fraud act:

1. knowing that a return, report, statement or other document under this chapter contains any materially false or fraudulent information, or omits any material information, files or submits that return, report, statement or document with the state or any political subdivision of the state, or with any public office or public officer of the state or any political subdivision of the state (§ 1801(a)(2))

2. knowingly supplies or submits materially false or fraudulent information in connection with any return, audit, investigation, or proceeding or fails to supply information within the time required by or under the provisions of this chapter or any regulation promulgated under this chapter (§ 1801(a)(3))

3. engages in any scheme to defraud the state or a political subdivision of the state or a government instrumentality within the state by false or fraudulent pretenses, representations or promises as to any material matter, in connection with any tax imposed under this chapter or any matter under this chapter (§ 1801(a)(4))(emphasis added)

All three of the above tax fraud acts include three elements: (1) falsity; (2) materiality; and (3) intent (willfulness). The first two provisions also require the tax document to be filed, submitted or supplied. The last provision, by its clear wording, also requires an intent to defraud the state.

Any person who commits any tax fraud act listed above is guilty, at minimum, of criminal tax fraud in the fifth degree, a Class A misdemeanor crime under § 1802. No additional mens rea is required. A misdemeanor is sufficient to serve as the predicate to make falsifying business records a felony. For felony criminal tax fraud in the first to fourth degrees under §§1803-1806, there are additional elements:

1. an intent to evade tax or defraud New York state (such intent to defraud is, as noted above, also required for 1801(a)(4) in the fifth degree); in
2. a payment to the state (whether by means of underpayment or receipt of refund or both) in a tax year; and
3. of a stated amount (the amount determining the degree of the offense).

2. Declaration under Penalties of Perjury (26 U.S.C. 7206(1))

It is a felony under § 7206(1) for any person who “[w]illfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter.”

The elements of a Section 7206(1) conviction have been addressed at length by the case law. See e.g., United States v. Bishop, 412 U.S. 346, 350 (1973); United States v. Pirro, 212 F.3d 86, 89 (2d Cir. 2000); United States v. Clayton, 506 F.3d 405, 410, 413 (5th Cir. 2007) (per curiam). Those elements are:

1. The defendant made and subscribed a return, statement, or other document which was false as to a material matter;
2. The return, statement, or other document contained a written declaration that it was made under the penalties of perjury;
3. The defendant did not believe the return, statement, or other document to be true and correct as to every material matter; and
4. The defendant falsely subscribed to the return, statement, or other document willfully, with the specific intent to violate the law.

3. Willful Assistance in Preparation of False or Fraudulent Tax Documents (26 U.S.C. 7206(2))

Under § 7206(2), it is a felony for any person who “[w]illfully aids or assists in, or procures, counsels, or advises the preparation or presentation under, or in connection with any matter arising under, the internal revenue laws, of a return, affidavit, claim, or other document, which is fraudulent or is false as to any material matter, whether or not such falsity or fraud is with the knowledge or consent of the person authorized or required to present such return, affidavit, claim, or document.”

Although § 7206(2) appears calculated to apply primarily to official tax preparers, the statute has been used to prosecute criminal behavior far beyond that group of professionals (see e.g., 43 A.L.R. Fed. 128 (Originally published in 1979), §§ 10-13). It has been used to prosecute participants in any scheme which causes false statements to be made in others’ tax documents, whether or not the accused actually prepared the return. See e.g., United States v. Clark, 577 F.3d 273, 285 (5th Cir. 2009) (The statute “reaches all knowing participants in the fraud.”); United States v. Crum, 529 F.2d 1380, 1382 (9th Cir. 1976) (“The nub of the matter is that they aided and abetted if they consciously were parties to the concealment of [a taxable business] interest.”); United States v. Siegel, 472 F.Supp. 440, 444 (N.D.Ill.1979) (citing Crum, 529 F.2d 1380) (“[T]he scope of the statute extends to all participants of a scheme which results in the filing of a false return, whether or not those parties actually prepare it.”); United States v. Graham, 758 F.2d 879, 885 (3d Cir.1985) (1985) (quoting United States v. Buttorff, 572 F.2d 619, 623 (8th Cir.) (“[T]here must exist some affirmative participation which at least encourages the perpetrator.”); United States v. HooksUnited States v. Hook, 848 F.2d 785, 791, n.3 (7th Cir. 1988) (citing cases that found liability because of the defendant’s concealing actions); United States v. Hastings, 949 F.2d 400 (9th Cir. 1991) (preparing false corporate financial statements that served as the basis for preparing the corporation’s tax return); United States v. Aracri, 968 F.2d 1512 (2d Cir. 1992) (creating false invoices and shell companies used to prepare false excise tax returns); United States v. Foley, 73 F.3d 484, 493 (2d Cir. 1996) (a state legislator, accepted financial bribes from political contributors in exchange for agreeing to influence legislation and provided those contributors with fraudulent receipts to help disguise their payments as genuine business expenses). See also, IRS Tax Crimes Handbook (2009), pp.72-3; Justice Department, Criminal Tax Manual, Chapter 13, pp.5-8; Federal Tax Coordinator (2nd Ed.), ¶ V-3115.

The elements of a prosecution under Section 7206(2) are also clear and settled. See e.g., United States v. Perez, 565 F.2d 1227, 1233–34 (2d Cir. 1977); United States v. Klausner, 80 F.3d 55, 59 (2d Cir. 1996); United States v. Salerno, 902 F.2d 1429, 1432 (9th Cir. 1990); IRS Tax Crimes Handbook (2009), pp.71-2. Those elements are:

1. The defendant aided or assisted in, or procured, counseled, or advised the preparation or presentation of a return, affidavit, claim, or other document which involved a matter arising under the Internal Revenue laws;
2. The return, affidavit, claim, or other document was fraudulent or false as to a material matter; and
3. The defendant acted willfully.

Unlike with § 7206(1), under § 7206(2) there is no requirement that the document be signed under penalty of perjury. Id.

Although a plain reading of both § 7206(1) and § 7206(2) does not include a filing requirement, some courts have held that the return or statement must be filed. See e.g., United States v. Dahlstrom, 713 F.2d 1423, 1429 (9th Cir. 1983) (filing of a return is a necessary element of § 7206(2)); United States v. Boitano, 796 F.3d 1160 (9th Cir. 2015) (confirming a filing requirement under § 7206(1)); (United States v. Harvey, 869 F.2d 1439, 1448 (11th Cir. 1989) (en banc) (same). Cf. United States v. Feaster, 843 F.2d 1392 (6th Cir. 1988) (per curiam) (holding Dahlstrom as contrary to the plain reading of § 7206(2)). See also, Justice Department, Criminal Tax Manual, Chapter 13, p.2.

First Key Issue: Falsity. Bragg may argue that the representations made in Cohen’s tax returns were false statements and were false in at least two ways:(1) the mischaracterization of the funds as payment for legal services, and (2) the resulting treatment of the payments “income.”

a. False statement as to the mischaracterization of the funds as payment for legal services

According to Bragg, each of the eleven checks made out to Cohen was “issued for a phony purpose.” The checks, which were in fact simple repayments, were “illegally disguised” as payment for legal services rendered in 2017 pursuant to a “non-existent retainer agreement.” Cohen’s plea agreement said the same: “there was no such retainer agreement, and the monthly invoices COHEN submitted were not in connection with any legal services he had provided in 2017.” See also Department of Justice Sentencing Memorandum for Michael Cohen (“In fact, no such retainer agreement existed and these payments were not ‘legal expenses’ – Cohen in fact provided negligible legal services to Individual-1 or the Company in 2017 – but were reimbursement payments.”).

Trump “could not simply say that the payments were a reimbursement for Mr. Cohen’s payments to Stormy Daniels,” Bragg said during the press conference. “To do so, to make that true statement, would have been to admit a crime. So instead, Mr. Trump said that he was paying Mr. Cohen for fictitious legal services in 2017 to cover up an actual crime committed the prior year.”

b. False statement of “income”

By characterizing the reimbursement payments to Cohen as legal fees, the Trump Organization necessarily caused Cohen to report the amount as income, subject to tax on Cohen’s return. But, the repayment to Cohen of the funds paid to Daniels would simply not be regarded for tax purposes as “income.” The payment was a straight dollar-for-dollar reimbursement of a purely personal expense (whether related to Trump’s marriage or to his campaign).

It was therefore false for Cohen to then tell tax authorities that he received the $130,000 in “income.” Similarly, the Trump Organization was therefore not required to report the full $420,000 worth of payments to Cohen on Cohen’s Form W-2, as reimbursements are not “income” to be included on such a form.

However, an argument could be made that both the $130,000 reimbursement amount and the equal $130,000 “bump up” paid to cover Cohen’s taxes were income to Trump, as they represented payments by the Trump Organization for personal expenses of Trump. Such a payment is frequently referred to as a “constructive dividend,” where a business owner causes the business to pay for personal expenses. Here, it is unclear how the Donald J. Trump Revocable Trust and Trump’s personal account, the issuers of the checks, are integrated into the Trump Organization’s accounting system and tax reporting. Whether or not a payment is a dividend depends on whether the Trump Organization had earnings and profits, a matter we’re fairly certain is entirely too complicated to delve into for the purposes of Bragg’s criminal case. See e.g., Boulware v. United States, 552 U.S. 421 (2008). Moreover, it would likely also require analysis of Trump’s personal income tax returns – another quagmire.

But it’s even more likely that none of this really matters from a criminal prosecution perspective, since all of these issues arise from the same false statement: that the payments to Cohen were for legal services. In prosecuting a criminal case, simplicity is usually better; the focus is on the false statement itself, not its technical tax consequences.

Second Key Issue: Materiality. If Cohen erroneously claimed the repayments as part of his income in submitting tax returns, he would have effectively overstated his income, thus triggering an overpayment of tax. How, then, could Cohen’s tax returns form the basis of a tax violation? Indeed, some may argue that the statement was not material if it did not cause any financial loss. But the law does not require such a loss. It is a crime to submit intentionally false statements to tax authorities, even if the statement does not involve evasion of tax.

a. Materiality under federal tax law

We have not identified any New York tax case interpreting the meaning of materiality under state law. Accordingly, as noted above, we first look to federal law for guidance. In contrast to the crime of tax evasion, federal false statement tax statutes generally do not require proof of a tax deficiency, i.e. a difference between what was reported and the taxpayer’s correct tax liability. See e.g., United States v. Tsanas, 572 F.2d 340, 343 (2d Cir. 1978) (regarding § 7206(1)); Edwards v. United States, 375 F.2d 862 (9th Cir. 1967) (§ 7206(2) is directed not to evasion or defeat of tax but rather to falsification and counseling and procuring of deception as to any material matter); IRS Tax Crimes Handbook (2009), p.72 (regarding § 7206(2)); Justice Department, Criminal Tax Manual, Chapter 13, pp.12-14 (regarding § 7206(2)). Thus, a defendant may be convicted even where a tax refund is due. See e.g., United States vs. Witasick, W.D. Va., No. 4:07-CR-00030-001, 15-16 (Apr. 7, 2014).

What prosecutors must instead prove is whether the statements made were false as to a “material” matter. This is a question for the jury to decide. See e.g., Neder v. United States, 527 U.S. 1, 4 (1999); United States v. Jackson, 196 F.3d 383, 384-85 (2d Cir. 1999) (reaffirming Neder); United States v. Gaudin, 515 U.S. 506, 522-23 (1995) (holding that “materiality” is a question for the jury in prosecutions for false statements under 18 U.S.C. § 1001). It’s worth noting, as the Justice Department has in Chapter 12 of Criminal Tax Manual on § 7206(1), that “[w]hile courts still maintain that proof of a tax deficiency is not required in a section 7206(1) prosecution, … some post-Gaudin opinions indicate that the presence or lack of a tax deficiency may be relevant to a jury’s determination of materiality.”

The three questions Bragg will therefore need to consider are: (1) what “material” means; (2) is the nature of a payment considered material; and (3) does overreporting or overstating income negate materiality. One of the leading authorities on all three questions is United States v. DiVarco, 484 F.2d 670 (7th Cir. 1973), aff’g, 343 F. Supp. 101, (N.D. Ill. 1972).

Under the DiVarco definition—adopted by most circuits, including the U.S. Court of Appeals for the Second Circuit—a false statement is “material” if it has a natural tendency to influence or impede the IRS in ascertaining the correctness of reported tax or in verifying or auditing the returns of taxpayers. See, United States v. Bok, 156 F.3d 157, 164-65 (2d Cir. 1998) (regarding § 7206(1)); Neder, 527 U.S. at 16 (adopting for § 7206(1) the definition of materiality in Gaudin, 515 U.S. at 522-23 regarding 18 U.S.C. § 1001: “a natural tendency to influence, or [is] capable of influencing, the decision of the decisionmaking body to which it was addressed”); United States v. Klausner, 80 F.3d 55, 60, n.4 (2d Cir. 1996) (regarding § 7206(2)); United States v. Potstada, 206 F. Supp. 792, 794 (N.D. Cal. 1962) (Under § 7206(2) “it is sufficient to allege and prove obstruction, delay or impairment of governmental functions.”).

Importantly, the statement needs to have only the “potential” for influencing or impeding the IRS. United States v. Greenberg, 735 F.2d 29, 31 (2d Cir. 1984) (“The question is rather whether the statement had the potential for an obstructive or inhibitive effect. A consideration of this potential requires an analysis of the responsibilities of the public agency — responsibilities that are assigned by law — and analysis of the relevance of the statement to those responsibilities.”); United States v. Pirro, 212 F.3d 86, 89 (2d Cir. 2000); United States v. Moon, 532 F.Supp. 1360, 1366-67 (S.D.N.Y. 1982), aff’d, 718 F.2d 1210 (2d Cir. 1983)

Prosecutors in the DiVarco case proved that income reported by the defendant on his personal tax returns as commissions from a mortgage and investment business did not come from that business. The defendant had mischaracterized the source of his taxable income. (Note, there was no dispute in DiVarco as to whether the claimed income was, in fact, taxable income, just whether the source of the taxable income was mischaracterized). The court confirmed that “source of income” is to be considered a “material matter” for tax purposes, such that willfully and knowingly stating a false source of income on tax documents is prohibited under § 7206(1)—even in the rarer cases involving an overstatement of taxable income.

It is true … that most, if not all, of the cases involving misstatement of source of income also involved an understatement of taxable income. However, “[o]ne of the more basic tenets running through all the cases is that the purpose behind the statute is to prosecute those who intentionally falsify their tax returns regardless of the precise ultimate effect that such falsification may have.” 343 F.Supp. at 103.

… The plain language of the statute does not exclude the matter of the source of income from the definition of “material matter.” In light of the need for accurate information concerning the source of income so that the Internal Revenue Service can police and verify the reporting of individuals and corporations, a misstatement as to the source of income is a material matter.

DiVarco, 484 F.2d 670, 673 (emphasis added)

The purpose of the statute is, therefore, “not simply to ensure that the taxpayer pay the proper amount of taxes — though that is surely one of its goals.” Instead, the statute “is intended to ensure also that the taxpayer not make misstatements that could hinder” the IRS “in carrying out such functions as the verification of the accuracy of that return or a related tax return.” United States v. Greenberg, 735 F.2d 29, 31 (2d Cir. 1984). New York district courts of the Second Circuit have similarly held that merely mischaracterizing the source of an income or other matter on tax documents will be considered material. United States v. Goldman, 439 F. Supp. 337, 344 (S.D.N.Y. 1977); United States v. Kaczowski, 882 F. Supp. 304 (W.D.N.Y. 1994); Moon, 532 F.Supp. 1360 (misstating source of income on personal tax returns); United States v. Cole, 463 F. 2d 163 (2d Cir. 1972) (related to the mischaracterization of personal legal bills as business expenses); see also United States v. Helmsley, 941 F.2d 71, 93 (2d Cir. 1991) (The district court’s instruction that Section 7206(2) would be violated even if the deductions were allowable but mischaracterized was hardly complex. The alleged offense involved a single predicate act: entering a false statement on a tax form.”). See also, United States v. Mirelez, 496 F.2d 915 (5th Cir. 1974) (through fear of self-incrimination, taxpayer failed to report true source of income as illegal heroin sales); United States v. Diamond, 788 F.2d 1025 (4th Cir. 1986) (falsely listing losses from commodities transactions on Schedule C of Form 1040 as being from a trade or business and misstated occupation to conceal the source of losses).

Cases involving overstatement of income

The bottom line is that Bragg can establish materiality if he can show that Trump intended Cohen to report repayment of expenses or illicit campaign contributions as income, and so to overstate that line on his tax returns. Although unusual, there have been a number of prosecutions involving overstated income.

