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.

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.

Twenty (20) January 6th inmates were held in D.C. as of Mar. 13, 2023, according to  the Washington, D.C. Department of Corrections’ official list, which Just Security has obtained. Below, we present an analysis showing that all of them have been charged with committing serious criminal offenses on Jan. 6, 2021. Seventeen (17) of the twenty inmates are accused of assaulting law enforcement officers during the attack on the U.S. Capitol. The remaining three inmates, which include a Proud Boys member and an Oath Keepers member,  have all been charged with committing other serious crimes on Jan. 6, 2021, and one of them has already been convicted.  

On Mar. 9, 2023, Representatives Greene, Comer, and Clay Higgins (R-La.) sent a letter to Washington, D.C.’s mayor, Muriel Bowser, requesting that arrangements be made for a “congressional delegation to visit” the detention facilities where January 6th defendants are held. The representatives stated that they are also seeking “certain documents and information” regarding the D.C. jail facilities, as well as access to “detainees” and “employees” for the purpose of conducting interviews.

Congresswoman Greene has long sought to portray the January 6th defendants as victims of the D.C. government and U.S. Department of Justice. She has, for example, repeatedly described defendants held in pre-trial custody as “political prisoners of war.” As outlined in the letter he co-signed, Congressman Comer has apparently greenlit an investigation along the lines Greene sought. The representatives write that they are “concerned by reports that January 6 detainees are facing a unique form of mistreatment due to their politics and beliefs,” adding this may amount to “potential … human rights abuses.” They also claim that the January 6th inmates may be subjected to “disparate treatment.”

Earlier this month, a federal judge, appointed by President Donald Trump, reportedly rejected a similar line of argument when Christopher Quaglin, an alleged member of the Proud Boys who is accused of assaulting law enforcement officers on Jan. 6, sought pretrial release.

Throughout their letter, the three representatives refer to the January 6th inmates as “detainees,” even though they are in the custody of the criminal justice system and many of them have pleaded guilty or otherwise been convicted. Curiously, the congressional representatives do not identify any of the inmates.

Just Security is able to do so based upon the D.C. Department of Corrections’ official list of the twenty January 6th inmates held as of Mar. 13, 2023. Short descriptions of the charges and evidence levied against all twenty defendants are provided below. The allegations are drawn principally from court filings and online summaries provided by the Department of Justice. In some instances, press reporting is also cited to provide additional context.

Some highlights:

Nine (9) of the twenty (20) January 6th inmates have already been either convicted or pleaded guilty to at least some of the charges against them. For the eleven (11) defendants who have not yet been tried or accepted a plea deal, it is important to remember that they are presumed innocent until proven guilty in a court of law. And all inmates deserve humane treatment under human rights law and the U.S. Constitution.

As mentioned above, seventeen (17) of the twenty (20) January 6th inmates are accused of assaulting law enforcement officers during the attack on the U.S. Capitol. Of these 17 defendants, six (6) have already pleaded guilty to charges, including assaulting police officers. Another two (2) of the 17 have been convicted at trial for assaulting law enforcement officers, as well as other crimes.

The remaining three (3) January 6th defendants who have not been accused of physically assaulting law enforcement officers include: William Chrestman, an alleged member of the Proud Boys who is charged with conspiring to obstruct or impede an official proceeding, threatening a federal officer, and carrying a deadly or dangerous weapon onto the Capitol grounds, among other charges; Jessica Watkins, a member of the Oath Keepers who has been convicted of conspiracy to obstruct an official proceeding and interfering with law enforcement officers during a civil disorder, as well as other charges; and Eric Christie, who has been charged with multiple crimes, including entering and remaining in a restricted building with a deadly weapon and disorderly or disruptive conduct in a restricted building with a deadly weapon.

As detailed in the short descriptions below, the January 6th inmates held by the D.C. Department of Corrections include individuals who are alleged to hold extremist or white supremacist and/or conspiratorial beliefs. Some are members of, or affiliated with, known violent extremist organizations such as the Proud Boys, Oath Keepers, and the Three Percenters. These organizations are discussed in Chapter 6 of the January 6th Select Committee’s final report. Others have allegedly endorsed white nationalist or anti-Semitic conspiracy theories. At least one of them reportedly wore an InfoWars hat and backpack during the attack.

It is likely that the January 6th defendants held in Washington, D.C. and elsewhere will continue to be the subject of interest. In addition to the investigation announced by the Committee on Oversight and Accountability, former President Donald Trump was recently featured in a recording alongside the “J6 Prison Choir.” Members of this “choir” reportedly performed “The Star-Spangled Banner” from a jail in Washington. Their recording was mixed with audio of Trump reciting the Pledge of Allegiance. The choir’s members were not identified but may include some of the defendants currently held in Washington. Echoing the words of Tucker Carlson, Trump has called January 6th inmates “political prisoners” who are being subject to “persecution,” and said he would issue “full pardons with an apology to many.”

All 20 of the current inmates in the D.C. facility are listed below.  

We have added emphasis in bold text throughout the profiles. The emphasis is not from the original source documents. All photographs are from the Justice Department’s court filings.

1. Thomas Ballard

Status: Charged with assaulting law enforcement officers, among other crimes

IMAGES (L to R): Ballard in an “Infowars” baseball hat; Ballard throwing a tabletop at the police officers defending the Lower West Terrace archway, with the desktop circled in red; Ballard using a baton to assault the police officers defending the Lower West Terrace archway, with Ballard circled in red and an arrow pointing at the baton. (via Statement of Facts)

Ballard, of Fort Worth, Texas, has been charged with assaulting, resisting or impeding officers using a dangerous weapon, among other crimes. Citing video from the attack, the Department of Justice alleges that Ballard positioned himself “at the front of the rioters confronting U.S. Capitol Police and Metropolitan Police Department officers who were defending the lower west terrace archway.” In a Statement of Facts prepared for Ballard’s case, an FBI agent cites screenshots from videos recorded outside of the archway, in addition to other evidence. One screenshot allegedly shows Ballard throwing a tabletop at police officers. Other screenshots show Ballard assaulting officers with a baton. The FBI agent also noted that Ballard is wearing an “InfoWars” hat and “tan backpack” during the riot.

2. William Chrestman

Status: Charged with conspiring to obstruct or impede an official proceeding, threatening a federal officer, and carrying a deadly or dangerous weapon onto the Capitol grounds and into the building, among other charges

IMAGES (L to R): Chrestman in a green tactical vest;  Chrestman advancing toward the metal gate, with his black helmet circled in yellow; Chrestman attempting to stop metal barriers from closing with a wooden club or axe handle. (via Affidavit)

The Department of Justice alleges that Chrestman, of Olathe, Kansas, and three others in his group were members of the Proud Boys’ Kansas City Chapter. They allegedly “planned with each other, and with others known and unknown, to enter the Capitol forcibly on January 6, and to stop, delay, and hinder the Congressional proceeding occurring that day.”

An FBI agent filed an affidavit in the case, citing multiple screenshots of Chrestman from video footage recorded during the attack on the Capitol. Chrestman and others allegedly “moved to the front of the crowd during the initial confrontation with law enforcement” just outside of the Capitol. Chrestman and others moved past this first barrier. Chrestman then allegedly stood “directly in front of Capitol Police officers who were attempting to guard the Capitol.” Chrestman yelled at the officers, “You shoot and I’ll take your fucking ass out!” Chrestman also allegedly encouraged others to prevent police officers from arresting a member of the crowd, saying: “Don’t let them take him!”

The affidavit describes another scene in which Chrestman addressed the crowd. “Whose house is this?” Chrestman shouted. Members of the crowd responded, “Our House!” Chrestman asked, “Do you want your house back?” The crowd responded, “Yes!” Chrestman then shouted, “Take it!” After the Capitol was overrun, Chrestman and others in his group allegedly worked to “prevent law enforcement from securing areas of the Capitol against unlawful entrants.” Officers attempted to lower metal barriers to control the building and prevent rioters from advancing. One screenshot in the affidavit shows Chrestman obstructing the “metal barriers with a wooden club or axe handle.” This same blunt object “was initially disguised as a blue flag.” 

Note: A fellow member of the Kansas City Proud Boys Chapter, Louis Enrique Colon, has pleaded guilty “to a felony charge for obstructing law enforcement officers during the breach of the U.S. Capitol on Jan. 6, 2021.” Colon was initially charged alongside Chrestman. 

3. Eric Christie

Status: Charged with multiple January 6-related crimes, including entering and remaining in a restricted building with a deadly weapon and disorderly or disruptive conduct in a restricted building with a deadly weapon

IMAGES (L to R): Christie outside of the United States Supreme Court in Washington D.C.; Christie addressing the croud through his bullhorn; Christie standing on a vehicle and yelling into his bullhorn. (via Statement of Facts)

According to a Statement of Facts prepared by an FBI agent, Christie was identified by online sleuths. Publicly available videos on YouTube allegedly show him inciting members of the crowd.  Christie was part of “a group of people running towards the front of the crowd as they push through a police line and barriers erected on the East side of the Capitol building.” Christie “can be seen running past people in an effort to make his way to the front of the crowd that is moving towards the East side of the Capitol.”

Video allegedly shows Christie “running up the East side steps as police officers are retreating up the steps and attempting to hold a line.” Christie implored the crowd, yelling through his bullhorn, “this is our Capitol.” Another video shows him saying “it’s a MAGA party, it’s a MAGA party,” “welcome to MAGA country, District of Columbia,” “come on, you can come up…It’s your house,” “You’re invited, it’s your house,” and “Beverly Hills in the house.” In some of the clips, Christie incites the crowd while standing on top of a government vehicle. Images of Christie show what appears to be a hammer tucked into his belt at the time.

In December, Christie was arrested in California after a reportedly hours-long “standoff with law enforcement.”  

4. David Dempsey

Status: Charged with assaulting law enforcement officers, among other crimes

IMAGES (L to R): Dempsey standing in front of the gallows, wearing black googles and a flag gaiter; Dempsey attacking law enforcement officers in the tunnel in front of the West Terrace entrance; Officers attempt to blockade Dempsey from entering the tunnel. (via Statement of Facts)

Relying on evidence collected by seditionhunters.org and other sources, the Department of Justice alleges that Dempsey used “various objects, including a crutch and a metal pole, as bludgeoning weapons or projectiles against the line of law enforcement officers protecting the tunnel in front of the west terrace entrance.” Video footage also shows “Dempsey spraying officers with what appears to be a lacrimal agent.”

Online sleuths tagged Dempsey, of Van Nuys, California, as #FlagGaiterCopHater. Though he wore “various outfits” on January 6, Dempsey “predominantly” wore “a black shirt, dark helmet, goggles and an American flag gaiter covering most of his face.” The Statement of Facts authored by an FBI agent for Dempsey’s case cites a video recording of a “monologue” Dempsey gave “in front of a wooden structure representing a gallows fitted with a noose.” Dempsey said:

Them worthless fuckin’ shitholes like Jerry Nadler, fuckin’ Pelosi…They don’t need a jail cell. They need to hang from these motherfuckers [pointing to gallows]. …They need to get the point across that the time for peace is over. …For four, or five years really, they’ve been fuckin’ demonizing us, belittling us, …doing everything they can to stop what this is, and people are sick of that shit. …Hopefully one day soon we really have someone hanging from one of these motherfuckers…

5. Kyle Fitzsimons

Status: Convicted of seven felony charges, including assaulting law enforcement officers, as well as four misdemeanor charges

IMAGES (L to R): Fitzsimons clubbed in the head and bleeding; Fitzsimons charging at a police line and engaging with officers, with his body circled in red. (via Statement of Facts)

Fitzsimons, of Lebanon, Maine, was convicted of 11 charges in September 2022. According to the DOJ, Fitzsimons was among the rioters who confronted “law enforcement officers at the tunnel area of the Lower West Terrace of the Capitol Building.” He “was wearing a white butcher’s jacket and a fur pelt and carrying an unstrung bow” at the time.

Fitzsimons “committed five assaults against law enforcement officers,” including by: hurling an “unstrung bow like a spear” at officers, making “forcible contact” with a Metropolitan Police Department (MPD) detective “immediately before another rioter sprayed him with a chemical agent,” trying “to pull a fallen officer into the mob,” grappling with a “sergeant from the U.S. Capitol Police” who “tried to protect the fallen officer,” and twice charging a “group of officers, wildly swinging his fists.” One of the officers Fitzsimons assaulted required shoulder surgery.

Fitzsimons was interviewed by the The Rochester Voice after he participated in the Capitol riot. He cited the speeches given by President Trump, Mayor Rudy Giuliani and others at the rally held at the White House Ellipse on Jan. 6. “The speeches from the morning were overtly preaching the election was not over, there was a path to victory through decertification, there was a plan to delay the certification by the House and Senate and then state legislatures would convene and (certify) the right result,” Fitzsimons noted.

The Statement of Facts filed by the government in Fitzsimons’ case includes multiple screenshots from video recordings of the January 6, 2021, attack. One of the screenshots shows Fitzsimons charging and swinging at police officers. Another image shows blood running down his face. In addition, a statement posted on Facebook, and attributed to Fitzsimons, shows that he believed the 2020 presidential election “was stolen.”

As reported by CNN, Fitzsimons made various “racist and xenophobic remarks,” while also endorsing the “great replacement theory,” in a speech  in front of the Maine legislature in 2017 during a public hearing for a proposed bill that would have expanded funding for teaching immigrants English. The “great replacement theory,” which is often espoused by white nationalists, holds that people of European descent are purposely being replaced by new non-white immigrants as part of a conspiracy against white people. 

6. Robert Gieswein

Status: Pleaded guilty to two counts of assaulting, resisting, or impeding certain officers

IMAGES (L to R): Gieswein standing in the crowd and brandishing a baseball bat; Gieswein forcibly entering the Capitol through a broken window; Gieswein storming the halls of the Capitol building; Gieswein helping a crowd of people lift and force a temporary barrier against a crowd of U.S. Capitol Police officers. (via Statement of Offense)

Gieswein, of Woodland Park, Colorado, pleaded guilty to felony charges earlier this month. Relying on court filings, the DOJ has traced Gieswein’s actions on January 6. Gieswein was “dressed in a camouflage paramilitary kit” and carried a baseball bat throughout the day. That morning, he met with a group of Proud Boys who befriended him. He marched with the Proud Boys and others from the Washington Monument to the U.S. Capitol, around the building, and then to the Peace Monument. As documented in Chapter 8 of the House January 6th Select Committee’s final report, the Proud Boys and their associates instigated the initial attack on the Capitol just in front of the Peace Monument. Gieswein “rushed into the restricted area of the Capitol grounds” after the rioters knocked down police officers and removed security barriers at that location.