For instance, in 1975 former New York City Cultural Affairs Commissioner Irving Goldman was indicted by New York federal prosecutors for, among other things, filing false corporation returns on behalf of a shell company he created, Jola Candy Inc., in that the returns falsely stated gross income by including payments received for goods it had charged at unnecessarily “inflated and excessive prices.” In an attempt to have the indictment dismissed, Goldman argued that, as Jola’s returns included an “overstatement of income” which resulted in an “overpayment of taxes,” the materiality element under was not made out. The Court rejected the argument, citing DiVarco.

[T]he cited authorities do suggest that a statement is material if it is capable of influencing actions of the IRS in any matter within its jurisdiction. The question then is whether overstatement of income is a material matter. The accuracy of items of taxable income reported on the return of one individual or entity may affect the ability of the IRS to assess the tax liability of another taxpayer. Furthermore, overstated income may shield from scrutiny falsely inflated deductions. Thus, an overstatement of income impairs the ability of the IRS to determine if the correct amount of tax has been paid. United States v. DiVarco, 343 F.Supp. at 103. The conclusion that an overstatement of income may result in a prosecution is buttressed by the Congressional determination to make Section 7206(1) a crime separate and apart from income tax evasion, 26 U.S.C. § 7201.

United States v. Goldman, 439 F. Supp. 337, 342 (S.D.N.Y. 1977) (emphasis added)

In United States v. Barrow, the defendant underreported income on his personal tax returns and overreported income on an amended corporate return. The Sixth Circuit held that both underreporting and overreporting were material. “Under this section, false statements are material if they make it more difficult for the IRS to verify defendant’s tax returns.” United States v. Barrow, 118 F.3d 482, 493-94 (6th Cir. 1997).

Another example is United States v. Lamberti, in which the defendant, a parolee, was accused of overstating his hours of work and income on tax returns in order to trick his parole officer into believing that he had worked the minimum hours required under his parole conditions. United States v. Lamberti, 847 F.2d 1531 (11th Cir. 1988). The Eleventh Circuit held that the overstatement of income to the Parole Commission was material for the purposes of false statements under § 18 U.S.C. 1001, and, in respect of the federal tax statute, made its position clear: “As to the completely independent § 7206(1) tax charges, his assertion hinges on his untenable theory that an overstatement of income cannot be a material false statement for purposes of 26 U.S.C. § 7206(1), because it can lead only to overestimation and overpayment of tax liability.” Id. at 1536. As the indictment “did not rest solely upon” overstatements, but instead rested “primarily” upon false statements claiming that he had only one source of income, the court held it unnecessary to consider further Lamberti’s contention that an overstatement of income cannot violate § 7206(1). Id.

In United States v. Bouzanis, one of the defendants was accused of “aiding, counseling and causing the preparation and presentation of a false and fraudulent tax return” belonging to a co-defendant, in that the return included false, inflated income, which was submitted in support of a loan application. The Illinois district court, citing Divarco and the Second Circuit decision in Greenberg, rejected the defendant’s argument that overstated income was not “material.” United States v. Bouzanis, 00 CR 1065, 2003 WL 920717, at *2 (N.D. Ill. Mar. 7, 2003).

Another case involving inflated income is United States v. Barshov, where the defendants, who had formed limited partnerships to purchase motion picture films for distribution and exhibition, inflated the purchase prices and the income generated by the films in order to maximize depreciation costs and investment credits, and caused returns to be filed based on the inflated figures. United States v. Barshov, 733 F.2d 842, 845-46 (11th Cir. 1984).

b. Materiality under New York non-tax law

As noted above, our research turned up no New York State criminal cases specifically addressing the concept of “materiality” for the purposes of New York Tax Law. Nevertheless, the general principles of materiality under federal law offer helpful guidance. Given the similarities in wording and purpose between N.Y. Tax Law § 1801(a)(2) and federal § 7206(1) and (2), it is likely that the New York state courts would adopt the federal definition of materiality as set forth in DiVarco.

The case of People v. De Leo, a decision by the Appellate Division of the Supreme Court of New York, Third Department, offers a glimpse into how New York state courts would likely define materiality under false tax filing laws. People v. De Leo, 185 A.D.2d 374, 585 N.Y.S.2d 629 (N.Y. App. Div. 1992). The defendant was convicted of second degree perjury (as well as second degree forgery and attempted grand larceny) for two false statements he made in a real property transfer gains tax affidavit. First, he falsely claimed to be acting in the capacity of attorney-in-fact for the seller of the property. Second, he significantly understated the amount of consideration he received on transfer for his role as purported attorney. The defendant argued on appeal that the false statements were not “material to the action, proceeding or matter involved” within the meaning of the perjury statute (§ 210.10). Rejecting the defendant’s contention and affirming the conviction, the Third Department court stated:

The gravamen of his claim in this regard is that the misstatement of one’s authority to act and the amount of consideration received in a transfer gains tax affidavit are not “material to the action, proceeding or matter involved” within the meaning of Penal Law § 210.10. We disagree. The purpose of the affidavit is to assess the amount of tax due, if any, upon the transfer of realty and to identify those responsible therefor (see, Tax Law art. 31–B). Because calculation of taxes owed is dependent upon the consideration recited in the affidavit, any misrepresentation regarding the consideration is indeed material to the proper assessment of tax. The materiality of a misrepresentation of one’s authority to act on behalf of a purported principal, inasmuch as it has the effect of potentially casting the principal in liability for taxes assessed, cannot be doubted. Upon review, we find the prosecution’s evidence that defendant was not an attorney-in-fact for the Colony at the time he executed the affidavit, combined with evidence that defendant effected the transfer as a means of payment for services rendered to the Colony and for which he had not been paid, thus indicating that the transfer was for consideration in excess of the $1 recited in the affidavit, satisfies both the legal sufficiency and weight of the evidence challenges.

Id. at 375. (emphasis added)

Courts have often said that false tax filing statutes are similar to perjury statutes. See e.g., United States v. Scholl, 166 F.3d 964, 980 (9th Cir. 1999) (describing §7206(1) as a perjury statute); Gaunt v. United States, 184 F.2d 284, 288 (1st Cir. 1950) (“purpose is to impose the penalties for perjury upon those who wilfully falsify their returns regardless of the tax consequences of the falsehood”); United States v. Taylor, 574 F.2d 232, 236 (5th Cir. 1978) (noting that to require the government to prove additional tax liability would “seriously jeopardize the effectiveness of section 7206(1) as a perjury statute and would imperil the self-assessment nature of our tax system”); United States v. Fawaz, 881 F.2d 259, 263 (6th Cir. 1989) (The court saw no reason to frame a different rule in the § 7206(1) context than the one applied under § 1623(a) false statement made to federal grand juries.)

The New York Criminal Jury Instruction for perjury also states that, “[d]epending on the facts of the case, it may be appropriate to adapt the language of materiality utilized by the Court of Appeals in the context of a Grand Jury proceeding; namely, that a false statement is material if it has ‘the natural effect or tendency to impede, influence or dissuade’ the public servant in the performance of his or her official functions in an action, proceeding or matter involved. People v. Davis, 53 N.Y.2d 164, 171 (1981).” (hyperlink added). This language reflects the federal position on false statement statutes, including § 7206.

Third Key Issue: Intent (Willfulness). When it comes to intent, potential criminal liability under New York State tax law is broader than federal tax law.

N.Y. Tax Law defines willfulness as “acting with either intent to defraud, intent to evade the payment of taxes or intent to avoid a requirement of [New York Tax Law], a lawful requirement of the [tax] commissioner or a known legal duty.” Section 1801(c).

Under federal law, willfulness refers to a voluntary, intentional violation of a known legal duty, including the duty to report accurate information on a tax return or other tax related documents. This means that an individual or entity must have acted with a specific intent to provide false or misleading information on their tax documents, and knew or should have known that their conduct was generally unlawful. See e.g., Cheek v. United States, 498 U.S. 192 (1991); United States v. Pomponio, 429 U.S. 10 (1976); United States v. Bishop, 412 U.S. at 412 U. S. 360. Knowledge of the specific statute is not required, so long as the individual knows the information submitted was false.

Willfulness is a question of fact. Direct proof of intent is not necessary, and instead can be inferred from a broad range conduct and evidence (including circumstantial) relating to attempts to conceal or misrepresent income, assets and other material tax matters. United States v. Libous, 645 F. App’x 78, 81 (2d Cir. 2016). The government will often seek to prove willful intent with reference to “affirmative acts” and “acts of commission.” See e.g., United States v. Smith, 206 F.2d 905 (3d Cir. 1953) (discussing U.S. Supreme Court authorities); Maxfield v. United States, 152 F.2d 593 (9th Cir. 1945); Battjes v. United States, 172 F.2d 1, 5 (6th Cir. 1949) (“Direct proof of willful intent is not necessary. It may be inferred from the acts of the parties, and such inference may arise from a combination of acts, although each act standing by itself may seem unimportant. It is a question of fact to be determined from all the circumstances.”); Katz v United States, 321 F.2d 7, 10 (1st Cir. 1993).

Potential Other Offenses

1. Additional Applicable Federal Statute: Conspiracy to Defraud the United States (18 U.S.C. 371)

As noted earlier, a wide variety of other tax-related statutes may be applicable depending on how the facts develop. One example is Conspiracy to Defraud the United States (18 U.S.C. 371).

That statute makes it a crime for two or more people to “conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy.”

The statute can be violated in two ways: (1) conspiring to commit other federal offenses; and (2) conspiring to “defraud the United States.” The two offenses can overlap in circumstances where the purpose of the conspiracy to defraud the United States involved conduct that violated federal criminal law. See e.g., United States v. Helmsley, 941 F.2d 71, 90 (2d Cir. 1991) (citing United States v. Rosenblatt, 554 F.2d 36, 40 (2d Cir. 1977).

The statute is regularly used to prosecute a broad array of criminal conspiracies to defraud the government. The case law is clear—to “defraud” the government does not require any financial or pecuniary loss. Instead, interfering with, impairing, or obstructing one of the government’s functions by deceit or dishonesty is enough. See e.g., Hass v. Henkel, 216 U.S. 462 (1910); Hammerschmidt v. United States, 265 U.S. 182 (1924); Tanner v. United States, 483 U.S. 107 (1987); United States v. Del Toro, 513 F.2d 656 (2d Cir.), cert. denied, 423 U.S. 826 (1975); United States v. Coplan 703 F. 3d 46 (2d Cir. 2012); United States v. Jacobs, 475 F.2d 270 (2d Cir.); United States v. Sprecher, 783 F. Supp. 133, 156 (S.D.N.Y. 1992), modified on other grounds, 988 F.2d 318 (2d Cir. 1993).

The statute has often been used to prosecute those who make false statements to federal tax authorities. See, e.g., United States v. Helmsley, 941 F.2d 71, 93 (2d Cir. 1991) (mischaracterization of deductions was prosecuted under §§ 371, 7206, 7201 (evasion)); United States v. Goldberg, 105 F.3d 770, 772 (1st Cir. 1997) (convicted of §§ 371 and 7206(1) for a scheme to conceal payments to individuals through use of “straw employees” and benefits to third parties); Coplan, 703 F. 3d 46, (conspiracy to deceive IRS about the purpose of transactions engineered to generate tax losses). A conspiracy to defraud the IRS charged under § 371’s defraud clause is commonly referred to as a “Klein conspiracy” after a Second Circuit decision where the defendants were convicted of conspiring to defraud the United States by impeding and obstructing the Treasury Department in collection of income taxes. United States v. Klein, 247 F.2d 908, 915 (2d Cir. 1957).

To succeed in prosecuting conspiracies to defraud the United States, the government must prove: (1) there was an illegal agreement between at least two people; (2) that the defendant voluntarily entered; (3) with specific, willful intent to achieve the objective of the conspiracy; and (4) an overt act occurred in pursuance of the objective. See e.g., United States v. Pinckney, 85 F.3d 4 (2d Cir. 1996); United States v. Nall, 949 F.2d 301, 305 (10th Cir. 1991).

Here, the conspiracy might consist of (1) an agreement between Trump and Cohen or Allen Weisselberg; (2) that Trump voluntarily entered; (3) with the specific, willful intent to defraud the IRS by mischaracterizing the reimbursement of the hush money payment as legal fees, resulting in it being reported as income; and (4) proof of overt acts by Trump such as his personal signature on a number of the checks issued to Cohen.

2. Additional Applicable State Statute: New York Filing a False Instrument (N.Y. Penal Law, § 175.30; N.Y. Penal Law, § 175.35).

Just as on the federal side, a wide variety of other statutes may be applicable depending on how the facts develop. One example is Offering a False instrument for Filing, either in the Second Degree (N.Y. Penal Law, § 175.30) or First Degree (N.Y. Penal Law, § 175.35).

“The elements of offering a false instrument for filing in the second degree are (1) knowledge that the written instrument contains a false statement or false information, and (2) offering or presenting such an instrument to a public office or public servant (3) with the knowledge or belief that it will become a permanent record of the public office to which it was submitted. To make out offering a false instrument for filing in the first degree, the People are also required to prove (4) the defendant’s intent to defraud the state, one of its political subdivisions, a public authority or public benefit corporation.” § 17:10. Offering a false instrument for filing—Elements of offense, 6 N.Y. Prac., Criminal Law § 17:10 (4th ed.).

The statute has been used many times to successfully prosecute those who file false tax returns or related documents. See e.g., People v. Lacay, 115 A.D.2d 450, 496 N.Y.S.2d 337 (N.Y. App. Div., 1st Dept. 1985) (Prosecutors had discretion to prosecute the defendant’s filing of false sales tax returns under broader statute of offering false instrument for filing, rather than N.Y. Tax Law § 1145(b), which provides for criminal penalties for filing false sales and use tax returns.); People v. DeRue, 179 A.D.2d 1027, 579 N.Y.S.2d 799 (N.Y. App. Div., 4th Dept. 1992) (Invoices were capable of being used to defendant’s advantage, to avoid paying sales tax, to show tax exemption or that sales tax ​​has been paid, thus “written instruments” for the purposes of the statute.). See also, 6 N.Y. Prac., Criminal Law § 17:12 (4th ed.), § 17:12. Offering a false instrument for filing—Tax returns as “written instruments” under false filing statute.

Conclusion

We have argued that DA Bragg has strengthened his case against Trump by bumping up the charges to a felony based on Trump’s intent to commit (or aid or conceal) crimes involving false statements to tax authorities. Whatever the effectiveness of such a bump-up based on the alleged primary campaign finance violations, pursuing an approach based upon state tax violations is wise and well grounded. The strongest case involves statements to tax authorities falsely characterizing the payments to Michael Cohen as “legal fees,” rather than their true nature (reimbursements for a hush money payment). A strong case could also involve other variations on state criminal tax violations, as well as possible federal ones. The DA has not precluded asserting additional tax or other bases for the bump up. His response to the defendant’s request for a bill of particulars notably includes (but is not limited to) a set of specified offenses. We hope the additional analysis we have offered here is useful to the press, the public and all other stakeholders in understanding the strength of the DA’s position.

Photo credit: Manhattan District Attorney Alvin Bragg speaks during a press conference to discuss his indictment of former President Donald Trump, outside the Manhattan Federal Court in New York, April 4, 2023 (Angela Weiss/AFP via Getty Images)

The post The Untold Strength of Tax Crimes in Manhattan DA’s Case Against Former President Trump appeared first on Just Security.

On April 4, 2023, Manhattan District Attorney Alvin Bragg announced the first criminal indictment of a former U.S. president in history. The historic indictment and statement of facts foregrounded the alleged effort to suppress information from reaching voters during the 2016 presidential election. At the center of the case is a catch and kill and “hush money” arrangement that former president Donald Trump, the head of the National Enquirer David Pecker, and the two men’s associates allegedly set up in the course of the presidential campaign to bury stories about Trump’s allegedly having had extramarital affairs (Manhattan DA Indictment Press Release). The DA claims that in making these hush money payments, Trump violated New York state’s law prohibiting the falsification of business records and did so in furtherance of other crimes, including federal campaign finance law, state election law, and tax laws.

The commencement of the trial is currently set for March 25, 2024. As the case continues to unfold, we have updated our original chronology of events to reflect the new information released by the DA’s office, Trump’s attorneys, and related congressional actions. 

We rely upon court filings, contemporaneous media reports, and extracts from a Pulitzer Prize-winning team’s account of the events, The Fixers. Key individuals include Trump’s former lawyer and personal “fixer,” Michael Cohen; the former Chairman and CEO of American Media Inc., David Pecker; the two women paid to remain silent, Stephanie Clifford (aka “Stormy Daniels”) and Karen McDougal. Many of the individuals involved have reportedly appeared before Bragg’s grand jury this year, as noted in the latter portion of the chronology. 