In the Capitol’s West Plaza, Gieswein joined others in “pushing on a barricade held by police that they were using to set a line between themselves and the rioters.” He also “threw a water bottle at a line of police officers.” Gieswein again joined members of the mob as they pushed up the “stairs under the Inauguration scaffolding that led from the West Plaza to the Upper West Terrace.” He then “sprayed an aerosol irritant at three members of the U.S. Capitol Police, who were attempting to prevent the crowd from further advancing towards the Capitol building.” Gieswein sprayed “his aerosol substance” at other officers, including one who was injured. Gieswein also got into a “scuffle” with officers, and “attempted to punch” one of them, as they tried to arrest him.

Gieswein “was one of the first rioters to enter” the Capitol after it was breached at 2:13 p.m. He climbed through a Senate Wing window that Dominic Pezzola, a Proud Boy, smashed in with a stolen riot shield. Inside the Capitol’s Rotunda, Gieswein “participated with other rioters in pushing against a group of police officers who were trying to prevent the rioters from advancing up a hallway that led to Speaker Pelosi’s office.” The rioters failed, and Gieswein exited the Capitol not long after.

The Statement of Offense filed in Gieswein’s case includes photos and screenshots from videos. Those images show Gieswein pushing on police security barriers, entering through the Senate Wing Window, and standing inside the Capitol next to Pezzola, among other scenes. The Statement of Offense also cites an interview Gieswein gave on Jan. 5, during which he endorsed “anti-Semitic conspiracy theories.” 

7. Shane Jenkins

Status: Charged with multiple crimes, including assaulting, resisting, or impeding certain officers using a dangerous weapon

IMAGES (L to R): Jenkins confronting officers outside the Embassy Suites Hotel; Jenkins, circled in red, throws objects at the USCP and MPD officers; Jenkins throws a desk drawer, circled in red, at the USCP and MPD officers. (via Statement of Facts)

In a Statement of Facts prepared for Jenkins’ case, an FBI Special Agent relied on publicly available videos on Twitter and other evidence. One such video allegedly shows “an individual, resembling” Jenkins, who “removes a metal survival hatchet out of a backpack, puts on black gloves, and uses the hatchet to hit a window to the left of the Lower West Terrace tunnel.” The Statement of Facts also cites “security camera footage and body-worn camera” footage recorded by the U.S. Capitol Police (USCP) and Metropolitan Police Department (MPD), respectively. This footage allegedly shows Jenkins “retrieving objects from the ground and throwing them at USCP and MPD officers stationed in the entranceway” to the tunnel. These items include “a pole, a desk drawer, some type of pipe/metal rod, and a flagpole.” These items allegedly “land on top of the heads of several of the MPD and USCP officers inside the entranceway tunnel.” Separately, Jenkins was recorded on a camera worn by an MPD officer who was enforcing a curfew in Washington, D.C. on the night of Jan. 6. The camera recorded Jenkins confronting officers outside the Embassy Suites Hotel. 

8. James McGrew

Status: Pleaded guilty to assaulting, resisting, or impeding officers and has been sentenced to 78 months in prison

IMAGES (L to R): McGrew, circled in red, wearing a white t-shirt and a grey, black, and white jacket; McGrew screaming at law enforcement officers; McGrew, circled in red, atop a crowd of people. (via Statement of Facts)

McGrew, of Biloxi, Mississippi and Carlsbad, California, pleaded guilty in May 2022 to assaulting law enforcement officers on Jan. 6. In January 2023, he was sentenced to 78 months in prison, plus 36 months of supervised release, as well as ordered to pay a $5,000 fine and $2,000 restitution.

According to the Justice Department’s summary of McGrew’s actions, he “engaged in a series of confrontations with law enforcement officers on Jan. 6.” McGrew pushed “one officer and struck another” inside the Capitol’s Rotunda, “struck” another officer and “lunged for the officer’s baton,” and “engaged in an altercation with yet another officer.”

After being forced out of the Capitol, McGrew helped others attack officers “attempting to secure the Lower West Terrace tunnel entrance to the building.” Another rioter “handed McGrew a wooden handrail with metal brackets attached.” McGrew threw the handrail into the tunnel, with the metal brackets in front, “towards law enforcement officers.” The “handrail appeared to hit the shield or visor of an officer.” McGrew then joined in the crowd pushing and gaining access into the tunnel area until being pushed out by officers.

The Statement of Facts prepared for McGrew’s case cites video footage from the attack, including a recording by a Metropolitan Police Department (MPD) officer’s body worn camera. The video shows McGrew inside of the U.S. Capitol “aggressively” approaching officers, yelling “we’re coming in here, whether you like it or not” and “fight with us, not against us.” While holding up his phone, McGrew also named the officers standing before him and their badge numbers. Other images cited in the Statement of Facts show McGrew “scream[ing] at law enforcement officers.” When one officer “calmly” asked McGrew to leave, McGrew yelled in response: “You leave. You leave. This is our house.”  

9. Sean McHugh

Status: Charged with several federal offenses, including assaulting a law enforcement officer with a deadly or dangerous weapon

IMAGES (L to R): Close-up photograph of McHugh’s face; McHugh, circled in yellow, shooting officers with a yellow spray; McHugh scuffling with an officer in an attempt to defeat a barricade. (via Statement of Offense)

According to the Department of Justice, a Metropolitan Police Department (MPD) officer’s body worn camera allegedly recorded McHugh “assaulting multiple U.S. Capitol Police (USCP) officers” on Jan. 6. The footage was recorded on the Capitol’s Lower West Terrace. In the audio portion, McHugh is heard saying: “You’re protecting communists!;” “There is a second amendment behind us, what are you going to do then?;” and “You ain’t holding the line!” McHugh is accused of helping to push a “large metal sign into a line of uniformed police officers.” While the crowd pushed the sign, he yelled through his megaphone: “Put it up there! Put it up there!”

A Statement of Offense, filed by an FBI Special Agent, contains images that allegedly show McHugh assaulting officers and inciting the crowd. Some of the screenshots allegedly show McHugh “shooting officers with a yellow spray,” which had been holstered at his right hip. These images have been collected online by seditionhunters.org.

Footage recorded by the MPD allegedly shows McHugh yelling into a megaphone: “You guys like protecting pedophiles?” According to CBS News and the New York Daily News, McHugh was previously convicted of statutory rape.

10. Jeffrey McKellop

Status: Charged with multiple crimes, including assaulting, resisting, or impeding certain law enforcement officers using a dangerous weapon, inflicting bodily injury

IMAGES (L to R): Close-up photograph of McKellop’s face; McKellop wearing ballistic armor and a protective mask; McKellop physically assaulting an MPD officer. (via Statement of Offense)

According to a Statement of Facts, McKellop is charged with assaulting four Metropolitan Police Department (MPD) officers with a flagpole outside the U.S. Capitol on Jan. 6. One of the officers McKellop allegedly assaulted is a sergeant who suffered a “laceration near the left eye.”

Witnesses identified McKellop as a retired U.S. Army Special Forces soldier and military contractor. And one of the witnesses told authorities that the “kit” McKellop wore, “specifically the helmet and ballistic vest,” was the “same gear” he wore in “an overseas combat zone in 2018.” He also wore a gas mask. The flagpole he carried had “at least two different types of flags attached,” one of which was styled after the “Betsy Ross” flag with the words “Trump. Keep America Great” printed on it, and the second a “Blue Line National Flag.”

The Statement of Facts cites multiple images from Jan. 6, including screenshots from video recorded on the U.S. Capitol Police’s (USCP) surveillance cameras, as well as MPD body worn cameras. The MPD footage allegedly captured McKellop assaulting officers.

11. Jonathan Mellis

Status: Charged with multiple crimes, including assaulting, resisting, or impeding certain officers using a dangerous weapon

IMAGES (L to R): Mellis wearing a cowboy hat and black glasses; Collection of Facebook images posted by Mellis; Mellis repeatedly striking and making stabbing movements towards the officers with  a stick in his hand. (via Statement of Facts)

According the Statement of Facts, Mellis posted on Facebook under an account named “Jon Gennaro.” One post, containing pictures of Mellison on the grounds of the U.S. Capitol and inside the west-facing entryway to the U.S. Capitol Building during the Jan. 6 attack, he captioned, “Storming the Castle.” He added several other sentences, such as: “We want a forensic audit of the vote” and “We will not go away. We will not surrender.” In another Facebook message, Mellis wrote: “Don’t you dare try to tell me that people are blaming this on antifa and BLM. We proudly take responsibility for storming the Castle.”

The Statement of Facts cites footage recorded by Metropolitan Police Department (MPD) body-worn cameras, as well as other images. Mellis allegedly took a stick from another individual, approached officers, and can be heard saying “Knock their masks off.” A video captures Mellis “repeatedly striking and making stabbing movements towards the officers with the weapon in his hand.” And Mellis “appears to be making at [sic] contact or attempting to strike the officers’ necks between their helmets and body-armor where they are not protected.” The FBI Special Agent who wrote the Statement of Facts adds: “Based on your affiant’s training and experience, forceful strikes to the neck with (or without) the aid of a weapon to enhance impact is more than sufficient to cause serious physical injury or death.”

12. Garret Miller

Status: Pleaded guilty to assaulting a police officer, among other charges, and was sentenced to 38 months in prison

IMAGES (L to R): Miller wearing a pro-Trump hat, with a statue from the Rotunda behind him; Miller in a crowd, pushing past officers to gain entrance to the U.S. Capitol. (via Statement of Facts)

Miller, of Richardson, Texas, pleaded guilty to multiple charges in December 2022. According to the Justice Department’s summary of his case, Miller pleaded guilty to “assaulting a police officer,” making an “interstate threat to injure or kidnap,” and “three counts of interfering with law enforcement during a civil disorder,” among other charges.

Miller “was obsessed with the results of the 2020 presidential election” and believed “it had been stolen.” He traveled to Washington, D.C. with a “rope, a grappling hook, a mouth guard, and a bump cap,” which he described as “riot gear,” to “stop Congress’ certification of the 2020 presidential election.” Miller said he “looked forward” to fighting the “soft” people. 

Miller “was at the forefront of every barrier overturned, police line overrun, and entryway breached within his proximity that day,” according to the DOJ. Officers detained Miller twice, but they released him after he vowed to leave. He stayed at the Capitol instead and “record[ed] himself talking about a revolution.” The DOJ says that Miller assaulted officers inside the U.S. Capitol’s Rotunda. He assaulted a Metropolitan Police Department (MPD) Sergeant, and “engaged in a physical altercation with no fewer than six officers.”

On social media, Miller threatened Senator Charles Schumer, Congresswoman Alexandria Ocasio-Cortez, Mark Zuckerburg, and Jack Dorsey. In response to Ocasio-Cortez’s social media post to “Impeach” Trump that day, Miller responded: “Assassinate AOC.” The DOJ says he boasted to his friends about how he “terrified [c]ongress” and wanted to “start assassinating” people. He also openly “discussed his desire” to find the officer who shot January 6 rioter Ashli Babbitt, and “hug his neck with a nice rope.” When he was arrested, Miller was wearing a shirt with former President Trump, as well as the words “I was there, Washington, D.C., January 6, 2021,” on it.

The Statement of Facts cites multiple images of Miller inside and outside the Capitol on January 6. Some of the images were posted by Miller himself on social media, including a Facebook photo of Miller standing next to another person inside the Capitol’s Rotunda. Other images were recorded by the U.S. Capitol Police’s (USCP) surveillance cameras. Miller’s social media presence was repeatedly cited as evidence against him. For example, he disputed those who claimed infiltrators, “not Patriots,” were responsible for the attack, tweeting: “Nah we stormed it.”

13. Jorden Mink

Status: Pleaded guilty to the felony charge of assaulting, resisting, or impeding certain officers using a dangerous weapon, as well as other charges

IMAGES (L to R): Mink using a baseball bat to shatter a window at the Capitol; Screenshot of an Instagram post, which features Mink holding a firearm. (via Affidavit)

Mink, of Oakdale, Pennsylvania, pleaded guilty to several charges in January 2023. According to the Justice Department’s summary of his case, Mink “used a baseball bat to shatter a window in the Capitol Building,” and also attempted to shatter “an adjacent window.” He climbed through the window he smashed and handed property from inside the Capitol to others outside. The DOJ cites video surveillance showing Mink engaged “in assaultive conduct, spitting at officers guarding one of the doors and then throwing several objects at them – including a traffic cone, a large rectangular-shaped object (possibly a step or drawer), and a stick.” Mink also used a “long pole” to “violently and repeatedly strike at the officers at” an entrance to the Capitol, “hitting their shields at least five times.”

In an affidavit, an FBI Special Agent cites publicly available video and images, including screenshots of Mink smashing a window on the U.S. Capitol and some of his Instagram posts.

14. Joseph Padilla

Status: Charged with multiple crimes, including assaulting, resisting, or impeding certain officers using a dangerous weapon

IMAGES (L to R): Padilla wearing a scuba mask over his eyes and a black backpack on his back; Padilla, circled in red, grabbing a metal sign and using it as a battering ram against MPD officers; Padilla, highlighted in the red rectangle, throwing a flagpole at officers. (via Statement of Facts)

An FBI Special Agent’s Statement of Facts cites multiple images of Padilla on Jan. 6. Those images include screenshots from video recorded on Metropolitan Police Department (MPD) officers’ body-worn cameras, as well as from publicly available videos. Padilla allegedly pushed on a police barricade, shouting: “Push! Push! Fucking push!” He also allegedly helped other rioters use a large metal Trump sign as a “battering ram against” MPD officers who were “attempting to hold” a security line. Another video, taken from jrobertson.nyc, shows Padilla throwing a flagpole at officers stationed at the U.S. Capitol’s Lower West Terrace Doors.

The Statement of Facts cites Padilla’s social media posts on Facebook, as well as posts attributed to him on TheDonald.win. In a Jan. 7 Facebook post, Padilla disputed claims that “Antifa provacateurs [sic]” were responsible for the January 6th attack, writing “I just want to say that as a first hand observer of every point last night, that it was not Antifa.” He wrote that “Patriots who were trying to Restore the Republic” were responsible and blamed the cops for supposedly striking first. Padilla also allegedly made several incriminating posts on TheDonald.win, including one that read:

If we could have occupied the Capitol, we could have invoked the right given to us in the 2nd paragraph of the Declaration of Independence….We would have been in the Seat of Power. All we would need to do is declare our grievances with the government and dissolve the legislature, and replace it with Patriots who were there. Then simply re-adopt the Constitution with amendments added to secure future Federal elections.