We will continue monitoring the Manhattan investigation as it unfolds and update this chronology accordingly.

***

Beginning around 2004: Former American Media Inc. (“AMI”) employees claim that the company and its publications routinely turned away stories and tips that could paint Donald Trump in a bad light. AMI CEO David Pecker had a strong friendship with Trump throughout this period, attending Trump’s wedding to Melania in 2005 (AP; The Wall Street Journal; The New Yorker; see also Michael Cohen congressional testimony, “these catch and kill scenarios existed between David Pecker and Mr. Trump long before I started  working for him in 2007”).  

2005: While in conversation with Billy Bush, an anchor at the time for Access Hollywood, Trump identified a “young woman through a bus window” and began making lewd, sexually aggressive remarks. Bush recorded Trump’s comments on a hot mic: “I’m automatically attracted to beautiful women — I just start kissing them, it’s like a magnet. Just kiss. I don’t even wait. And when you’re a star, they let you do it. You can do anything… Grab ’em by the pussy” (NBC News). 

June 2006: Karen McDougal met Trump while The Celebrity Apprentice was being filmed at the Playboy mansion. McDougal had been hired to work as an extra at a pool party scene. At the end of the night, Trump reportedly asked McDougal for her phone number. They talked “right away on the phone… for about a week before [Trump’s] next visit to [Los Angeles]” (CNN; The New Yorker).  

June 12, 2006: According to McDougal, she and Trump went on their first “date” at the Beverly Hilton Hotel. McDougal claims that Trump’s bodyguard brought her to a bungalow in the back of the hotel, where she and Trump were “intimate.” Trump reportedly tried to pay McDougal afterward. By McDougal’s account, she and Trump then began an extended affair, meeting up in Los Angeles, Lake Tahoe, and even his New York apartment in Trump Tower (NPR; POLITICO). 

July 2006: Stephanie Clifford (aka “Stormy Daniels”) met Trump at a celebrity golf tournament in Lake Tahoe. Clifford claims that the two had sex in Trump’s hotel room. At dinner, Trump reportedly told Clifford that he could “make [her appearing on The Apprentice] happen” (CBS; The Fixers, p. 72).  

• McDougal claims that she also attended the Lake Tahoe golf tournament and had sex with Trump (The New Yorker). 

2007: Michael Cohen entered into employment as “an attorney and employee of a Manhattan-based real estate company,” the Trump Organization, under the titles “Executive Vice President” and “Special Counsel” to Trump (Cohen Criminal Information, p. 1). 

January 2007: According to McDougal, she attended a launch party for Trump Vodka in Los Angeles and sat at a table with “Kim Kardashian, Trump, Donald Trump, Jr., and Trump, Jr.’s wife, Vanessa, who was pregnant.” At another point (no date specified in source), McDougal claims she worked as a costumed Playboy bunny at a party hosted by Trump and took pictures together with him and his family (The New Yorker). 

April 2007: After nine months, McDougal reportedly ended her relationship with Trump. A friend of McDougal’s later claimed that “the breakup was prompted in part by McDougal’s feelings of guilt” (The New Yorker). 

Throughout 2007: According to a lawsuit Clifford filed against Trump in March 2018, their “intimate relationship” lasted “well into the year 2007” and “‘included, among other things, at least one ‘meeting’ with Mr. Trump’ at the Beverly Hills Hotel” (The Washington Post). 

July 2007: Trump asked Clifford to meet with him “privately at the Beverly Hills Hotel in Los Angeles.” Clifford later claimed that “they did not have sex, but he wanted to” (PBS). 

August 2007: Trump reportedly called Clifford to tell her that he “[was not] able to get her a spot” on The Apprentice. According to Clifford, they did not meet again (PBS). 

2009 or 2010: Clifford and Trump had their last conversation, by Clifford’s account. According to Clifford, Trump called her after she appeared on television “and was like, ‘Hey, I just saw you on CNN’ or Fox or something… ‘You looked great. I love how you give it to ‘em’” (The Washington Post). 

May 2011: Clifford “agreed to tell her story to a sister publication of In Touch magazine [Life & Style] for $15,000.” At the magazine’s request, she and other witnesses reportedly took and passed polygraph exams about her alleged affair with Trump. Two employees of the magazine at the time later claimed that “the story never ran because after the magazine called Mr. Trump seeking comment, his attorney Michael Cohen threatened to sue.” Clifford has also claimed that she was never paid (60 Minutes; The Fixers, p. 121). 

May 2011: Weeks after the In Touch story was squashed, Clifford alleges she “was threatened by a man who approached her in Las Vegas.” Clifford claims that the man came up to her and said, “Leave Trump alone. Forget the story,” before looking at her daughter and saying, “That’s a beautiful little girl. It’d be a shame if something happened to her mom” (60 Minutes; CBS).  

October 2011: TheDirty.com, a gossip site, published rumors about an extramarital affair between Clifford and Trump in July 2006 (Cohen Warrant, p. 39).

October 11, 2011: Clifford’s attorney, Keith Davidson, “sent a cease and desist letter to TheDirty.com” and demanded that the site remove the article about Trump and Clifford (Cohen Warrant, p. 39).

October 12, 2011: Cohen denied the rumors about Trump and Clifford’s affair. He stated to E! News that, “[t]he totally untrue and ridiculous story… emanated from a sleazy and disgusting website… The Trump Organization and Donald J. Trump will be bringing a lawsuit… Trump and the Trump Organization would like to thank and commend Stormy Daniels and her attorneys for their honest and swift actions” (Cohen Warrant, p. 39).

March 18, 2015: Trump announced plans to form a presidential exploratory committee in advance of the 2016 election (POLITICO). 

June 16, 2015: Trump announced his bid for the presidency at his New York tower. At this time, Cohen “continued to work at the Company [the Trump Organization] and did not have a formal title with the campaign.” However, Cohen still “had a campaign email address and, at various times, advised the campaign, including on matters of interest to the press, and made televised and media appearances on behalf of the campaign” (The Guardian; Cohen Criminal Information, pp. 11-12).

In August 2015:  In a meeting reportedly arranged by Cohen, Trump met with Pecker and Cohen at Trump Tower in Manhattan (Trump has been identified in previous federal court filings as “at least one other member of the campaign” and as “Individual-1”). Pecker offered to “help with [Trump’s] campaign, saying that he would act as the ‘eyes and ears’ for the campaign by looking out for negative stories about [Trump] and alerting [Cohen] before the stories were published.” This early warning system was designed to “[assist] the campaign in identifying such stories so they could be purchased and their publication avoided.” During the meeting, Pecker also committed “to publish negative stories about [Trump’s] competitors for the election.” (Manhattan DA Statement of Facts, p. 3; AMI Non-Prosecution Agreement, p. 4; Cohen Criminal Information, p. 12; Cohen Sentencing Memo, p. 12; The Fixers, pp. ix-xi, 317; The Wall Street Journal; CNN). The Enquirer ultimately published, during the primary season alone, “more than sixty stories attacking [Trump’s] opponents, the Clintons most of all, followed by Cruz” (The Fixers, p. 161). National Enquirer executives also allegedly shared pre-publication copies of articles and cover images related to Trump and his political opponents with Cohen throughout the campaign (The Washington Post).

In or about October or November 2015: Pecker “learned that a former Trump Tower doorman [Dino Sajudin]…was trying to sell information regarding a child that [Trump] had allegedly fathered out of wedlock.” Pecker subsequently directed AMI to negotiate and sign “an agreement to pay [Sajudin] $30,000 to acquire exclusive rights to the story” (Manhattan DA Statement of Facts, pp. 3-4; The Fixers, pp. xi, 145). 

November 15, 2015: AMI reportedly “entered into a source agreement with Sajudin” whereby, as Pecker directed, Sajudin “would get paid $30,000 if the Enquirer published a story based on his information” (The Fixers, p. 146).

November 30, 2015: In a memo to Pecker, Dylan Howard, then the chief content officer at AMI, reportedly detailed his team’s efforts to confirm Sajudin’s story, which included having Sajudin take a polygraph examination. Two former AMI employees told The New Yorker that “they believed that Cohen was in close contact with A.M.I. executives while the company’s reporters were looking into Sajudin’s story, as Cohen had been during other investigations related to Trump. ‘Cohen was kept up to date on a regular basis,’ one source said” (The Fixers, p. 146; The New Yorker). 

Early December 2015: Sajudin reportedly completed the lie detector test that AMI had arranged for him. During the lie detector test, “Sajudin said that he’d heard Trump had fathered the child from other employees and from residents of Trump World Tower.” The private investigator who had conducted the test reported to the Enquirer that Sajudin was “being truthful.” Sajudin reportedly requested payment from the Enquirer immediately thereafter and stated that he would take his story elsewhere if they did not comply (The Fixers, pp. 146-7; The New Yorker).

Early December 2015: The Enquirer reportedly still saw credibility issues with Sajudin even after he passed the lie detector tests, so one of the paper’s reporters contacted Trump’s assistant to corroborate the story. Sometime following the call between the reporter and Trump’s assistant, Cohen found out about the story. He then contacted Howard and urged him not to move forward with publishing Sajudin’s account. Howard reportedly stated that “He is furious” to one of the other editors following his call with Cohen (The Fixers, pp. 146-7).

Early December 2015: AMI bought Sajudin’s story “without fully investigating his claims, but [Pecker] directed that the deal take place because of his agreement with[Trump and Cohen].” Specifically, an editor with the Enquirer, Barry Levine, instructed the company’s general counsel, Cameron Stracher, to draft a new source agreement whereby the Enquirer was to pay Sajudin $30,000 in full before publication. “In return for the $30,000, Sajudin agreed that he wouldn’t disclose his story or his agreement with [AMI] to any third parties. ‘In the event Source breaches this provision, Source shall be liable to AMI and shall pay to AMI…the sum of $1,000,000,’ the contract said.” (Manhattan DA Statement of Facts, pp. 3-4; The Fixers, p. 148). 

Sometime after AMI paid Sajudin: Pecker “ordered the A.M.I. reporters to stop investigating” the veracity of Sajudin’s story. “[T]he story died” (The New Yorker; The Fixers, pp. 148).

Sometime after AMI paid Sajudin: “AMI falsely characterized this payment in AMI’s books and records, including in its general ledger…When AMI later concluded that the story was not true, [Pecker] wanted to release the Doorman from the agreement. However,[Cohen] instructed [Pecker] not to release the Doorman until after the presidential election, and [Pecker] complied with that instruction because of his agreement with [Trump and Cohen]” (Manhattan DA Statement of Facts, pp. 3-4; The Fixers, p. xi).

February 1, 2016: Trump finished second in the Iowa caucuses, losing the first Republican state nominating contest to Senator Ted Cruz (R-TX) (Reuters). 

March 1, 2016: Trump won seven of the eleven “Super Tuesday” states in the Republican primary (Reuters). 

April 2016: Clifford and her agent, Gina Rodriguez, attempted to sell Clifford’s story to media outlets for the second time. On April 7, after receiving rejections from other publications, Rodriguez reached out to Howard at AMI. Howard reportedly rejected the story for the same reason the others had: Clifford had previously publicly denied her involvement with Trump, calling affair rumors “bullshit” after the story surfaced in 2011 (The Fixers, pp. 123, 163).  

May 7, 2016: Carrie Stevens (a fellow former Playboy model and former friend of McDougal) tweeted, “I usually don’t get involved in politics but why Bill Clinton can’t [sic] get an extramarital BJ but @RealDonaldTrump can?” Soon after, Stevens sent another tweet with the hashtag “donaldlovesplaymates” and McDougal’s Twitter handle. At that point, McDougal reportedly realized that the story of her affair would likely become public as Trump’s presidential campaign continued and decided to meet with an attorney. She met with Keith Davidson, who was also (separately) representing Clifford at the time, in the hopes of asserting “control of the narrative.” According to their retainer agreement, Davidson was contracted to assist McDougal with selling her story about her “interactions with Donald Trump” and any “confidentiality agreements” arising out of it (The Fixers, pp. 162–163; Cohen Criminal Information, pp. 12-13). 

June 15, 2016: Davidson contacted Howard and attempted to sell McDougal’s story to The National Enquirer, an AMI publication. In accordance with their August 2015 agreement, Pecker and Howard called Cohen and alerted him to the story’s existence. Howard then “began negotiating for the purchase of the story” at “Cohen’s urging and subject to Cohen’s promise that AMI would be reimbursed” (AMI Non-Prosecution Agreement, p. 4; Cohen Criminal Information, pp. 12-13; The Fixers, p. 164). 

In or about June 2016:  After initially notifying Cohen about the story, Howard continued to regularly text and call Cohen with further updates. Trump “did not want this information to become public because he was concerned about the effect it could have on his candidacy.” Over multiple discussions, Trump and Cohen negotiated with Pecker about who would purchase McDougal’s story (Manhattan DA Statement of Facts, p. 4).

June 20, 2016: Howard reportedly arranged a meeting in Los Angeles with McDougal, Davidson, and two of McDougal’s contacts, John Crawford and Jay Grdina. Howard interviewed McDougal about the alleged affair with Trump, but he “sensed her reluctance to come forward.” At one point, McDougal reportedly said, “I don’t want to be the next Monica Lewinsky.” McDougal had brought notes with dates and phone numbers related to the alleged affair, but Howard reportedly claimed that the story needed additional documentation to be worth more than $15,000. McDougal then “suggested that she might have some corroborating materials in a storage locker. She promised to look for them” (AMI Non-Prosecution Agreement, p. 4; The Fixers, p. 164).

June 20, 2016: Following the interview, Howard reportedly told Davidson he would update him on whether AMI intended to buy McDougal’s story by the end of the day. Davidson agreed to refrain from “shopping McDougal’s information to another outlet” in the meantime. After he left Davidson’s office, Howard joined “a three-way call with Pecker and Cohen.” The group reportedly agreed that AMI would not offer McDougal a deal yet (The Fixers, pp. 164–165).

Sometime between June 20 and June 27, 2016: Cohen reportedly informed Trump of McDougal’s meeting with Howard (The Fixers, p. 165). 

June 27, 2016: Trump reportedly called Pecker to ask whether he could bury McDougal’s story (The Fixers, p. 166). 

July 7, 2016: The lead investigative producer for ABC News, Rhonda Schwartz, reportedly met with McDougal, Davidson, and Grdina at the Beverly Wilshire Hotel for an all-day interview (The Fixers, p. 166).

Over several weeks following July 7, 2016: McDougal and Schwartz reportedly continued to meet. During this time, “ABC News entered into a confidentiality agreement with Davidson that barred the outlet from publicizing any of the information McDougal provided, unless or until she agreed to do the interview” (The Fixers, p. 166). 

Sometime after July 7, 2016: Davidson, likely hoping to secure a better deal for McDougal than the unpaid arrangement with ABC News, reportedly alerted Howard to a (phony) ABC News plan to air an interview with McDougal on primetime television. Sources claim that Howard passed the information along to Pecker, who alerted Cohen, who informed Trump (The Fixers, pp. 167–168).  

July 19, 2016: Trump won the official GOP presidential nomination with 1,237 delegates (NBC News). 

In or around June 2016:  After discussing AMI’s purchase of McDougal’s story with Trump and Cohen, Pecker signed off on the deal. He did so on the condition that “the Trump Organization would reimburse AMI” (Manhattan DA Statement of Facts, p. 4).

July 29, 2016: Howard reportedly extended a loose offer to Davidson for McDougal’s story (The Fixers, p. 168). 

First week in August 2016: Davidson and AMI reportedly negotiated an agreement to purchase McDougal’s story (The Fixers, p. 168). 

On or around August 5, 2016: AMI entered into an agreement to acquire the “limited life rights” to the story of McDougal’s alleged affair with Trump for $150,000. AMI also committed to feature McDougal on “two magazine covers and publish over one hundred magazine articles authored by her. Despite the cover and article features to the agreement, its principal purpose, as understood by those involved, including [Cohen], was to suppress [McDougal’s] story so as to prevent it from influencing the election” (Manhattan DA Statement of Facts, p. 4; Cohen Criminal Information, p. 13; AMI Non-Prosecution Agreement, p. 4; The Fixers, pp. 168, 192). 

On or around August 10, 2016: AMI sent $150,000 to Davidson “in cooperation, consultation, and concert with, and at the request and suggestion of one or more members or agents of a candidate’s 2016 presidential campaign, to ensure that a woman did not publicize damaging allegations about that candidate before the 2016 presidential election and thereby influence that election.” As court filings later revealed, “AMI falsely characterized this payment in AMI’s books and records, including in its general ledger. The AMI CEO agreed to the deal after discussing it with both [Trump] and [Cohen], and on the understanding from [Cohen] that [Trump] or the Trump Organization would reimburse AMI.” (Manhattan DA Statement of Facts, p. 4; AMI Non-Prosecution Agreement, p. 4). 