As documented in Chapter 6 of the January 6th Select Committee’s final report, multiple users on TheDonald.win discussed “occupying” the Capitol prior to the joint session of Congress. They also openly planned for violence. TheDonald.win was a far-right superfan site for former President Trump.

15. Christopher Quaglin

Status: Charged with multiple crimes, including assaulting, resisting or impeding certain officers using a dangerous weapon

IMAGES (L to R): Close-up photograph of Quaglin’s face; Quaglin, highlighted in the red rectangle; using a stolen shield to push up against law enforcement officers; Quaglin, highlighted in the red rectangle, hitting an MPD officer with the stolen shield; A red arrow points to Quaglin, who physically pushes and wrestles with a USCP officer. (via Affidavit)

According to the Justice Department’s summary, Quaglin, of North Brunswick, NJ, allegedly assaulted “several” U.S. Capitol Police (USCP) and Metropolitan Police Department (MPD) officers on Jan. 6. The charging documents cite USCP surveillance video, footage recorded on MPD body-worn cameras, as well publicly available video. Quaglin was recorded approaching the police line and allegedly shouted at MPD officers, “You don’t want this fight. You do not want this f****** fight. You are on the wrong f****** side.”

Quaglin allegedly shoved “a USCP officer on the Lower West Terrace,” and then grabbed and pushed “the officer by the neck before working with other rioters to rip one of the barrier fences out of the hands of MPD officers.” Along with other rioters, he allegedly stole a riot shield. Quaglin “attacked police officers with the stolen riot shield and sprayed them with a chemical irritant also called OC spray.” He is accused of spraying “the chemical irritant at MPD and USCP officers,” including “directly into the face of an MPD officer who was not wearing a face shield or gas mask.” Quaglin “can later be seen at the front of the line pushing up against the same MPD Officer he sprayed with the chemical irritant.” Rioters yelled “heave ho” as they put “their collective mass behind Quaglin and others.” Quaglin remained on the frontline, “impeding police” until he was pushed out of the tunnel along with the other rioters. 

In an affidavit, an FBI agent cites multiple images of Quaglin, who was wearing a “Make America Great Again hoodie,” a helmet with a camera affixed on top, and a gas mask. These images also allegedly show Quaglin assaulting officers. According to press reporting, Quaglin is a member of the Proud Boys.

16. Jeffrey Sabol

Status: Charged with multiple crimes, including assaulting, resisting, or impeding certain officers using a dangerous weapon

IMAGE: Sabol, circled in red, holds an instrument believed to be a police officer’s baton across a police officer’s lower neck. (via Statement of Facts)

According to the Statement of Facts, Sabol and other rioters allegedly dragged an MPD officer “down the stairs of the Capitol building.” They forced the officer “into a prone position on the stairs and proceeded to forcibly and repeatedly strike” the officer “in the head and body with various objects.” The Statement of Facts and a summary on the DOJ’s website both point to a photo that allegedly shows Sabol “holding an instrument believed to be a police officer’s baton across the police officer’s lower neck while his left hand is pressed to the backside of the officer.” Sabol denied these charges, claiming he “covered the police officer for his own safety” while others hit the police officer with poles.

17. Peter Schwartz

Status: Convicted of several counts including assaulting, resisting, or impeding law enforcement officers using a dangerous weapon; interfering with a law enforcement officer during a civil disorder; obstruction of an official proceeding, and related charges

IMAGES (L to R): Schwartz, circled in red, carrying a wooden baton in the midst of a large crowd of rioters near the tunnel arch; Schwartz, circled in red, extending his arm out to spray an orange substance directly at a group of officers. (via Statement of Facts)

Peter J. Schwartz, of Uniontown, Pennsylvania, was convicted at trial in December 2022. Schwartz, along with his wife Shelly Stallings, had traveled to Washington D.C. and were at the Lower West Terrace of the Capitol Building. According to the DOJ’s summary, Schwartz was at the front of the police line when he “threw a folding chair at officers,” and claimed to a friend that he “started a riot” by “throwing the first chair.” Schwartz “stole MPD duffle bags full of O.C. spray canisters, which he distributed to other members of the mob, including his wife, so that they could deploy them against the police.” Stallings pleaded guilty in August 2022.

“Wielding a large MK-46 canister and carrying a wooden tire thumper,” the DOJ summary continues, “Schwartz began indiscriminately spraying O.C. spray at any retreating police officers he could find.” At the Lower West Terrace tunnel, Schwartz gave a spray cannister to Markus Maly, who passed it to Jeffrey Brown. Brown couldn’t figure out how to use it at first. But Schwartz “appears to have shown Brown how to use it and passed it back.”  Brown “then dove towards the front of the police line, spraying them with yet more OC spray.” Both Maly and Brown were convicted of assaulting officers as well.

The Statement of Facts cites screenshots from a publicly available video, which shows Schwartz spraying an orange substance at police officers.

18. Barton Shively

Status: Pleaded guilty to two counts of assaulting, resisting, or impeding law enforcement officers

IMAGE: Shively speaks to the crowd, with a Three Percenter patch on his arm sleeve. (via CNN)

In Sept. 2022, Shively, of Mechanicsburg, PA, pleaded guilty to assaulting law enforcement officers. According to the DOJ’s summary, Shively attended the rally at the Ellipse on Jan. 6 and “then walked to the U.S. Capitol, where he unlawfully entered the grounds,” got past broken-down police barriers and went up the steps of the Capitol. Shively “assaulted one officer by striking the officer’s hand, and head and shoulder areas.” Shively “also assaulted another officer, grabbing the officer’s jacket and yelling at the officer.”

CNN interviewed Shively, a former U.S. Marine, near the U.S. Capitol on January 6. A screenshot of Shively speaking shows he had a Three Percenter patch on his arm sleeve. The Three Percenters are an anti-government militia movement. Its members believe, incorrectly, that just three percent of America’s colonial population overthrew British rule. Three Percenters also generally believe that the current U.S. government is illegitimate and deserves to be overthrown. As documented in Chapter 6 of the January 6th Select Committee’s final report, Three Percenters shared an “#OccupyCongress” meme prior to the joint session of Congress. Multiple Three Percenter groups planned for violence that day. Additional images of Barton Shively are available on the Sedition Hunters website.

19. Peter Stager

Status: Pleaded guilty to assaulting, resisting, or impeding certain officers using a deadly or dangerous weapon

IMAGES (L to R): Stager speaks to a crowd at the U.S. Capitol; Stager, highlighted in the red rectangle, holds a flagpole with an American flag attached; Stager, circled in red, climbs a set of stairs and uses a pole to repeatedly strike a police officer. (via Statement of Facts)

Stager, of Conway, Arkansas, pleaded guilty in February to assaulting a Metropolitan Police Department (MPD) Officer on Jan. 6. According to the DOJ’s summary, Stager “repeatedly struck” the MPD Officer “with a flagpole while the officer was prone on the steps.” Others had already pulled the Officer down a flight of steps. On Jan. 6, Stager was recorded saying: “Everybody in there is a disgrace. That entire building is filled with treasonous traitors. Death is the only remedy for what’s in that building.” According to the DOJ, Stager was referring to everyone in the Capitol building. Stager added, “every single one of those Capitol law enforcement officers, death is the remedy, that is the only remedy they get.” 

The Statement of Facts includes multiple images of Stager climbing the U.S. Capitol building stairs and attacking the MPD officer with a flagpole.