August – October 2016: Clifford reportedly participated in talks with multiple outlets including Good Morning America and Slate for her account of the alleged Trump affair. Jacob Weisberg, editor of Slate, claimed to have spoken with Clifford several times during this period. Clifford reportedly told Weisberg that, using lawyers as intermediaries, “Trump had negotiated to buy her silence.” Weisberg claimed that Clifford also sent him photos of  “an unfinished draft contract in which pseudonyms had been used.” However, Clifford then reportedly “cut Weisberg off,” and he did not pursue the story ​​(The Fixers, p. 238; Slate; The New York Times; Cohen Warrant, p. 40). 

August 2016 – September 2016: Pecker agreed to assign the rights to the non-disclosure portion of AMI’s agreement with McDougal to Cohen in exchange for a $125,000 payment. During this period, Cohen also “incorporated a shell entity called ‘Resolution Consultants LLC’ for use in the transaction.” (Cohen Criminal information, pp. 13-14; AMI Non-Prosecution Agreement, p. 4).

September 2016:  In a recorded conversation, Trump and Cohen discussed reimbursing AMI for its purchase of McDougal’s story and obtaining the rights to the story from AMI. Cohen told Trump that he planned to open a company to facilitate this transfer and that he had discussed the matter with the Trump Organization CFO, Allen Weisselberg. In response to Cohen’s overview of the plan, Trump asked, “So what do we got to pay for this? One fifty?” Trump initially proposed paying AMI in cash, but after Cohen disagreed with that approach he mentioned paying by check (Manhattan DA Statement of Facts, p. 5).

September 30, 2016: Following his discussions with Cohen, Pecker signed an assignment agreement “in which AMI agreed to transfer its rights to [McDougal’s] account to [Cohen’s] shell company for $125,000.” Pecker delivered the agreement to Cohen “along with an invoice from a shell corporation incorporated by the consultant [separate from Cohen’s shell entity] for the payment of $125,000, which falsely stated the payment was for an ‘agreed upon ‘flat fee’ for advisory services’” (Manhattan DA Statement of Facts, p. 5; AMI Non-Prosecution Agreement, p. 5; Cohen Criminal information, pp. 13-14).

September 30, 2016: Resolution Consultants LLC was created in Delaware. Cohen reportedly used his own name for the corporate formation documents (The Fixers, p. 237). 

Early October 2016: Before Cohen had paid the$125,000 reimbursement, Pecker “consulted with AMI’s general counsel and then told [Cohen] that the deal to transfer the rights to [Cohen’s] shell company was off.” During the conversation with Cohen, Pecker told Cohen that he “should tear up the assignment agreement. [Cohen] did not tear up the agreement, which was later found during a judicially authorized search of his office” (Manhattan DA Statement of Facts, p. 5; Cohen Criminal Information, pp. 13-14; see also AMI Non-Prosecution Agreement, p. 5). 

• Additional detail from Cohen’s defense sentencing memo: “Michael himself did not make the payment to Woman-1 [McDougal] called for by the agreement reached between Corporation-1 [AMI] and Woman-1, but participated in planning discussions with Client-1 [Trump] and the Chairman and CEO of Corporation-1 relating to the payment made by Corporation-1, including obtaining the commitment of Client-1 to repay Corporation-1. As the matter unfolded, the contract was profitable for Corporation-1, and Client-1’s failure to reimburse Corporation-1 was ultimately not contested by Corporation-1” (Cohen Defense Sentencing Memo, pp. 18-19) (emphasis added)

October 7, 2016: The 2005 Access Hollywood tape of Trump saying “Grab ’em by the pussy” became public (The Washington Post).

October 8, 2016*: The very next day, Rodriguez, Davidson, and Howard reportedly began discussions about AMI purchasing Clifford’s story. They appear to have believed it was “more marketable [then] than it had been when Rodriguez first pitched Howard in April, before the Access Hollywood tape placed Trump’s treatment of women in the national spotlight” (The Fixers, p. 174).

*The timeline of events on October 8 is supplied primarily from two sources: The Fixers and Cohen’s search warrant. Each source provides information about the conversations that occurred between Trump, Cohen, Hicks, Pecker, Howard, Davidson, and Rodriguez. However, where The Fixers provides precise details about the contents of the conversations, it fails to include the precise times of those conversations. Cohen’s search warrant, conversely, provides precise details about the times of calls, but not their contents. In order not to mangle the timeline, we present the information below as it appears in the original sources. Where we were able to confirm facts in both sources, we have indicated so with an additional in-text citation.

October 8, 2016, Sourced from The Fixers (facts shown in the order they appeared)

• Afternoon: Davidson texted Howard that “‘Trump is fucked.’” Howard responded, “‘Wave the white flag. It’s over people!’” (The Fixers, p. 174).
• A few hours later in the afternoon: Davidson emailed Rodriguez, asking if she had “‘heard from [Clifford] lately?’” (The Fixers, p. 174).
• Around 30 minutes later: Howard texted Rodriguez to follow up on her client, asking her “to send him a pitch so he could elevate it to his boss, [Pecker].” He added that  Pecker would “likely pay.” Rodriguez then emailed Howard the pitch, which included “a brief description of her client’s [Clifford’s] claims” (The Fixers, p. 174).
• After 7:20 pm ET: “Cohen had a conference call with Hicks and Trump, followed by a call with Hicks alone. Hicks had heard from another campaign aide” that there was another tape, “this one of Trump cavorting with prostitutes in Moscow during a trip there for the Miss Universe pageant in 2013. Hicks had been told that TMZ might have access to the tape, and she knew that Cohen was very close to Harvey Levin, the gossip outlet’s founder. Hicks asked Cohen to let her know if he heard anything from Levin. She also impressed on him … that the campaign’s messaging was that Trump’s remarks on the Access Hollywood were merely ‘locker room talk’” (The Fixers, p. 175; see also Cohen Warrant, p. 41).
• After Cohen’s call with Hicks: “Cohen, Pecker, and Howard exchanged a series of calls after Cohen got off the phone with Hicks. Cohen lobbied Pecker to buy Daniels’s [Clifford’s] story.” During these calls, Cohen sought to convince Pecker to purchase and not publish the story, as he had done with McDougal’s account in a practice known as “catch-and-kill” (The Fixers, p. 175).
• Less than an hour after Rodriguez sent her pitch of Clifford’s story to Howard: Howard texted Rodriguez: “‘How much for [Clifford]?’” She replied “‘250k,’” and they negotiated it down to “‘120.’” Howard then told Rodriguez that “he’d be back in touch by the following morning” (The Fixers, pp. 175–176). 
• “Minutes after signing off with Rodriguez”: Howard texted Pecker: “Woman wants 120k” and Pecker replied “‘We can’t pay 120k.’” Howard then said “‘Ok. They’d need to handle. Perhaps I call Michael and advise him and he can take it from there, and handle.’” Pecker responded, “‘Yes good idea’” (The Fixers, p. 176).
• After AMI decided not to purchase Clifford’s story: Howard and Davidson communicated. Howard agreed “to contact Cohen (again) to vouch for Davidson.” This was because Davidson was anxious about negotiating with Cohen after a previously tense interaction in September. Howard and Cohen communicated again. Howard told Cohen, “‘Be nice’” to Davidson. Howard then texted Pecker “to let him know that Cohen had agreed to handle the story and leave American Media out of it.” He continued: “‘Spoke to MC. All sorted. Now removed. No fingerprints. I’ll recap with you face to face.’” Pecker replied “‘Great work Thx’” (The Fixers, p. 177).
• 9:13 pm GMT: Howard texted Cohen “‘Keith will do it. Let’s reconvene tomorrow’”  (The Fixers, p. 177; see also Cohen Warrant, p. 42).
• “Past 2 [am]” GMT: Cohen texted Howard, “Thank you.” A few minutes later he sent another text to Howard with “the name of his shell company, Resolution Consultants” (The Fixers, p. 177).

October 8, 2016, Sourced from Cohen Warrant

• 7:20 pm: “At approximately 7:20 p.m., Cohen received a call from [Hope] Hicks. Sixteen seconds into the call, Trump joined the call, and the call continued for over four minutes.” Based on toll records, “this was the first call Cohen had received or made to Hicks in at least multiple weeks” (Cohen Warrant, p. 41; see also The Fixers, p. 175).
• About 7:34 pm: “Approximately ten minutes after the [7:20 pm ET] call ended, Hicks and Cohen spoke again for about two minutes” (Cohen Warrant, p. 42; see also The Fixers, p. 175).
  • At some point during the 7:20 pm and 7:34 pm calls (no distinction is made between them in The Fixers), Hicks and Cohen communicated about a rumor that “Hicks had heard from another campaign aid” that there was another tape, “this one of Trump cavorting with prostitutes in Moscow during a trip there for the Miss Universe pageant in 2013. Hicks had been told that TMZ might have access to the tape, and she knew that Cohen was very close to Harvey Levin, the outlet’s founder. Hicks asked Cohen to let her know if he heard anything from Levin. She also impressed on him… that the campaign’s messaging was that Trump’s remarks on the Access Hollywood tape were merely ‘locker room talk’” (The Fixers, p. 175).)
• At 7:39 pm (immediately after the Hicks-Cohen call ends): Cohen called Pecker for 30 seconds (Cohen Warrant, p. 42).
• Approximately 4 minutes later (about 7:43 pm): Cohen called Pecker again, and they spoke “for more than a minute” (Cohen Warrant, p. 42).
• 3 minutes after the Cohen-Pecker call ends (about 7:47 pm): Howard called Cohen. They spoke “for approximately a minute” (Cohen Warrant, p. 42).
• 7:56 pm: Cohen called Hicks for 2 minutes (Cohen Warrant, p. 42).
• 7:58 pm: Pecker called Cohen for 2 minutes (Cohen Warrant, p. 42).
• 8:03 pm: Cohen called Trump for 8 minutes (Cohen Warrant, p. 42).
• 8:39 pm: Howard called Cohen for 4 minutes (Cohen Warrant, p. 42).
• 8:57 pm: Howard called Cohen for 6 minutes (Cohen Warrant, p. 42).
• 9:13 pm: Howard texted Cohen “‘Keith will do it. Let’s reconvene tomorrow’” (Cohen Warrant, p. 42; see also The Fixers, p. 177).

October 9, 2016: 

• At some point this day: Rodriguez reportedly told “Howard that she had another offer for [Clifford’s] story, this one for $200,000, a lie meant to prod the deal along” (The Fixers, p. 177). 
• 3:31 am: Cohen texted Howard: “‘Thank you’” (Cohen Warrant, p. 43). 
• 3:39 am: Howard texted Cohen and Davidson: “‘Resolution Consultants LLC. is the name of the entity I formed a week ago. Whenever you wake, please call my cell’” (Cohen Warrant, p. 43). 

October 10, 2016: “[Cohen] negotiated a deal with [Davidson] to secure [Clifford’s] silence and prevent disclosure of the damaging information in the final weeks before the presidential election. Under the deal that [Davidson] negotiated, [Clifford] would be paid $130,000 for the rights to her account” (Manhattan DA Statement of Facts, p. 6).

• 10:58 am: Howard texted Cohen and Davidson: “Keith/Michael: connecting you both in regards to that business opportunity. Spoke to the client this AM and they’re confirmed to proceed with the opportunity. Thanks. Dylan. Over to you two” (Manhattan DA Statement of Facts, p. 6; Cohen Warrant, p. 43). 
  • Howard also reportedly “checked in with Rodriguez” (The Fixers, p. 177).
• 12:25 pm: Davidson texted Cohen: “Michael – if we are ever going to close this deal – In my opinion, it needs to be today. Keith” (Cohen Warrant, p. 43).
• Immediately after: Cohen and Davidson spoke on the phone for 3 minutes (Cohen Warrant, p. 43).
  • During this call, Cohen and Davidson reportedly negotiated the price point for the story: “Cohen wanted to buy the story, but he balked at [Clifford’s] six-figure demand… Davidson said $130,000 was as low as Rodriguez and [Clifford] were willing to go.” Davidson cited a competing offer, which didn’t actually exist (The Fixers, pp. 177-178). 
• On or about October 10, 2016: Davidson and Clifford signed a “side letter agreement” to a “confidential settlement agreement and mutual release” signed under two pseudonyms: “Peggy Peterson” and “David Dennison.” The side letter agreement provided the “true name and identity” of the signatories, but only Peterson was identified in the document (as Clifford); the Dennison identifier and associated signature lines were left blank. A federal investigator later hypothesized that “Davidson sent Cohen this partially-signed ‘side letter’ in order to facilitate the closing of a deal between Davidson’s client and Cohen or Cohen’s client” (Cohen Warrant, pp. 43-44). 

Between October 10 and October 28, 2016: During a meeting in Trump’s office, Trump allegedly told Cohen “that he had spoken to a couple of friends, and it is 130,000, it is not a lot of money, and we should just do it, so go ahead and do it.” Trump then reportedly directed Cohen and Weisselberg (who Cohen later testified was also present in the meeting) to “go back to Mr. Weisselberg’s office and figure this all out” (Cohen Testimony, p. 38; see also Cohen Testimony, p. 26). 

At some point between October 10, 2016 and October 27, 2016: “[Trump] directed [Cohen] to delay making a payment to [Clifford] as long as possible. He instructed [Cohen] that if they could delay the payment until after the election, they could avoid paying altogether, because at that point it would not matter if the story became public. As reflected in emails and text messages between and among [Cohen], [Davidson], and [Howard], [Cohen] attempted to delay making payment as long as possible” (Manhattan DA Statement of Facts, p. 6).

October 13, 2016: Cohen began taking “steps to complete a transaction with Davidson, including attempting to open an account from which Cohen could transfer funds to Davidson” (Cohen Warrant, p. 44). 

• 8:54 a.m.: Cohen texted Pecker “I need to talk to you.” (Cohen Warrant, p. 44). 
• 9:06 a.m.: Pecker texted Cohen: “I called please call me back.” After this message, Pecker and Cohen appear to have moved their communications onto Signal (Cohen Warrant, p. 44). 
• 9:23 am: Cohen emailed a set of documents “from the Secretary of State of Delaware indicating that Cohen had formed a limited liability company called ‘Resolution Consultants LLC’ on September 30, 2016” to a First Republic Bank employee. The body of the email asked the employee to “call me” (Cohen Warrant, p. 45). 
• 10:44 am: Cohen called the First Republic employee and told him “that he needed an account in the name of ‘Resolution Consultants’ opened immediately.” The account was never opened, however, because Cohen failed to complete the requisite paperwork (Cohen Warrant, p. 45). 

October 17, 2016: Cohen reportedly dissolved Resolution Consultants and set up a new company, Essential Consultants L.L.C., two minutes later. It appears that Cohen used the same registered agent in Delaware for both companies (The New York Times; The Fixers, p. 237). 

• That afternoon, The Wall Street Journal editor Ashby Jones reportedly shared a tip he had received on the hush money payments. Per Jones, a “Los Angeles lawyer with the initials K.D.—the source didn’t want to volunteer more—was traversing the country, paying hush money to women who’d been romantically involved with Donald Trump” (The Fixers, p. 188). 
• At some point on this day: “Davidson emailed Cohen and threatened to cancel the… ‘settlement agreement’ by the end of the day if Cohen did not complete the transaction.” Davidson followed that up with “a second email later in the day that stated in part, ‘Please be advised that my client deems her settlement agreement canceled and void’” (Cohen Warrant, p. 45-46).
• 4:00 p.m.: Cohen called Davidson. They “spoke for over five minutes” (Cohen Warrant, p. 46).
• 4:43 p.m.: Howard texted Cohen: “‘I’m told they’re going with DailyMail. Are you aware?’ One minute later, Cohen responded: ‘Call me.’” (Cohen Warrant, p. 46).

October 18, 2016: A “thinly sourced article” posted on The Smoking Gun website reported the alleged affair between Clifford and Trump. The story received scant attention from mainstream media; Clifford did not respond publicly (The Washington Post). 

October 25, 2016: Cohen, Davidson, Howard, and Pecker had several text exchanges and calls “apparently concerning a transaction involving Clifford”  (Cohen Warrant, p. 47)  

• 6:09 p.m.: “Howard sent Cohen a text message stating: ‘Keith calling you urgently. We have to coordinate something on the matter he’s calling you about or its [sic] could look awfully bad for everyone.’ One minute later, Davidson sent Cohen a text message stating ‘Call me.’ Cohen and Davidson called each other several times over the next half hour but appear not to have connected” (Cohen Warrant, p. 47) 
• 6:42 p.m.: “Cohen and Davidson spoke for about eight minutes”  (Cohen Warrant, p. 47). 
• 7:11 p.m. Cohen and Davidson “spoke for another two minutes” (Cohen Warrant, p. 47; see also Cohen Criminal Information, pp. 14-15).

At some point before October 26, 2016: “Ultimately, with pressure mounting and the election approaching, [Trump] agreed to the payoff and directed [Cohen] to proceed. [Cohen] discussed the deal with [Trump and Weisselberg]. [Trump] did not want to make the $130,000 payment himself, and asked [Cohen] and [Weisselberg] to find a way to make the payment. After discussing various payment options with [Weisselberg], [Cohen] agreed he would make the payment. Before making the payment, [Cohen] confirmed with [Trump] that [Trump] would pay him back” (Manhattan DA Statement of Facts, p. 6).

October 26, 2016: “[S]hortly after speaking with [Trump] on the phone, [Cohen] opened a bank account in Manhattan in the name of Essential Consultants LLC, a new shell company he had created to effectuate the payment. He then transferred $131,000 from his personal home equity line of credit (‘HELOC’) into that account” (Manhattan DA Statement of Facts, p. 7).

• 8:26 a.m.: “Cohen called Trump and spoke to him for approximately three minutes” (Cohen Warrant, p. 47)
• 8:34 a.m.: “Cohen called Trump again and connected for a minute and a half” (Cohen Warrant, p. 47)
• 9:04 a.m.: Cohen “emailed an incorporating service to obtain the corporate formation documents” for Essential Consultants LLC (Cohen Warrant, p. 47-48; Cohen Criminal Information, p. 15). 
• Between 11:00 a.m. and 1:00 p.m.: Cohen opened an account for Essential Consultants LLC at the First Republic Bank in Manhattan. After opening the account, Cohen “drew down $131,000 from the fraudulently obtained HELOC [home equity line of credit, also held by Cohen at First Republic Bank],” and requested that it be deposited into the Essential Consultants account he had just opened (Cohen Warrant, p. 48; Cohen Criminal Information, p. 15). 
• 4:15 p.m.: A First Republic Bank employee confirmed that “the funds had been deposited into the Essential Consultants account” (Cohen Warrant, p. 49).

October 27, 2016: At around 10:01 a.m., Cohen “completed paperwork to wire $130,000 from the Essential Consultants account” to Davidson’s attorney-client trust account at City National Bank in Los Angeles. On the paperwork, Cohen “falsely indicated that the ‘purpose of wire being sent’ was ‘retainer.’” This payment amounted to a contribution to the Trump campaign “in excess of the limits of the Election Act, which aggregated $25,000 and more in calendar year 2016” since it was made “in cooperation, consultation, and concert with, and at the request and suggestion of one or more members of the campaign…to ensure that she [Clifford] did not publicize damaging allegations before the 2016 presidential election and thereby influence that election” (Cohen Warrant, p. 50; The New York Times; Cohen Criminal Information, p. 15, p. 19).

October 28, 2016: Cohen reportedly called Trump and updated him on the situation. The same day, Cohen and Clifford reportedly signed “a contract that effectively promise[d] Ms. Clifford money in exchange for not talking about the alleged affair with Mr. Trump. Mr. Trump’s name [did] not technically appear on the document.” (The Fixers, p. 183; The New York Times). 

November 1, 2016: Davidson sent Cohen “copies of the final, signed confidential settlement agreement and side letter agreement.” After he confirmed delivery of the paperwork, Davidson reportedly “wired the money to [Clifford’s] account” (Cohen Criminal Information, p. 15; The Fixers, p. 183). 

• 7:05 p.m.: Cohen called Trump but “it appears they did not connect. Cohen then called a telephone number belonging to Kellyanne Conway, who at the time was Trump’s campaign manager. They did not connect.” (Cohen Warrant, p. 52).
• 7:44pm: Conway returned Cohen’s call. They spoke for “approximately six minutes” (Cohen Warrant, p. 52).

November 4, 2016: Four days before the general election, The Wall Street Journal published an article about the $150,000 hush money deal between McDougal and AMI. The article referenced Clifford only briefly, “reporting that she was considering sharing her story with ABC News but abruptly disappeared on the network before doing so” (The New York Times; The Wall Street Journal). 

• Between 4:30 and 8:00 p.m.: “Cohen communicated several times with Howard, Pecker, and Davidson” (Cohen Warrant, p. 53).
• 8:51 p.m.: “Cohen sent Howard a message, stating: ‘She’s [McDougal] being really difficult with giving Keith a statement. Basically went into hiding and unreachable.’ One minute later, Howard responded: ‘I’ll ask him again. We just need her to disappear.’ Cohen responded, ‘She definitely disappeared but refused to give a statement and Keith cannot push her.’ ” (Cohen Warrant, p. 53).
• 8:55 p.m.: “Howard responded to Cohen’s text: ‘Let’s let the dust settle. We don’t want to push her over the edge. She’s on side [sic] at present and we have a solid position and a plausible position that she is rightfully employed as a columnist’” (Cohen Warrant, p. 53). 

November 8, 2016: Trump and Pence were elected president and vice president of the United States (NBC News). 

December 2016: Pecker met with Trump “privately in Trump Tower in Manhattan.” During their conversation, Trump “thanked [Pecker] for handling the stories of [Sajudin] and [McDougal], and invited [Pecker] to the Inauguration.” Before the meeting, Cohen reportedly asked Pecker “to urge Trump to pay Cohen more money,” especially given that Trump “hadn’t yet repaid his fixer for the Stormy Daniels deal.” Pecker apparently so urged Trump, but “Trump was unmoved. ‘You don’t know how much money he’s got,’ Trump said” (Manhattan DA Statement of Facts, pp. 7; The Fixers, p. 197). 

January 20, 2017: Trump was inaugurated as the 45th President of the United States (Manhattan DA Statement of Facts, pp. 7-8).

January 2017: Cohen and Weisselberg “met to discuss how [Cohen] would be reimbursed for the money he paid to ensure [Clifford’s] silence,” which later court filings characterized as “seeking reimbursement for election-related expenses.” Weisselberg asked Cohen to come to the meeting with “a copy of a bank statement for the Essential Consultants account showing the $130,000 payment.” Accordingly, Cohen presented Weisselberg with said statement reflecting the $130,000 payment made to keep Clifford “silent in advance of the election, plus a $35 wire fee.” In handwriting, Cohen added another $50,000 onto the statement as a “claimed payment for ‘tech services,’…related to work [he] had solicited from a technology company during and in connection with the campaign.” Weisselberg “grossed up” that initial $180,035 reimbursement request to $360,000 “so that [Cohen] could characterize the payment as income on his tax returns, instead of a reimbursement.” Cohen “would be left with $180,000 after paying approximately 50% in income taxes.” On top of the now $360,000 payment, Weisselberg “added an additional $60,000 as a supplemental year-end bonus,” bringing the total payment to $420,000. Weisselberg “memorialized these calculations in handwritten notes on the copy of the bank statement that [Cohen] had provided.” After finalizing the payment amount, Trump, Weisselberg, and Cohen “then agreed that [Cohen] would be paid the $420,000 through twelve monthly payments of $35,000 over the course of 2017. Each month, [Cohen] was to send an invoice to [Trump] through Trump Organization employees, falsely requesting payment of $35,000 for legal services rendered in a given month of 2017 pursuant to a retainer agreement. At no point did [Cohen] have a retainer agreement with [Trump] or the Trump Organization” (Manhattan DA Statement of Facts, pp. 7-8; Cohen Criminal Information, pp. 16-17; PBS and USA Today).

• In Cohen’s book (which is not otherwise cited in this chronology), he states:

“When we sat down, [Weisselberg] he started to explain how Trump was going to make me “whole” on the Daniels payment. First, the $130,000 would be doubled, grossed up as he described it, to make up for the taxes I would have to pay on that money, meaning the starting sum would be $260,000.” (Cohen Memoir p. 298) 

“‘So that’s two-sixty, plus the hundred, and the Boss wants to do another sixty, to make the total four-twenty,’ Allen said.” (Cohen Memoir p. 299)

“’So here’s what we’ll do,’ [Trump] he said. ‘We’ll use the number Allen came up with. What’s the number again?’ 

‘Four hundred and twenty thousand,’ I said. 

‘Wow, that’s a lot,’ he said. ‘We can use this as a retainer for the work you will be doing for me privately. Allen, you can pay Michael $35,000 for each month of the year. Michael, you will send Allen an invoice each month. This is okay with you, right?’

‘Sure, Boss,’ I said. ‘I’m really honored.’” (Cohen

Memoir p. 301)

“He’d get the tax deduction for legal fees, almost certainly a criminal offense if any mortal lied on their tax returns about a business expense of nearly half a million dollars, a reality that I would come to understand in time.” (Cohen Memoir p. 302)

“As I thought about the arrangement, Trump was actually making money on the deal, by way of his tax cheat, and he had my legal services free for the year.” (Cohen Memoir p. 302)

January 2017: Cohen left the Trump Organization and “began holding himself out” as Trump’s personal attorney (Cohen Criminal Information, p. 1). 

January 2017: During another visit to Trump Tower, Trump allegedly thanked Pecker for “buying [McDougal’s] story and burying it” (The Fixers, p. 197). 

Early February 2017: Trump and Cohen “met in the Oval Office at the White House and confirmed this repayment arrangement” (Manhattan DA Statement of Facts, p. 8).

February 14, 2017: Cohen “emailed the Controller of the Trump Organization [Jeffrey McConney] the first monthly invoice, which stated: ‘Pursuant to the retainer agreement, kindly remit payment for services rendered for the months of January and February, 2017.’ The invoice requested payment in the amount of $35,000 for each of those two months. [Weisselberg] approved the payment, and, in turn, [McConney] sent the invoice to the Trump Organization Accounts Payable Supervisor [Deborah Tarasoff] with the following instructions: ‘Please pay from the Trust. Post to legal expenses. Put ‘retainer for the months of January and February 2017’ in the description.’ Accordingly, the Supervisor “printed out [the] invoice and marked it with an accounts payable stamp and the general ledger code ‘51505’ for legal expenses. The Trump Organization maintained [the invoice] as records of expenses paid.” The Supervisor then “recorded [the] payment in the Trump Organization’s electronic accounting system, falsely describing it as a ‘legal expense’ pursuant to a retainer agreement for a month of 2017.” Later court filings note that “[i]n truth and fact, there was no such retainer agreement” and Cohen’s invoices “were not in connection with any legal services he had provided in 2017.” The Trump Organization “maintained a digital entry for [the] expense, called a ‘voucher,’” which “like vouchers for other expenses, became part of the Trump Organization’s general ledgers.” Having taken these steps, the Supervisor then prepared a check with an attached check stub “for approval and signature.” The first check to Cohen for $70,000 was reportedly signed the same day by Weisselberg and Donald Trump Jr. “as trustees. The check stub falsely recorded the payment as ‘Retainer for 1/1-1/31/17’ and ‘Retainer for 2/1-2/28/17.’ (Manhattan DA Statement of Facts, pp. 8-9; Cohen Criminal Information, p. 17; The Fixers, pp. 209–210; POLITICO; The New York Times; CNN; ABC News). 

March – December, 2017: Cohen “submitted ten similar monthly invoices by email to the Trump Organization for the remaining months in 2017. Each invoice falsely stated that it was being submitted ‘[p]ursuant to the retainer agreement,’ and falsely requested ‘payment for services rendered’ for a month of 2017.” As was the case for the January – February 2017 invoice, there “was no such retainer agreement and [Cohen] was not being paid for services rendered in any month of 2017.” Upon receipt of each invoice, McConney forwarded them to the Trump Organization Accounts Payable Supervisor, who followed the same process outlined in the entry above to record and pay the expenses (Manhattan DA Statement of Facts, pp. 8-9). 

March 17, 2017: Donald Trump Jr. and Weisselberg signed a $35,000 check to Cohen that “was also paid from the Trust.” As for the prior month’s payment, “The check stub falsely recorded the payment as ‘Retainer for 3/1-3/31/17’” (Manhattan DA Statement of Facts, p. 9; The New York Times). 

April 2017:  “The remaining nine checks, corresponding to the months of April through December of 2017, were paid by [Trump] personally. Each of the checks was cut from [Trump’s] bank account and sent, along with the corresponding invoices from [Cohen], from the Trump Organization in New York County to [Trump] in Washington, D.C. The checks and stubs bearing the false statements were stapled to the invoices also bearing false statements. [Trump] signed each of the checks personally and had them sent back to the Trump Organization in New York County. There, the checks, the stubs, and the invoices were scanned and maintained in the Trump Organization’s data system before the checks themselves were detached and mailed to [Cohen] for payment” (Manhattan DA Statement of Facts, pp. 9-10).

May 23, 2017: Trump himself signed a $35,000 dollar check to Cohen from his personal account. Trump ultimately signed six of the publicly available checks to Cohen, though later court filings revealed that he signed nine checks in total (The New York Times; Manhattan DA Statement of Facts, pp. 9-10). 

Summer 2017: Trump “invited [Pecker] to White House for a dinner to thank him for his help during the campaign” (Manhattan DA Statement of Facts, pp. 7).

June 2017: Trump personally paid and signed a check to Cohen (Manhattan DA Statement of Facts, pp. 9-10)

July 2017: Trump personally paid and signed a check to Cohen (Manhattan DA Statement of Facts, pp. 9-10)

August 1, 2017: Trump personally paid and signed a$35,000 dollar check to Cohen, which later became public(The New York Times). 

September 12, 2017: Trump personally paid and signed a$35,000 dollar check to Cohen, which later became public(The New York Times). 

October 18, 2017: Trump personally paid and signed a$35,000 dollar check to Cohen, which later became public(The New York Times).

October 20, 2017: The DOJ granted special counsel Robert Mueller “authorization to investigate Cohen, among others, and to follow leads related to his creation and use of Essential Consultants” as Mueller deepened his investigation into the Trump campaign’s possible collusion with Russia (The Fixers, p. 221).  

Circa Late October 2017: Davidson claims to have received “an unusual inquiry” from a client manager at his bank in Los Angeles asking about the source and purpose of the wire transfer he had made to Clifford the previous year. In response, Davidson reportedly “told the bank that the payment had originated with Essential Consultants, and that it was for a legal settlement.” He then reportedly called Cohen to report the conversation. Cohen was reportedly “concerned that someone pretending to be a bank employee had tried to get Davidson to divulge the nondisclosure agreement” but “didn’t seem to grasp the potential peril” that the Mueller investigation was behind the inquiry. Cohen allegedly “did, however, secretly record their phone call” (The Fixers, p. 221).  

November 21, 2017: Trump personally paid and signed a $35,000 dollar check to Cohen, which later became public(The New York Times). 

December 5, 2017: Trump personally paid and signed the final $35,000 dollar check to Cohen, which later became public (The New York Times). 

January 12, 2018: News broke that Cohen had allegedly arranged a deal to pay Clifford $130,000 to keep her silent during the 2016 campaign. In response, Cohen released a statement addressed to The Wall Street Journal claiming, “These rumors have circulated time and again since 2011. President Trump once again vehemently denies any such occurrence as has Ms. Daniels.” Cohen also forwarded The Journal a two-paragraph statement signed by “Stormy Daniels”  denying the affair. A White House official separately stated, “These are old, recycled reports, which were published and strongly denied before the election” (The Wall Street Journal; The New York Times; see also The New York Times). 

January 17, 2018: In Touch published the transcript of its previously-quashed 2011 interview with Clifford (The Washington Post). 

January 18, 2018: The Wall Street Journal reported that Cohen had used “a private Delaware company,” Essential Consultants LLC, to make the $130,000 payment to Clifford (The Wall Street Journal).   

January 22, 2018: Government watchdog organization Common Cause filed an FEC complaint alleging that Cohen’s payment to Clifford had violated campaign finance laws. (Cohen Warrant, p. 55). 

January 30, 2018: During an interview on Jimmy Kimmel Live, Clifford neither confirmed nor denied her alleged affair with Trump and “strongly hint[ed] that she is subject to an NDA.”  Hours before Clifford’s interview, Davidson reportedly drafted a second denial statement at the behest of “Cohen and company.” The statement reportedly asserted that Clifford was not denying the affair “because [she] was paid ‘hush money,’” but because “it never happened.” Clifford allegedly signed the document “without complaint,” but changed her handwriting “as if in subtle protest.” When Kimmel questioned whether Clifford had actually signed the denial, she responded, “‘I don’t know, did I? That doesn’t look like my signature, does it?’” (The Washington Post; The Fixers, p. 242-243). 