20. Jessica Watkins

Status: Convicted of several charges, including conspiracy to obstruct an official proceeding, obstruction of an official proceeding, interfering with law enforcement officers during a civil disorder, and conspiracy to prevent an officer from discharging duties

IMAGE: Watkins, wearing a helmet, with a group of Oath Keepers. (via Affidavit)

Watkins, of Woodstock, Ohio, was convicted of several charges in November 2022. Her case has been widely covered in the media, as she was a member of the Oath Keepers. On Jan. 6, she joined other members of the group in forming two “stacks,” marching up the steps of the Capitol and then pushing their way into its Rotunda. While other members of the Oath Keepers, including the group’s leader, were convicted of seditious conspiracy, she was not. However, she was convicted of conspiring to obstruct an official proceeding, namely, the joint session of Congress on Jan. 6, as well as other related charges.

An affidavit includes images of Watkins on Jan. 6, as well as screenshots from her posts on Parler, a right-wing social media site.

IMAGE:  a collage of photos of the defendants held by the D.C. Department of Corrections on the day of the January 6 attack. 

The post Profiles of the January 6th Inmates in the D.C. Jail appeared first on Just Security.

Falsifying Business Records

Falsifying business records under New York law can be charged either as a misdemeanor or a felony. The misdemeanor requires proof of one of several potential acts. Relevant to Trump is the statute’s prohibition of making “a false entry in the business records of an enterprise.” The evidence indicates he personally signed checks to Michael Cohen as reimbursement for the hush money payment. If DA Bragg can prove that Trump signed those checks—and it appears he can—and that Trump knew the payment for hush money was being falsely recorded as “legal expenses,” then Trump committed a misdemeanor (or likely a number of misdemeanors, if each false entry is charged separately).

To establish a felony (i.e. falsifying business records in the first degree), prosecutors would need to prove, in addition to the elements of the misdemeanor, that Trump’s “intent to defraud include[d] an intent to commit another crime.” There are a number of candidate crimes—and we offer below an assessment of just some of the more likely options.

Potential Predicate Crimes for a Felony Charge

Despite the numerous possible violations that could theoretically be charged, we focus our analysis on three possibilities based on publicly available information and our collective decades of experience prosecuting and defending criminal cases: (1) federal campaign finance crimes; (2) state campaign finance crimes; and (3) conspiracy to promote or prevent an election.

1. Federal Campaign Finance Crimes

There is strong evidence that Trump’s conduct in the hush money payments involved federal campaign finance violations. —After all, Cohen was convicted for just such offenses, and the Justice Department’s sentencing memorandum stated that he “acted in coordination with and at the direction of Individual-1,” who was easily identified as Trump. There are two potential problems with federal campaign finance violations serving as the basis for a felony charge in New York. As we noted in our last article on the subject, there are nuances in the definition of the word “crime” under New York state law. The New York Penal Law defines “crime” as “a misdemeanor or a felony.” Both “misdemeanor” and “felony” are separately defined as an “offense” for which a term of imprisonment can be imposed (the distinction between the two being the length of incarceration allowed). 

Finally, “offense” is further defined as:

“conduct for which a sentence to a term of imprisonment or to a fine is provided [1] by any law of this state or [2] by any law, local law or ordinance of a political subdivision of this state, or [3] by any order, rule or regulation of any governmental instrumentality authorized by law to adopt the same.”

Clearly, a federal law is not a “law of this state” or “any law, local law or ordinance of political subdivision of this state” – the first and second option. The third option in the statute, “any order, rule or regulation of any governmental instrumentality authorized by law to adopt the same,” could include federal law. In contrast to the other two clauses, the third does not explicitly limit “governmental instrumentality” to be “of this state.” And of course Congress is “authorized by law” to adopt laws imposing sentences of incarceration. Further, the “same” in this context could mean “any order, rule or regulation,” which could potentially include federal law. The text of the statute therefore could include federal crimes. Moreover, if the New York state legislature wished to limit the third option to New York state law, they certainly could have said so clearly. There also appear to have been cases in New York brought with a federal crime as a predicate offense, as we noted in our first essay in this series. 

Nevertheless, the only appellate court in New York to have considered the meaning of “offense”—albeit in a very different context, and without parsing the third clause listed above—found that it applied only to New York crimes. That appellate court will not bind a Manhattan court because it is out of another district and because its context is so distinguishable. But it will undoubtedly be pressed by Trump as persuasive authority if the federal crimes are relied upon to elevate the misdemeanor books and records charge into a felony. It remains to be seen how a judge would rule on this point if it is put to the challenge. If we were charging the case we would charge both federal crimes and state ones as alternative bases for elevating the misdemeanor to a felony, and we further discuss the scope of the federal case in subsection 4 of the legal defenses section below. 

According to press reports, however, it appears state campaign finance crimes may be the primary or exclusive basis for the felony upgrade. Indeed, we pointed out their potential applicability in the first essay in this series. We turn to them next.

2. State Campaign Finance Crimes

New York has a robust set of laws regulating elections that purport to apply broadly, including explicitly to “federal” contests. New York’s campaign finance laws also apply broadly to candidates who seek election “to any public office” (emphasis added). As a result, crimes outlined in New York’s state campaign finance laws might appear on their face to apply to candidates equally whether running for federal or state office—including for the presidency.

But the reality is more complex. To see why, take one such crime: N.Y. Elec. Law § 14-126(6). It states that any person who, “acting on behalf of a candidate … make[s] expenditures in connection with the … election of any candidate … for the purpose of evading the contribution limitations of this article, shall be guilty of a class E felony.” That the hush money payments were campaign expenditures seems relatively clear (as demonstrated, in good part, by Cohen’s conviction of those offenses at the federal level). They transgressed applicable state (and federal) limits and/or reporting rules. Moreover, the evidence supports the proposition that Trump was aware of that. For example, one of Cohen’s audio recordings of Trump indicates that Trump knew about the payments that would violate campaign finance laws. The audio recording also supports the contention that Trump knew the hush money payments were being made through a shell company that Cohen would be setting up. 

In the recording, Cohen says, “I need to open up a company for the transfer of all of that info regarding our friend David.” (David apparently refers to David Pecker, who was involved in the hush money scheme and appears to have testified in front of the Manhattan grand jury investigating Trump.) In proceedings with the federal government, Pecker’s company admitted that the scheme was set up “to ensure that a woman did not publicize damaging allegations about that candidate before the 2016 presidential election and thereby influence that election” (AMI non-prosecution agreement). So, section 14-126(6) appears to apply to Trump’s conduct.

Nevertheless, a potential problem for prosecutors is found in a separate New York state campaign finance law that states that the “filing requirements and the expenditure, contribution and receipt limits” under state law “shall not apply to any candidate” when that candidate is required to file statements at the federal level, “provided a copy of each such statement or report is filed in the office of the state board of elections.” (The provision is a reflection of the federal preemption issues which we shall cover in more detail in the next subsection.) Perhaps DA Bragg could argue that the appropriate statement or report was not really filed in the office of the state board of elections because it omitted any reference to the hush money payment. Essentially, the argument would be that if you lie to the federal authorities, then you are no longer subject to the exception under state law. We have found no case law assessing such an argument in New York—we will have to see what a judge decides.