February 8, 2018: In response to an inquiry from the FEC, one of Cohen’s attorneys sent a letter stating, “In a private transaction in 2016, before the U.S. presidential election, Mr. Cohen used his own personal funds to facilitate a payment of $130,000 to Ms. Stephanie Clifford. Neither the Trump Organization nor the Trump campaign was a party to the transaction with Ms. Clifford, and neither reimbursed Mr. Cohen for the payment directly or indirectly.” (Letter to the FEC Office of Complaints Examination).

February 13, 2018: In a statement to The New York Times, Cohen claimed that “Neither the Trump Organization nor the Trump campaign was a party to the transaction with Ms. Clifford. The payment to Ms. Clifford was lawful, and was not a campaign contribution or campaign expenditure by anyone” (Cohen Warrant, p. 56). 

On or about February 14, 2018: The New York Times asked Cohen “whether Trump had reimbursed him, whether he and Trump had made any arrangements at the time of the payment, or whether he had made payments to other women. Cohen stated in response, ‘I can’t get into any of that’” (Cohen Warrant, p. 56).  

February 15, 2018: Likely believing that Cohen’s comments to The New York Times had nullified her NDA, Clifford’s agent told AP News that “Everything is off now, and Stormy is going to tell her story” (AP News).

February 16, 2018: The New Yorker published a story featuring details of McDougal’s alleged affair with Trump based on “an eight-page, handwritten document” created by McDougal and provided to the magazine by Crawford. McDougal granted an interview for the piece but “expressed surprise” that the magazine had obtained her notes. During her interview, McDougal “declined to discuss her relationship with Trump for fear of violating the agreement she had reached with [AMI].” In an email to AMI’s general counsel soon after the article dropped, McDougal’s lawyer reportedly asserted that while “McDougal was not contractually required to keep quiet,” her client would “consider entering into a fresh nondisclosure agreement if [AMI] was willing to pay her more money. If not, she’d grant more interviews” (The New Yorker; The Fixers, pp. 248–250).  

February 22, 2018: Cohen reportedly initiated secret arbitration proceedings following Clifford’s media engagements (The Fixers, p. 251). 

February 27, 2018: An arbitrator reportedly “found that Ms. Clifford had violated the [NDA] agreement” and issued a restraining order against Clifford (The New York Times). 

March 6, 2018: Clifford filed a lawsuit “asserting that the nondisclosure agreement that accompanied the $130,000 was void because Mr. Trump never signed it.” The complaint revealed the arbitration proceedings Cohen had initiated in an effort to silence Clifford, as well as the terms of the contract Clifford had signed on October 28, 2016 (The New York Times).

March 7, 2018: Sarah Huckabee Sanders, the White House press secretary, asserted that “there was no knowledge of any payments from the president” and “he has denied all these allegations.” The same day, Clifford’s attorney, Michael Avenatti (who had replaced Davidson at this point), publicly and explicitly asserted “that [Clifford] had a sexual relationship with Trump” (The New York Times; The Washington Post). 

March 9, 2018: Avanetti provided ABC News with a set of emails that he claimed contained communications between Cohen and First Republic Bank surrounding the 2016 payment to Davidson, who was still Clifford’s attorney at the time. NBC News separately broke the news that Cohen had used his Trump Organization email for the exchange. Cohen responded by downplaying the emails as “corroborat[ing] all my previous statements.” He went on to describe how the payment was made, stating, “The funds were taken from my home equity line and transferred internally to my L.L.C. account in the same bank.” Cohen also brushed aside the revelation that he had used his Trump Organization email to coordinate the transaction, stating “I sent emails from the Trump Org email address to my family, friends as well as Trump business emails. I basically used it for everything. I am certain most people can relate.” (ABC News; NBC).  

March 14, 2018: The Wall Street Journal published a story highlighting the role that Jill Martin, the Trump Organization’s assistant general counsel, played in the arbitration at the request of Eric Trump. Per the Journal’s article, Avenatti supplied the outlet with documents Martin had signed, “for the first time [tying] President Donald Trump’s flagship holding company to the continuing effort to silence [Clifford]” (The Fixers, pp. 263–265; The Wall Street Journal). 

March 16, 2018: Trump sought “$20 million in damages from [Clifford] for allegedly [breaking the] nondisclosure agreement 20 times. A lawyer for Cohen’s limited liability company, Essential Consultants, made the claim in papers filed in federal court” (The Washington Post).  

Mid-March 2018: Two weeks after Clifford sued Trump and Essential Consultants, McDougal reportedly brought “a case against [AMI] in the same Los Angeles court” (The Fixers, p. 268). 

March 25, 2018: Clifford was interviewed on 60 Minutes (60 Minutes).  

March 26, 2018: Clifford amended her lawsuit against both Trump and Cohen to sue Cohen for defamation, which she claimed had occurred when Cohen put out his February 2018 statement about the $130,000 payment. The lawsuit argued that Cohen’s statement had caused Clifford “hatred, contempt, ridicule, and shame, and discouraged others from associating or dealing with her” and that she “ha[d] suffered damages in an amount to be proven at trial according to proof, including but not limited to, harm to her reputation, emotional harm, exposure to contempt, ridicule, and shame, and physical threats of violence to her person and life” (NPR).  

April 5, 2018: Trump delivered his first public remarks about the alleged Clifford affair and ensuing hush money payment. When asked by a reporter if he knew about the payment to  Clifford, Trump responded “No.” In response to another question asking why Cohen had made the payment, Trump answered “You’ll have to ask Michael Cohen. Michael is my attorney.” Trump also claimed that he did not know the source of the money for the payment (The New York Times). 

April 9, 2018: As part of a probe by the U.S. attorney’s office in Manhattan, the FBI raided Cohen’s Rockefeller Center office, Park Avenue hotel room, and home. Federal investigators reportedly seized eight boxes of documents and millions of electronic files including business records, emails, and bank records related to a payment to Clifford from Cohen’s office, among other matters. Cohen called Trump that day to inform him of the raid. “In a return call, Trump told [Cohen] to ‘stay strong’” (Manhattan DA’s Statement of Facts, p. 10; The New York Times; The Fixers, p. 286).  

April 15, 2018: Reports became public that the U.S. attorney’s office in Manhattan was investigating possible bank fraud in connection with Cohen’s payment to Clifford, which he had made using his home-equity credit line (The Wall Street Journal). 

Mid-April 2018: Robert “Bob” Costello offered to represent Cohen after Costello’s law partner, Jeffrey Citron, connected Costello with Cohen. Citron and Cohen reportedly knew each other through their children, who attended the same school (The Fixers, p. 289; Manhattan DA’s Statement of Facts, p. 10).

April 17, 2018: Clifford and her attorney released a composite sketch of the man she claimed had threatened her in a Las Vegas parking lot. Clifford’s attorney offered a $100,000 reward for information that would lead to the man’s apprehension (The Washington Post). 

April 18, 2018: AMI reached a settlement agreement with McDougal, freeing McDougal to publicly discuss her alleged affair with Trump. McDougal’s original suit claimed that she had been misled into signing the contract that sold AMI the rights to her story about Trump; the suit also alleged that Cohen had been secretly involved in the negotiations between AMI and McDougal’s lawyer. The settlement agreement foreclosed the possibility of pretrial discovery, which could have revealed emails and other evidence beyond what was found in the FBI’s April 9 raid (The New York Times). 

April 21, 2018: Early in the morning, Costello sent the following email to Cohen summarizing a phone call Costello had with Giuliani: “I just spoke to Rudy Giuliani and told him I was on your team. Rudy was thrilled and said this could not be a better situation for the President or you. He asked me if it was ok to call the President and Jay Sekelow [sic] and I said fine. We discussed the facts, Jay Goldberg’s stupid remarks etc. he said I can’t tell you how pleased I am that I can work with someone I know and trust. He asked me to tell you that he knows how tough this is on you and your family and he will make sue [sic] to tell the President. He said thank you for opening this back channel of communication and asked me to keep in touch. I told him I would after speaking to you further.” Later that day, Costello emailed Cohen again: “I spoke with Rudy. Very Very Positive. You are ‘loved’…Rudy said this communication channel must be maintained…Sleep well tonight, you have friends in high places” (The Fixers, p. 295-6; Manhattan DA’s Statement of Facts, pp. 10-11). 

April 21, 2018: As some speculated whether Cohen would “flip“ and begin cooperating with government investigators against Trump, the president tweeted that “most people will flip if the government lets them out of trouble, even if it means lying or making up stories. Sorry, I don’t see Michael doing that.” He described Cohen as a “fine person with a wonderful family” (Manhattan DA’s Statement of Facts, pp. 10; Twitter). 

April 26, 2018: Trump admitted that Cohen had represented him in dealing with Clifford in an interview on Fox & Friends, stating, “He represents me, like with this crazy Stormy Daniels deal, he represented me” (The New York Times). 

April 30, 2018: Clifford filed a defamation lawsuit against Trump in Manhattan federal court. The suit focused on a tweet Trump had sent on April 18, 2018 related to the sketch of the man who allegedly threatened Clifford in 2011 (The Wall Street Journal). 

May 2, 2018: During a Fox News interview, Rudolph Giuliani (Trump’s new lawyer) acknowledged and described Trump’s repayments to Cohen for the hush money. Giuliani stated that “they funneled it [the $130,000 payment to Clifford] through a law firm, and the president repaid it” (The New York Times). 

May 3, 2018: Trump tweeted that he did pay Cohen a monthly retainer, but reiterated that the payments had “nothing to do with the campaign” (The New York Times). 

On or about June 14, 2018: “[Costello] emailed [Cohen] a news clip discussing the possibility of [Cohen] cooperating, and continued to urge him not to cooperate with law enforcement, writing, ‘The whole objective of this exercise by the [federal prosecutors] is to drain you, emotionally and financially, until you reach a point that you see them as your only means to salvation.’ In the same email, [Costello], wrote, ‘You are making a very big mistake if you believe these ‘journalists’ are writing about you. They want you to cave. They want you to fail. They do not want you to persevere and succeed’” (Manhattan DA’s Statement of Facts, p. 11). 

July 2, 2018: “My wife, my daughter and my son have my first loyalty and always will,” Cohen told ABC News’s George Stephanopoulos. “I put family and country first” (ABC News). Stephanopoulos wrote that “Cohen strongly signaled his willingness to cooperate with special counsel Robert Mueller and federal prosecutors in the Southern District of New York — even if that puts President Trump in jeopardy.”

July 24, 2018: CNN released an audio tape of Trump and Cohen discussing what appears to be the plan to buy the rights to McDougal’s story. In the recording, Cohen explicitly mentions what appears to be the plan to set up a shell company to execute the payment, stating “I need to open up a company for the transfer of all of that info regarding our friend David” (CNN; The Washington Post). 

July 25, 2018: Trump tweeted a response to the tape and suggested it was doctored by Cohen: “What kind of a lawyer would tape a client? So sad! Is this a first, never heard of it before? Why was the tape so abruptly terminated (cut) while I was presumably saying positive things?” (POLITICO). 

July 26, 2018: Press reports continued to circulate  that Cohen might be “flipping” on Trump and could cooperate with the investigation. (CNN)  

August 21, 2018: Cohen pleaded guilty in Manhattan federal court to charges including campaign finance violations and criminal tax evasion. Cohen told the judge that Trump had directed him to arrange the hush money payments, which he claimed were intended to prevent Clifford and McDougal from speaking publicly about their alleged affairs with Trump (Manhattan DA’s Statement of Facts, p. 12; The New York Times; Cohen Plea Press Release).  

August 22, 2018: At 8:44 am ET, Trump tweeted: “If anyone is looking for a good lawyer, I would strongly suggest that you don’t retain the services of Michael Cohen!” At 9:21 am ET, he tweeted again: “I feel very badly for Paul Manafort and his wonderful family. ‘Justice’ took a 12 year old tax case among other things applied tremendous pressure on him unlike Michael Cohen he refused to ‘break’ – make up stories in order to get a ‘deal.’ Such respect for brave man!” (Twitter; Manhattan DA’s Statement of Facts, p. 11). 

August 22, 2018: Trump claimed that the payments to Clifford and McDougal were legal because they “came from me” rather than his campaign. “They weren’t taken out of campaign finance, that’s the big thing,” he told Fox & Friends (USA Today). 

September 20, 2018: AMI privately signed a non-prosecution agreement protecting the company from criminal charges out of the SDNY U.S. Attorney’s Office. In exchange, AMI agreed to “cooperate fully” with investigators and fully disclose all information related to the hush money payments. In the agreement, AMI admitted “‘[a]t no time during the negotiation or acquisition of [McDougal’s] story did AMI intend to publish the story or disseminate information about it publicly.’ Rather, AMI admitted that it made the payment to ensure that [McDougal] ‘did not publicize damaging allegations’ about [Trump] ‘before the 2016 presidential election and thereby influence that election’” (Manhattan DA’s Statement of Facts, p. 11; AMI Non-Prosecution Agreement). 

December 7, 2018: Federal prosecutors released Cohen’s sentencing memo. In its summary of Cohen’s crimes, the memo endorsed Cohen’s claims that Cohen had carried out both hush money payments “in coordination with and at the direction of” Trump (Cohen Sentencing Memo, pp. 2-4, 13-15).  

December 12, 2018: Prosecutors released the details of the non-prosecution agreement with AMI, revealing the extent of AMI’s involvement in the hush money payments and corroborating many aspects of Cohen’s story.  Among the key revelations was that “AMI’s principal purpose in entering into the agreement was to suppress the model’s story so as to prevent it from influencing the election”–indicating that the payments were likely campaign-related. 

 (The New York Times; AMI Non-Prosecution Agreement). 

December 12, 2018: Cohen was sentenced to three years in prison for a litany of financial crimes committed while he was in Trump’s employ. Cohen was also sentenced the same day in a separate case for making false statements to Congress (The Washington Post; DOJ Press Release).  

January 10, 2019: Congressional Democrats announced that Cohen had agreed to testify before the House Oversight and Government Reform Committee on February 7 (The Washington Post).

January 11, 2019: Avenatti announced that he and Clifford would attend the Cohen hearing on February 7 (POLITICO). 

January 23, 2019: Cohen postponed his February 7 appearance before Congress after reportedly receiving “threats against his family” from Trump and Giuliani. (USA Today).  

February 5, 2019: Clifford dropped her defamation claim against Cohen. Avenatti stated “We asked that the minor defamation claim be dismissed and it was because the court sided with us and against Cohen” (The Washington Post). 

February 27, 2019: Cohen testified publicly against Trump before the House Oversight and Government Reform Committee. (Cohen’s testimony can be found here.) When asked if Trump’s organization had made other hush money payments during the campaign, Cohen claimed that Pecker had sent money to other individuals under similar circumstances—and that “not all of them had to do with women” (The New York Times; POLITICO). 

March 7, 2019: Cohen sued the Trump Organization for breach of contract and sought reimbursement for $1.9 million in legal fees incurred after Cohen began cooperating with federal prosecutors. The complaint also claimed that the Trump Organization was responsible for paying the nearly $2 million penalty imposed after Cohen pleaded guilty (The New York Times). 

July 18, 2019: Court documents were unsealed that publicly revealed the communications among Trump, Hicks, Cohen, and several AMI executives in the days following the Access Hollywood tape release in 2016. The documents also appeared to show that “Cohen learned around the same time that Clifford had been considering going public with her claim that she had sex with Trump…. at least some of these communications concerned the need to prevent Clifford from going public, particularly in the wake of the Access Hollywood story” (CNBC). 

August 1, 2019: Manhattan DA Cyrus R. Vance Jr. subpoenaed the Trump Organization for documents related to the Clifford hush money payments.(The New York Times).

May 21, 2020: Due to the coronavirus pandemic, Cohen was released from federal prison to serve the remainder of his sentence at home (AP News). 

July 9, 2020: Federal marshals took Cohen back into custody after he “refused the conditions of his home confinement.” Probation officers had reportedly asked Cohen to agree to a set of conditions including “no engagement of any kind with the media, including print, TV, film, books, or any other form of media/news” for the remainder of his home confinement. Cohen reportedly refused and was brought to a federal detention facility (The New York Times). 

July 23, 2020: A federal judge ordered Cohen’s return to home confinement after finding that his re-imprisonment amounted to a retaliatory act undertaken by the government. During the hearing, the judge stated “I cannot believe fairly that it was not in purpose … to stop his exercise of First Amendment rights.” Cohen had planned to publish a tell-all book about Trump during his confinement (USA Today).   

July 31, 2020: The 9th U.S. Circuit Court of Appeals upheld a lower court ruling dismissing Clifford’s 2018 libel lawsuit against Trump (POLITICO). 

April 13, 2021: The Federal Election Commission found “reason to believe that the violation of the [Federal Elections Campaign] Act by AMI and Pecker” in connection with the payments to McDougal and Clifford “was knowing and willful,” based primarily on factual admissions AMI made in its non-disclosure agreement with the Department of Justice (FEC Factual and Legal Analysis, p. 16) (see also May 17, 2021 entry).