3. Conspiracy to promote or prevent an election

A more likely candidate for the crime that may convert the books and records charge to a felony is N.Y. Elec. Law § 17-152: Conspiracy to promote or prevent election. Under that statute, “Any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor.” Trump appears to have conspired with Cohen (and others) to promote his own election by making the hush money payments. The key questions are whether “unlawful means” were used and whether this statute is preempted by federal law.

Under New York law, “unlawful means” appears to be construed broadly—and is not limited to crimes (which would therefore require yet another predicate crime). In a 100-year-old opinion, the state appellate court with authority over Manhattan ruled that “unlawful means” as written in another statute does not necessitate “the commission of a crime.” Instead, the court held that “unlawful means” simply refers to conduct “unauthorized by law.”

That case, although vintage, is consistent with what we would expect to find when construing the meaning of section 17-152. New York’s highest court has noted that when language in a statute is not defined, words are generally to be given their “usual and commonly understood meaning” and that dictionaries are “useful guideposts” in ascertaining that meaning. Merriam Webster defines “unlawful” as “not lawful : ILLEGAL.” “Illegal” is further defined as “not according to or authorized by law : UNLAWFUL, ILLICIT.” Unlike with the definitions of “a crime” in the books and records statute, there appears to be no issue about the definition precluding the application of federal law. Indeed, these definitions appear to include any conduct that is inconsistent with the law, rather than just criminal conduct. And we would expect a judge ruling on the meaning of the statute to find as much.

Thus the potential “unlawful means” here are legion. There are the violations of federal campaign finance laws to which Cohen pleaded, as well as violations of state campaign finance laws, and potentially even the bank fraud for which Cohen was convicted in connection to the scheme. Some commentators have suggested that bank fraud is an option for a state law predicate, as it avoids the preemption problems of state campaign finance violations (more on that below). The biggest challenge to that theory is that New York generally requires some mental culpability as to each element of an offense. That would mean the prosecution would have to prove that Trump knew about Cohen’s bank fraud, and it had a sufficient nexus to the election interference. No publicly available information indicates there is any evidence of that, but perhaps DA Bragg has something up his sleeve. If so, then bank fraud could be a viable option.

4. A catch-all alternative

Either in addition to or instead of any of the offenses outlined above, DA Bragg may also consider the catch-all offense within New York state’s election code as the predicate crime for the books and records charge. That statute, N.Y. Elec. Law § 17-168, criminalizes any knowing and willful violation of any New York election law (to the extent the “violation is not specifically covered by” some other provision). There are many New York election laws Trump may have violated in the hush money scheme. As just one example, when Cohen made the payment to keep Stephanie Clifford silent, he was required to account for the expenditure consistent with New York campaign finance laws (so long as state campaign finance law applied to Trump’s candidacy, as addressed above). To the extent Trump directed Cohen’s conduct, he could himself be criminally liable under the catch-all provision for this violation.

Trump’s Possible Counterpoints and Legal Defenses

In our first piece in this series, we addressed several legal hurdles that Trump may try to put in front of DA Bragg—including arguments that any charges would be barred by applicable statutes of limitations or that Trump could raise a defense based on the advice of counsel. We explained that those can be overcome. 

Three  more arguments that Trump may advance are: federal law preempts and thus blocks the campaign and election related state offenses at the state level; the funds used were not campaign money, and that the payment would have been made “irrespective” of the election. The federal preemption issue is a tricky one that requires unpacking but that appears to us to be ultimately unavailing.  As for the other two hurdles we discuss below that Trump might advance, neither of them is persuasive either.

1. Federal Preemption

Using state  campaign finance law violations as the “unlawful means” under  N.Y. Elec. Law § 17-152 presents a federal preemption question. 

Federal preemption refers to the circumstance where federal law renders a state law unenforceable. The Supremacy Clause of the United States Constitution makes federal law “the supreme Law of the Land.” As a result, when there’s some irreconcilable conflict between state and federal law (conflict preemption), when Congress’ legislation of an area of law is sufficiently pervasive (field preemption), or even when Congress just says so (express preemption), the federal law wins and the state law is unenforceable.

The Federal Election Campaign Act of 1971 (FECA), as later amended in 1974, includes an express preemption statute that states, with certain exceptions not relevant here (e.g., involving voter fraud) the following: 

“[T]he provisions of this Act, and of rules prescribed under this Act, supersede and preempt any provision of State law with respect to election to Federal office.” 

The Federal Election Commission (FEC) rule interpreting that statute further states that “Federal law supersedes State law concerning the … [d]isclosure of receipts and expenditures by Federal candidates and political committees” and “[l]imitation on contributions and expenditures regarding Federal candidates and political committees.”

Although the FEC has taken the position that FECA “occupies the field with respect to Federal election campaign contributions,” some courts interpreting the Act have instead found that FECA’s preemptive effect is narrow. Those courts have allowed state statutes to stand that clearly “relate to” or “concern” federal campaign contributions in a variety of circumstances, including: a limitation on corporate contributions to federal campaigns; a violation of consumer protection laws related to recurring donations to a political action committee (PAC) that exclusively funded federal campaigns; and fraudulent transfers of donations from PACs ostensibly founded to support presidential campaigns. One federal appellate court explained that courts appear to allow such laws to stand when they are “tangential” to the regulation of federal campaign financing.

How does that apply to the crimes we have outlined above?

First,  a falsifying books and records charge itself would not be preempted, whether or not the predicate offense were a campaign finance violation—so long as the underlying violation itself were not a preempted state law—as it is analogous to the kinds of laws that courts have consistently found permissible under a narrow reading of FECA’s preemption statute. If consumer protection laws related to political donations are okay, as another federal appellate court has held, then surely laws promoting accurate corporate record-keeping are as well.

Second are the state campaign finance crimes, where the issue of federal preemption looms large. Indeed, Trump may argue preemption applies to any New York campaign finance crime used as the basis to charge a felony false records offense against Trump. New York’s highest court has stated that FECA “occupies the field with respect to reporting and disclosure of political contributions to and expenditures by Federal candidates and political committees.” The court further indicated that the preemptive scope of FECA may cover all regulation of the “financing of campaigns for Federal elective office.”

DA Bragg could still argue that section 14-126(6) is tangential to FECA, in that it really regulates expenditures made to violate campaign finance laws, rather than regulating the financing itself of a campaign for federal office. Even so, it appears Trump would have had to have been subject to New York’s campaign spending limits in the first place, which themselves are arguably preempted.

The issue is fairly novel, and we will have to wait and see what a judge decides if DA Bragg takes this route.

Third is the offense of conspiracy to prevent an election by “unlawful means.” Here the specific question is  whether section 17-152 would be preempted if the “unlawful means” used to achieve the conspiracy to promote a candidate is a violation of federal campaign finance laws. As a preliminary matter, a state statute that directly criminalized any violation of federal campaign finance laws could be preempted. Section 17-152 with a federal campaign finance law violation as the “unlawful means” in effect criminalizes a conspiracy to violate a federal campaign finance law, and is arguably subject to preemption for the same reason. 

DA Bragg could however reply that the FEC regulation, which a federal court of appeals has said is “definitive evidence of the scope of FECA’s preemption clause,” does not cover such a crime. That regulation, in relevant part, supersedes state laws concerning the “[d]isclosure of receipts and expenditures by Federal candidates and political committees” and any “[l]imitation on contributions and expenditures regarding Federal candidates and political committees.” By its express terms, the regulation does not explicitly say that criminalizing violations of federal campaign finance laws—or conspiracies to do the same—are preempted. As a result, DA Bragg could plausibly argue that 17-152 under this theory is not preempted. And he could point to the substantial number of cases we cite above for the proposition that courts have refused to preempt state statutes touching on federal campaign contributions in a variety of circumstances that are arguably comparable. 