April 26, 2021: The FEC voted to dismiss a 2018 and a 2019 complaint against Cohen for his role in the Clifford payments. The commissioners found that since “the public record is complete with respect to the conduct at issue in these complaints, and Mr. Cohen has been punished by the government of the United States for the conduct at issue in these matters…pursuing these matters further was not the best use of agency resources” (FEC Statement of Reasons).

May 6, 2021: In a split decision that fell along partisan lines, the FEC voted against investigating charges that Trump and his Committee had violated campaign finance laws in the process of making the 2016 Clifford payment and subsequent Cohen reimbursements. The dissenting commissioners noted: “We voted to support OGC’s recommendations to find reason to believe that Trump and the Committee knowingly and willfully accepted an excessive contribution from Cohen and a prohibited corporate or excessive contribution from the Trump Organization, that the Committee knowingly and willfully filed false disclosure reports, and that the Trump Organization knowingly and willfully made a corporate or excessive contribution through its reimbursements to Cohen. There is ample evidence in the record to support the finding that Trump and the Committee knew of, and nonetheless accepted, the illegal contributions at issue here”; “the Commission’s Office of the General Counsel (‘OGC’) recommended finding reason to believe that Cohen and the Trump Organization made, and Trump and Donald J. Trump for President, Inc. (the ‘Committee’) accepted and failed to report, illegal contributions.” (FEC Statement of Reasons). 

May 17, 2021: The FEC reached a settlement with AMI after the commission concluded that the company (allegedly at the direction of Trump and Cohen) had “knowingly and willfully” violated campaign finance laws through its payments to McDougal. AMI acknowledged the violations and agreed to pay a $187,500 fine, but did not admit to “knowingly and willfully” committing them (The Wall Street Journal; The New York Times) (see also April 13, 2021 entry). 

November 12, 2021: In Cohen’s civil suit against the Trump Organization, a Manhattan state court ruled that the company was not required to reimburse Cohen for the millions of dollars in legal fees that Cohen sought. In a statement to CNN, the Trump Organization called the decision an “incredible victory” (Forbes). 

November 22, 2021: Cohen’s three-year prison sentence, which had largely been served in home confinement, ended. (AP News). 

December 17, 2021: Cohen filed a civil rights lawsuit against Trump and several other DOJ officials, seeking damages for alleged First, Fourth, and Eighth Amendment violations related to his re-confinement in federal prison the prior year (Law&Crime). 

November 14, 2022: A Trump-appointed judge dismissed Cohen’s civil rights lawsuit (Law&Crime; Cohen v. U.S. et al. decision). 

November 15, 2022: In a 5-0 decision, a New York state appeals court revived Cohen’s previous lawsuit seeking legal fee reimbursements from the Trump Organization. The court found that the presiding judge had incorrectly dismissed the case, opening a path for Cohen to sue the Trump Organization again (Reuters; Cohen v. Trump Organization LLC). 

November 21, 2022: Reports emerged that Manhattan DA Alvin Bragg planned to revive his office’s criminal investigation into the Clifford hush-money payment. Bragg’s predecessor had examined the payment as possible grounds for a criminal indictment years before, but his office later reportedly decided that the surrounding legal theories were too risky to pursue the matter further (The New York Times).  

January 30, 2023: Bragg convened a grand jury in Manhattan to hear evidence related to the Clifford hush money payment (The Washington Post). 

January 30, 2023: Pecker reportedly met with prosecutors from Bragg’s office (CNN; New York Times)

February 2, 2023: Jeffrey McConney, the Trump Organization’s controller, reportedly appeared before the Manhattan grand jury hearing evidence related to the hush money payment (CNN). 

Some time after the grand jury was impaneled and before March 1, 2023: Howard, Davidson, and Debrah Tarasoff, the Trump Organization’s accounts payable supervisor, testified before the grand jury (New York Times; ABC News). 

March 1, 2023: Kellyanne Conway reportedly met with prosecutors from Bragg’s office, likely to discuss the ongoing hush money investigation (MSNBC). 

March 6, 2023: Hicks reportedly met with prosecutors from Bragg’s office (MSNBC). 

March 9, 2023: Bragg invited Trump to testify before the grand jury, according to one of Trump’s lawyers (AP).

March 13, 2023: Cohen reportedly testified before the grand jury (The Washington Post).

March 15, 2023: An attorney for Clifford stated that Clifford had met with Manhattan prosecutors and agreed to “make herself available as a witness, or for further inquiry if needed” (CBS). 

March 18, 2023: In a Truth Social thread, Trump claimed that he would be arrested the following Tuesday, March 21, 2023. In a tweet, GOP House Majority Leader Kevin McCarthy separately announced that “he would direct House committees to investigate” Bragg and his office. McCarthy stated that Bragg’s potential prosecution of Trump is “an outrageous abuse of power by a radical DA who lets violent criminals walk as he pursues political vengeance against President Trump,” and that he planned to direct “relevant committees to immediately investigate if federal funds are being used to subvert our democracy by interfering in elections with politically motivated prosecutions.” Following these posts, Bragg wrote in an internal email to his staff that his office would “not tolerate attempts to intimidate our office or threaten the rule of law in New York” (Truth Social; see also Truth Social; POLITICO; CNN).

March 19, 2023: Trump commented on the Manhattan investigation in another series of Truth Social posts, claiming that Bragg was funded by billionaire George Soros and that he had no evidence of criminal wrongdoing on Trump’s part (See, for example, Truth Social and Truth Social).

March 20, 2023: Costello appeared before the Manhattan grand jury as a witness on behalf of Trump. Throughout the day, Trump continued to post about the investigation on Truth Social (PBS; Truth Social; see also Truth Social)

March 20, 2023: Congressional Representatives Jim Jordan, James Comer, and Bryan Steil (chairmen of the House Judiciary, Oversight, and Administration committees, respectively) sent a letter requesting that Bragg testify before Congress, calling the Trump investigation an “unprecedented abuse of prosecutorial authority” and a “politically motivated prosecution.” When asked about the letter, McCarthy stated that the congressmen were “just ‘asking questions.’” A spokesperson for Bragg responded to the letter the same day, stating, “We will not be intimidated by attempts to undermine the justice process, nor will we let baseless accusations deter us from fairly applying the law” (Jordan, Steil & Comer Letter #1; CNN).

March 23, 2023: Bragg’s office released a formal response to Jordan, Comer, and Steil’s request. Leslie Dubeck, general counsel for the DA’s office, told the chairmen that “they lacked a ‘legitimate basis for congressional inquiry’” but also said, “request[ed] an opportunity to meet and confer with committee staff to better understand what information the DA’s Office can provide that relates to a legitimate legislative interest and can be shared consistent with the District Attorney’s constitutional obligations.” (Manhattan DA Letter; CNN). 

• The same day, ​Trump posted an image of himself “holding a baseball bat alongside a picture of Bragg’s head” on Truth Social. The post was later deleted. In two other Truth Social posts, Trump called Bragg a “SOROS BACKED ANIMAL [sic]” and levied what appeared to be criticism of those calling for peaceful protest: “OUR COUNTRY IS BEING DESTROYED, AS THEY TELL US TO BE PEACEFUL!” (The Washington Post; The New York Times; Truth Social; Truth Social).

March 24, 2023: Trump explicitly referenced the possibility of violence surrounding his possible arrest, posting on Truth Social that the “potential death & destruction in such a false charge could be catastrophic for our Country” (Truth Social).

March 25, 2023: Jordan, Comer, and Steil sent a second letter to Bragg, saying that the potential criminal indictment of Trump “implicate[d] substantial federal interests.” That evening, Bragg tweeted a response to the chairmen, stating “We evaluate cases in our jurisdiction based on the facts, the law, and the evidence. It is not appropriate for Congress to interfere with pending local investigations. This unprecedented inquiry by federal elected officials into an ongoing matter serves only to hinder, disrupt and undermine the legitimate work of our dedicated prosecutors. As always, we will continue to follow the facts and be guided by the rule of law in everything we do” (Jordan, Steil & Comer Letter #2; CNN; Twitter).

March 25, 2023: Dubeck sent Pomerantz a letter instructing him, “as a former employee and attorney of the DA’s Office, to not provide any information or materials relating to your work in the DA’s Office in response to [the Committee’s] request” (Dubeck Letter to Pomerantz; Politico). 

March 27, 2023: Pecker reportedly testified before the Manhattan grand jury for the second time (The New York Times). 

March 27, 2023: In a letter to Jordan and the Judiciary Committee, Pomerantz informed them that he would not comply with their request that he testify voluntarily, explaining that he had previously received instructions from the DA’s office “to not provide any information of materials in response to [the Committee’s] request” (Pomerantz Letter to Judiciary Committee; Politico). 

March 30, 2023: The Manhattan grand jury voted to indict Trump on 34 felony counts of falsifying business records in the first degree under New York Penal Law §175.10 (Manhattan DA Indictment). 

March 31, 2023: Bragg’s office sent a response to the second letter (March 25th letter) to Jordan, Comer, and Steil informing them that the office filed charges against Donald Trump after the grand jury indictment and that “Congress has no warrant for interferin with individual criminal investigations-much less investigations conducted by a separate Sovereign.” Dubeck also detailed how Bragg’s office spends its limited federal funding and wrote to the Chairs that “[w]e trust you will make a good-faith effort to reac a negotiated resolution before taking the unprecedented and unconstitutional step of serving a subpoena on a district attorney for information related to an ongoing state criminal prosecution” (Bragg Second Letter to Congress).

April 4, 2023: Trump surrendered to New York law enforcement in Manhattan and was arraigned in a criminal court hearing there. During the arraignment hearing, Trump pleaded not guilty to all 34 felony counts of falsifying business records charged in the DA’s indictment. Judge Juan Merchan warned both Trump and the DA’s office during the hearing not to make any public statements that could “incite violence, create civil unrest or jeopardize the safety or well-being of any individuals” and to “not engage in words or conduct which jeopardizes the rule of law, particularly as it applies to these proceedings in this courtroom.” The indictment and accompanying statement of facts were unsealed that afternoon (Arraignment hearing transcript; CNN).

April 4, 2023: Trump returned to Florida after the arraignment. Later that evening, he hosted a gathering at Mar-a-Lago, during which he gave a speech and stated: “I never thought anything like this could happen in America, never thought it could happen. The only crime that I have committed is to fearlessly defend our nation from those who seek to destroy it…It’s an insult to our country.” In his remarks he also referred to Judge Merchan as a “Trump-hating judge” and to Bragg as a “criminal” (CNN; New York Post). 

April 6, 2023: Jordan subpoenaed Pomerantz in an effort to compel Pomerantz’s testimony before the House Judiciary Committee after he “turned down a request to voluntarily cooperate with” the congressional investigation of Bragg’s office. In the subpoena, Jordan ordered Pomerantz to sit for a deposition before the Committee on April 20 at 10:00 am (CBS News).

April 11, 2023: Bragg sued Jordan seeking a temporary restraining order to block the subpoena for Pomerantz’s testimony as well as any future subpoenas issued to him or other members of the DA’s office. The lawsuit alleged that the congressional investigation of Bragg’s office was a “brazen and unconstitutional attack” and a “transparent campaign to intimidate and attack” Bragg. The lawsuit was filed in federal court in the Southern District of New York. That afternoon, U.S. District Judge Mary Kay Vsykocil denied Bragg’s request for a temporary restraining order. She ordered that Bragg serve the complaint on Jordan by 9:00 pm that evening, and that Jordan file a response to Bragg’s complaint by April 17. Judge Vskocil also scheduled a hearing on Bragg’s complaint for 2:00 pm on April 19 (Bragg v. Jordan; Judge Vyskocil’s April 11, 2023 Order; The New York Times).

April 12, 2023: Trump sued Cohen in federal court in the Southern District of Florida requesting $500 million dollars in damages for Cohen’s alleged “breaches of fiduciary duty, unjust enrichment, conversion, and breaches of contract.” Trump’s lawyer also requested a jury trial on the matter (Trump v. Cohen; Politico; NBC News). 

April 17, 2023: Representative Jim Jordan filed an opposition to Manhattan District Attorney Bragg’s lawsuit against him, the House Judiciary Committee, and Mark Pomerantz. Jordan writes in the document, “the Constitution’s Speech or Debate Clause gives him, the committee, and Pomerantz immunity from the lawsuit, and thus Bragg’s motion should be denied.” (Jim Jordan Files Opposition to Manhattan DA Suit). In the opposition, Jordan also claims that Trump’s investigation “could be politically motivated” and that the committee is considering legislation that “would prohibit the use of federal forfeiture funds to investigate a current or former President” as well as legislation “that would expressly allow current and former Presidents and Vice Presidents to remove any criminal actions against them from state to federal court.” (House points to Jan. 6 committee in defending GOP’s right to subpoena ex-Bragg aide – POLITICO) 

April 17, 2023: Mark Pomerantz submitted a response and a declaration supporting the Alvin Bragg complaint and joined Bragg in asking the judge to block the subpoena for his testimony, saying he was “not involved in the decision to seek an indictment” of Trump since he resigned more than a year before the indictment was returned (Mark Pomerantz: Federal judge denies request to block House GOP subpoena of ex-prosecutor | CNN Politics). 

April 17, 2023: Twenty-one individuals, including four former Republican Members of Congress filed an amicus brief supporting Manhattan DA Alvin Bragg Jr. ‘s motion for “injunctive relief to quash a subpoena in the case he filed against House Judiciary Chair Rep. Jim Jordan” (Democracy 21). The brief states that “Congress has no authority to interfere with an ongoing criminal prosecution, particularly one brought by a state prosecutor. That calculus does not change just because the defendant whom a grand jury indicted happens to be a former President of the United States. Nor does it change when Members of Congress attempt to characterize their unlawful interference as ‘oversight.’” The authors also wrote that the subpoena issued by Jordan, “Threatens attorney work product privilege; Threatens the law enforcement privilege; Threatens grand jury secrecy; and Threatens the public interest and deliberative process privileges.” (Democracy 21)

April 19, 2023: Federal Judge Mary Kay Vyskocil ruled that Republican House members have a constitutional right to subpoena and question former prosecutor Mark F. Pomerantz. The Manhattan DA office responded by saying, “We respectfully disagree with the District Court’s decision,” and requested that the subpoena be paused while the ruling was appealed. The request was denied. DA Bragg’s lawyers argued that because Pomerantz has already appeared on 60 Minutes and written a book about his time working on the Trump investigation, questioning him would be about interfering with the investigation over gaining information from Pomerantz. Rep. Jordan’s lawyers asserted that the subpoena is about inspecting the use of federal funds for local investigations and the prospect of future legislation. (The New York Times)

April 19, 2023: DA Bragg and former prosecutor Mark F. Pomerantz both appealed to the U.S. Court of Appeals after Judge Vyskocil’s ruling, and were granted a temporary stay of Pomerantz’s questioning. (The New York Times)

April 25, 2023: The Manhattan DA office filed a request with Judge Juan M. Merchan to restrict Trump’s access to materials from his criminal case, and his ability to post the evidence online. (The New York Times)

April 27, 2023: Trump’s attorneys filed a request for a bill of particulars. A bill of particulars is a written itemization of the claims and/or alleged facts brought against a defendant, which a defendant will usually request when the charges or claims are unclear. The idea is that the defendant needs proper notice of the charges so that they can prepare an adequate defense. Here, Trump’s request inquired into the legal basis for felony charges of falsification of business records. (The Washington Post; NBC News)

May 4, 2023: Trump requested removal to the federal Southern District of New York. His request was based on 28 U.S.C. §1442 (a)(1), which requires removal in state criminal cases against federal officers when the alleged criminal conduct occurred while the defendant was a federal officer and under the “color of his office.” Because the state crimes which Trump allegedly committed are superseded by federal election laws with some of the same elements, Trump argued that the federal preemption doctrine applied here. Under that doctrine, Trump argued, only federal prosecutors could bring charges against him for that alleged conduct. Trump also stated in the filing that criminal charges against a former President of the United States were “unprecedented in our nation’s history,” further compelling the judge to remove the case to the Southern District of New York. 

May 8, 2023: Judge Merchan ruled, as part of a protective order, that Trump may not post any discovery materials  on “any news or social media platforms, including, but not limited, to Truth Social, Facebook, Instagram, WhatsApp, Twitter, Snapchat, or YouTube, without prior approval from the Court” (CNN).

May 16, 2023: Bragg rejected Trump’s request for a bill of particulars, arguing that he already has enough relevant information. “The 15-page, 34-count indictment and 13-page statement of facts fully inform defendant of the nature of the charges against him,” said assistant district attorney Becky Mangold. Nevertheless, Bragg released a list of statutes that may serve as Trump’s underlying crime to justify the felony enhancement.

May 23, 2023: In a hearing, Judge Merchan established the ground rules for the protective order (see May 8, 2023), and explained, “It’s certainly not a gag order,” as Trump is allowed to publicly discuss the case. The judge set the commencement of the trial for March 25, 2024.

IMAGE (L to R): Former U.S. President Donald Trump arrives during a rally at the Waco Regional Airport on March 25, 2023 in Waco, Texas (Photo by Brandon Bell/Getty Images); Former Trump Attorney Michael Cohen arrives at the district attorney’s office to complete his testimony before a grand jury on March 15, 2023 in New York. (Photo by YUKI IWAMURA/AFP via Getty Images); David J. Pecker, CEO of Hachette Filipacchi Magazines, applauds during a press conference (BOB STRONG/AFP via Getty Images);  Adult film actress Stormy Daniels (Stephanie Clifford) speaks to the media as she exits the United States District Court Southern District of New York for a hearing related to Michael Cohen, President Trump’s longtime personal attorney and confidante, April 16, 2018 in New York City. (Photo by Drew Angerer/Getty Images) 

The post Detailed Chronology in Trump-Cohen Hush Money Investigation appeared first on Just Security.

Consider what Trump had to say about former Vice President Pence. CNN’s Kaitlan Collins pointed out that Pence has blamed Trump for endangering his life. Trump interjected with a lie. “I don’t think he was in any danger,” Trump claimed.

That is clearly false. Some of Trump’s followers erected a hangman’s gallows outside of the Capitol. And the mob chanted, “Hang Mike Pence! Hang Pence!” Shortly after the Capitol was breached, Secret Service agents had to whisk Pence away to safety (which Sen. Tommy Tuberville (R-Al) told Trump as it happened). Even so, the rioters came within 40 feet of the vice president.

The main reason the rioters focused their anger at Pence was because Trump repeatedly told them that the vice president had the power to alter the outcome of the election. That is where Trump’s statements Wednesday night were important from a legal perspective.

Trump stated: Pence “did something wrong. He should have put the votes back to the state legislatures. I think we would have had a different outcome, I really do.” The reason that puts the former president in legal jeopardy is because Trump’s own legal adviser (John Eastman) admitted during an Oval Office meeting that the Electoral Count Act would not allow Pence to take such action. Trump’s remarks on CNN provide additional evidence that he does not and did not care about the scope of Pence’s actual legal authority. (One of the tells is that Trump told Collins it was Pence’s lawyers who said the proposal violated the Electoral Count Act, when the record is clear that Trump’s legal adviser also said that it did.)

The audience, made up primarily of Republican-leaning voters, loudly applauded Trump’s statement of what Pence should have done – but they were cheering for lawlessness and lies, whether they knew it or not.

To understand why, some brief context is in order — namely, this passage from Chapter 5 of the Select Committee’s final report (footnotes omitted) describing a key meeting in the Oval Office with the president, vice president, and their respective legal advisers:

On January 4, 2021, President Trump summoned Vice President Pence to a meeting in the Oval Office with John Eastman, a law professor representing President Trump in litigation challenging the election result. Eastman argued, on President Trump’s behalf, that the Vice President could take matters into his own hands during the joint session on January 6th. Eastman offered Vice President Pence two options. First, the Vice President could unilaterally reject the certified electors from several States won by former Vice President Biden, thereby handing the presidency to President Trump. Or, according to Eastman, Vice President Pence could delay the joint session to give State legislatures the opportunity to certify new electors loyal to the President. Eastman admitted, in front of the president, that both options violated the Electoral Count Act of 1887, the statute that sets forth the process for counting and disputing electoral votes during the joint session. Eastman admitted as much in a subsequent conversation with the Vice President’s staff as well.

Therefore, President Trump knew, or should have known, that this scheme was illegal—in fact, it violated the Electoral Count Act and the U.S. Constitution. President Trump repeatedly demanded that Vice President Pence go through with it anyway.

And Wednesday night on CNN, Trump repeated his illegal demand. We know from Vice President Pence’s book and other evidence that Trump and Eastman tried to get Pence to take the first option as well – that is, to unilaterally reject electors from the swing states and hand the victory to Trump. Here is how Pence writes about that same January 4, 2021, meeting in his book, So Help Me God (emphasis added):

Eastman argued that I had the authority to simply direct that electoral certificates not be counted and instead order that they be returned to the states until each state legislature certified which of the competing slate of electors for the state was correct. It was the first time I had ever heard anyone suggest that we send votes back to the states. The president and many of his defenders later repeatedly made the case that that was all I had ever been asked to do. It wasn’t.

Since I had already confirmed that there were no legitimate competing electors, I was tempted to dismiss Eastman’s proposal out of hand, but I let him drone on. He repeatedly qualified his argument with the words that it was just a legal theory, and I decided it was necessary to press him in front of the president. I was seated in my usual chair to the right of the president near the Resolute Desk, and Eastman was in the next chair to my right. I turned to him and asked, “Do you think I have the authority to reject or return votes?”

He stammered, “Well, it’s never been tested in the courts, so I think it is an open question.”

At that I turned to the president, who was distracted at the time, and said, “Mr. President, did you hear that?” He turned his attention to me, and I said, “Even your lawyer doesn’t think I have the authority to return the electoral votes.” The president nodded. As Eastman tried to get out some explanation, the president replied, “I like the other thing better,” presumably referring to his previous opinion that I could simply choose to reject electoral votes altogether. 

According to Pence, therefore, Trump acknowledged during the Jan. 4, 2021 meeting that the vice president didn’t have the legal authority to return electoral votes back to the states. Yet, Trump still demanded that he do so (and defended that unlawful option again on CNN). Trump went even further in also pressuring Pence to reject electoral votes outright (the more radical option).

There’s much more evidence concerning Trump’s pressure campaign against his own vice president. But he further damaged himself last night when it comes to that part of the criminal case.

The former president’s responses to other January 6-related questions were problematic as well. One audience member asked, “Will you pardon the January 6 rioters who were convicted of federal offenses?”

Trump responded: “I am inclined to pardon many of them. I can’t say for every single one because a couple of them probably got out of control.” He then pivoted to whataboutism-style talking points concerning Antifa.

Collins followed up, asking if Trump would even consider pardons for the four members of the Proud Boys who were convicted of seditious conspiracy and other charges earlier this month.

“I don’t know, I’d have to look at their case,” Trump replied. “But I will say, in Washington, D.C. you cannot get a fair trial. You cannot.”

It is not surprising that Trump dangled the prospect of pardons for convicted January 6th rioters. He has done so before. But now he has added the convicted Proud Boys to his list of potential pardons. And that is even more troubling. As the Department of Justice has explained, the four convicted felons “directed, mobilized, and led a group of Proud Boys and other members of the crowd onto the Capitol grounds, leading to dismantling of metal barricades, destruction of property, breaching of the Capitol building, and assaults on law enforcement.” They were the spearhead for the attack.

Following the attack on the Capitol, Trump wanted to say he would issue a blanket pardon of the rioters, but White House lawyers strongly objected, and no such statement was made. Suffice it to say, Trump’s remarks on CNN exceeded what any reasonable defense lawyer would advise him.

In another potentially incriminating exchange, Trump acknowledged his own power over the mob.

Collins asked: “Why did you wait three hours to tell them to leave the Capitol? They listen to you like no one else. You know that.”

“They do, I agree with that,” Trump said, before trying to shift the blame to then Speaker of the House Nancy Pelosi and Mayor Muriel Bower.

This is potentially important because it demonstrates, again, that Trump was aware that he could have told the mob to go home earlier and ended the insurrection, prevented further damage to the Capitol and harm to the police. The former president and his defenders like to point to a few tweets, issued during the attack at 2:38pm and 3:13pm, in which he told his followers “to support our Capitol Police and Law Enforcement” and to “Stay Peaceful!” But in neither of those tweets did the president tell the crowd to go home. (People close to the president, including his son Donald Trump Jr., pleaded for the president to say more.) He could have acted much sooner, just as Collins claimed, and many of the rioters would have listened.

It was not until 4:17pm that Trump released a video calling for rioters to go home in “peace.” Even then, however, he endorsed their cause. “I know your pain, I know you’re hurt. We had an election that was stolen from us,” President Trump said at the outset of his video. “It was a landslide election, and everyone knows it, especially the other side.”

On CNN, Trump said he was “very proud of that video” because it was a “great video” and a “beautiful video.”

Nor does the legal harm Trump did himself stop there. He also reaffirmed that he would make the damning Jan. 2, 2021 call to Brad Raffensperger again, despite the fact that it may lead to criminal charges by Fulton County DA Fani Willis this summer (and possibly by the Justice Department as well). That is important because it shows he is unrepentant, which is an added incentive for the DA to seek accountability (not as if she needed one).

Moreover, Trump also provided a window into his intent by vehemently insisting that it was a perfect phone call. As a matter of law, it absolutely was not. Once the election had been certified, as it was, that constituted electoral vigilantism and apparent criminal activity to overturn the election in Georgia.

Over the coming months, we should expect more talk along these lines from the former president. The bottom line is that he has accepted no responsibility for January 6th, he portrays the extremists and rioters who attacked the Capitol as victims, and he tries to shift blame onto others, even while recognizing that the mob was his.

IMAGE: Reporters watch a CNN town hall with former US President and 2024 Presidential hopeful Donald Trump at St. Anselm College in Manchester, New Hampshire, on May 10, 2023. (Photo by JOSEPH PREZIOSO/AFP via Getty Images)

The post How Trump’s CNN Town Hall Remarks Put Him in Greater Legal Peril for Jan. 6 Investigations appeared first on Just Security.

In November 2017, 61% of voters – including 56% of men and a nontrivial margin of white men (50-43) and white women (55-37) – said then-President Trump should be impeached and removed from office if he were proven to have engaged in “sexual harassment,” according to a Quinnipiac poll. That overall support – the eye popping number of 61% – was higher than any poll tracking public support for impeachment and removal from office for the scandalous conduct in Trump’s first and second impeachments (see Five Thirty-Eight’s complete collection of surveys for the first and second impeachment). What’s more, Quinnipiac asked only about sexual harassment not sexual assault in the case of Trump. The latter, which is also the core crime in the E. Jean Carroll verdict, would have presumably produced even greater levels of support for removal from office. 

The Quinnipiac poll was not alone.

A December 2017 Public Policy Polling survey found 53% of voters thought Trump should resign because of the “allegations” of sexual harassment against him, and another Quinnipiac poll in December 2017 found that 50% of voters already thought Trump should resign because he had “been accused of sexual harassment and sexual assault by multiple women.” (See appendix below for the exact wording and results of each of these surveys.)

These results are no surprise when taken in context of recent social science studies. Rigorous empirical research shows that Americans generally consider sexual assault incompatible with serving in elected office or positions of public trust (see e.g., Savani and Collignon, 2023; Stark and Collignon, 2022; Masuoka, Grose and Junn, 2021; Craig and Cossette, 2020). A 2020 study in the journal Political Behavior found that “(1) a significant electoral penalty is likely to be assessed against politicians accused of sexual harassment; (2) the size of that penalty (in terms of lost votes and lower favorability) … is concentrated among co-partisans and, to a lesser extent, Independents.” That study, like many others, concerned “accusations” and “allegations” of misbehavior; the results are likely to be even more pronounced in the event of allegations being proven – especially in a court and especially by a unanimous verdict.

A number of caveats and qualifications are worth mentioning however as we consider the potential damage to Trump.

First, Republicans are less likely to electorally punish their own party candidates who face sexual harassment or sexual assault allegations, according to research findings. For Trump, that may mean less of a political cost in the primary election season than in the general. That said, Republican women are more likely than Republican men to do so. What’s more, some Republican primary voters may also look over the horizon at how voters in the general election will react to his having been proven to have committed sexual assault and accordingly wish to select a more competitive nominee for their party. 

Second, while there are many cases of Republican and Democratic elected officials being compelled to resign or being electorally defeated following public allegations of sexual harassment or sexual assault, there are also counterexamples. One prominent counterexample is Trump himself in the 2016 campaign. What makes Trump’s victory even more complicated is that notable percentages of his supporters believed the allegations to be true, as William Saletan documented in 2017. 

That being said, multiple factors seem to distinguish the allegations in Trump’s 2016 campaign from the Carroll verdict in 2024, and ultimately constitute bad news for the former president.

Factor one: There is a difference between a belief that something is true, and proven confirmation by a unanimous jury verdict that it is so. Indeed this was a jury verdict following a full-blown trial in which Trump’s attorneys had the opportunity to challenge the specific allegations. The Carroll case also involved jurors’ assessment not only of the evidence of her sexual assault, but also of two other witnesses who testified that Trump sexually assaulted them. In other words, the verdict is a reflection of the allegations of three women.

Factor two: The difference between sexual assault and sexual harassment, cuts against Trump. Several (but not all) of the surveys discussed by Saletan in 2017 asked respondents about allegations of “inappropriate behavior,” “unwanted sexual advances,” and “unwanted advances on different women.” The respondents were not asked about allegations of sexual assault, which presumably would have given them greater pause on whether to vote for Trump. 

Factor three: There may be a difference in how voters assess Trump on these issues of sexual harrassment and sexual assault when comparing him to the alternative candidate for office – Hillary Clinton in the case of the 2016 election. Indeed, that may help explain why some Republicans were willing to vote him into office in 2016, but some of Trump’s 2016 voters supported his resigning from office on the basis of the mere allegation of sexual harassment (7% in one study, 12% in another) and a larger percentage of Republicans (28%) supported his impeachment and removal from office if allegations of sexual harassment were proven. 

In deciding whether to vote for him in 2016, the alternative was a Hillary Clinton presidency. In the case of removal from office, the alternative was Mike Pence. If the alternative option helps explain the difference, it could spell a negative fate for Trump in the current presidential primary, where voters can choose a different Republican. 

Factor four: A difference between 2016 and 2024 is the advent of the #MeToo movement following the women who stepped forward in 2017 to report on sexual assault by Harvey Weinstein. That movement has helped shape the public conscience over a short period of time, and demonstrated an ability to “limit motivated reasoning” and “temper partisan biases” when individuals’ assess politicians’ misconduct (Klar and McCoy, 2021).

The question of course is to what extent any of these voter preferences against the kind of behavior here at issue would translate into electoral outcomes. One need only look at voters’ overwhelming support for certain gun reforms — and the absence of any corresponding legislation — to understand the gap between voter preferences and political outcomes. There are many structural impediments to the expression of democratic choices in U.S. elections that go beyond the subject matter of this essay. It is notable, however, that a candidate’s having engaged in sexual assault has in many instances proven fatal to their holding public office. 

* * *

With #MeToo translated into the political arena, many Americans have shown they are not willing to support a candidate for elected office who has committed sexual assault – with the understanding that such a severe abuse of power is simply disqualifying for holding a position of public trust. Time will tell if the E. Jean Carroll sexual assault verdict has the effect that a large majority of Americans said they wanted in 2017, namely, to deny the presidency to Trump if the allegation that he had engaged in such abominable conduct was proven. It now has been.

Cited Academic Works

Stephen C. Craig and Paulina S. Cossette. “Eye of the beholder: Partisanship, identity, and the politics of sexual harassment.” Political Behavior 44, no. 2 (2022): 749-777.

Samara Klar and Alexandra McCoy. “Partisan‐motivated evaluations of sexual misconduct and the mitigating role of the# MeToo movement.” American Journal of Political Science 65, no. 4 (2021): 777-789.

Natalie Masuoka, Christian Grose, and Jane Junn. “Sexual harassment and candidate evaluation: Gender and partisanship interact to affect voter responses to candidates accused of harassment.” Political Behavior (2021): 1-23.

Manu M. Savani and Sofia Collignon. “Values and candidate evaluation: How voters respond to allegations of sexual harassment.” Electoral Studies 83 (2023).

Stephanie Stark and Sofia Collignon. “Sexual Predators in Contest for Public Office: How the American Electorate Responds to News of Allegations of Candidates Committing Sexual Assault and Harassment.” Political Studies Review 20, no. 3 (2022): 329-352.

Jamillah B. Williams. “#MeToo and Public Officials: A post-election snapshot of allegations and consequences,” Georgetown University Law Center (2018).

Appendix: Polling Questions and Results

The post Why the E. Jean Carroll Verdict Will Matter to Voters appeared first on Just Security.

Check out our new addition below: A curated repository of deposition transcripts from the House Select Committee.

Readers may also be interested in Major Highlights of the January 6th Report.

If you think the January 6 Clearinghouse is missing something, please send recommendations for additional content by email to Jan6Clearinghouse@justsecurity.org. 

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The editors are especially grateful for the extraordinary assistance of Clara Apt.