Here, the question is whether a state criminal law that effectively criminalizes federal campaign finance violations would be deemed to be “with respect to” or “concern” the areas covered by the preemption provisions. This is another novel situation, and again we will see what a judge decides if Bragg pursues this path.

2. Campaign funds versus personal funds

Trump and his attorneys have noted that the hush money payments and repayments were not made with campaign money, as if that exonerated him. But as a starting point, that offers no defense to whether misdemeanors of falsifying business records were committed. The question of whether it helps the other crime needed to convert that charge to a felony depends on the other crime. It certainly offers Trump no assistance as to any of the three crimes discussed above. 

For state campaign finance violations, the payment counts as a qualifying “contribution” even if it comes from non-campaign funds. New York Election Law § 14-100(9)(3) defines “contribution,” in part, as “any payment, by any person other than a candidate or a political committee authorized by the candidate, made in connection with the nomination for election or election of any candidate.” Cohen made the payment to Clifford, and not candidate Trump; a corporation (American Media Inc.) made the initial payment to Karen McDougal. 

Likewise under FECA, a campaign “expenditure” includes any payment “made by any person for the purpose of influencing any election for Federal office.” The money not being campaign money therefore does not help Trump with federal campaign finance violations either. And a prosecution under the election conspiracy statute suffers from the same problems for Trump, as those are the likely “unlawful means.” (And if something other than campaign finance serves as the “unlawful means,” it would seem not to matter if it came from the campaign coffers or not.)

Trump’s counsel has asserted that Trump would have made the payment “irrespective of the campaign”  which “ends this case,” but that line of argument does not hold up legally or factually. Legally, an expenditure is personal and not campaign-related if it is an expense “that would exist irrespective of the candidate’s election campaign.” But here the payment and entire scheme with American Media Inc.appeared calculated for campaign purposes rather than personal reasons. As we discuss below, Trump did not make the payment because he was hiding it from his wife—public evidence suggests that Melania already knew—and there is other evidence in the public record showing the payments were made to suppress the stories coming out before the election.  And even if the payment were made both for campaign and personal reasons, Trump would have been required to document that expense, which he apparently did not.

3. Statute of Limitations

The misdemeanor/felony distinction also bears upon the statute of limitations issues we addressed in our last article. As we noted in our prior piece, it appears more or less certain that prosecutors have a great deal of time left on the clock to charge Trump with a felony for his role in the hush money scheme before the statute of limitations runs. However, it is closer in the event that only a misdemeanor is charged, or if a court ultimately buys Trump’s legal arguments and rules all the felony charges against him must be dismissed (leaving only misdemeanor offenses standing). Misdemeanors in New York are subject to a two-year statute of limitations. As we also noted in our first piece, however, statutes of limitations can be paused for every day Trump spent outside New York after the last criminal act he committed. The last known check Trump signed to reimburse Cohen—which Trump reportedly knew was to be falsely recorded as a legal expense—was apparently signed on December 5, 2017.

The question is therefore how many days Trump has spent outside New York since December 5, 2017. Apparently, the answer is a lot. According to a report by the Washington Post, Trump spent at most 81 days in New York during the rest of his presidency (and very possibly fewer). That left approximately 21 months on the clock at that point to charge him with a misdemeanor. And although it has been approximately 26 months since the end of his presidency and he could theoretically have run out the clock, it seems clear he has not spent approximately 80% of his days in New York (as would have been required for the clock to run by now). That means that so long as the Court of Appeals does not overturn any existing law on the issue, even a misdemeanor is not time-barred.

4. What About the John Edwards Case?

Some commentators, and Trump’s defense attorney, appear to be trying to equate the hush money payments in this case to the contributions at issue in the unsuccessful prosecution of former Senator and presidential candidate John Edwards. Let us state clearly—whereas the Edwards case was borderline as to whether it should have been brought, both legally and factually, the Trump case is relatively straightforward. 

The Case Against John Edwards

Edwards was charged in a North Carolina federal court with five counts of campaign finance violations and one count of conspiracy (essentially, to commit the scheme contained within the other five counts). Many of the facts in the case were uncontested. From early 2006 through approximately August 2008, Edwards had an extramarital affair with Rielle Hunter, a former campaign videographer. The National Enquirer published allegations of the affair in October 2007, and a subsequent article in December 2007 alleging Hunter was pregnant. Edwards initially denied the affair, and his campaign aide Andrew Young claimed paternity over the baby. Over months, Edwards used payments from donors, some of which Young had collected, to pay for travel and accommodations for Young and Hunter to escape media attention. In the background of the affair, its coverup, and Edwards’ presidential campaign was his wife Elizabeth, who had stage-IV breast cancer. In an April 2007 interview, she acknowledged the cancer was likely terminal. She passed away in December 2007, survived by three children.

To secure a conviction, federal prosecutors had to prove that each of the six offenses were done willfully, which required a jury to find that Edwards knew his conduct was unlawful. That appears to have been one of their major challenges. The Government relied almost entirely on the testimony of Young—who was granted immunity for cooperating in the prosecution—and that of his wife, Cheri. Both had motivation to fabricate testimony. Young had the threat of criminal prosecution hanging over his head if he failed to implicate Edwards. And Young had significant exposure were he convicted: he testified that he kept approximately $1 million in payments for his own personal use. Cheri’s motivation to fabricate was not as strong, but a desire to support her husband and perhaps to seek revenge against the man she believed had wronged them likely played a role in the jury’s minds. Additionally, the proof as to whether the donors knew where their payments were going or that the campaign solicited the payments for that purpose was less than ironclad, in part because the donors themselves were unavailable as witnesses.

Among Edwards’ defense team’s many arguments were (1) that the money was personal and not election-related for the purpose of FECA because he used the money solely to hide the affair from his dying wife, and subsequently from their surviving children; and (2) in any event, he did not know that he could be violating of federal campaign finance laws. He mounted a robust defense, calling a number of witnesses, including both a former FEC chairman (who testified as to how complicated campaign finance law is) and one of Edwards’ former lawyers (who testified in support of Edwards’ contention that he did not know the payments were illegal).

Ultimately, the jury deadlocked on five counts and acquitted Edwards of one count. Any prosecutor who tries these types of cases (or defense lawyer who defends them) will tell you that without a proverbial smoking gun, proving a willful violation of a complex statute is challenging. Nevertheless, the fact that the Government came close in this case with a deadlocked jury suggests that when the proof is substantially more compelling, conviction is a real possibility. (In that case, the government decided against re-trying the charges on which the jury hung).

Contrast With the Case Against Trump

Trump’s defense will lack many of the attributes that helped Edwards avoid conviction. Compare Cohen (an imperfect, yet credible witness who already has served his time) with Young, whose motivation to stay out of prison clearly had an impact on his credibility. Trump also lacks the personal motivation that Edwards was able to argue—whereas Edwards’ wife was unaware of the affair, public evidence suggests that Melania already knew about Trump’s affair with Clifford. Edwards therefore could credibly argue he had a strong motive to keep the affair secret from his wife and their children. The fact that Edwards even made a payment after he dropped out of the election further buttresses that point. Moreover, whereas both McDougal and Clifford were in negotiations to go public about their affairs, there is no indication that Edwards’ mistress had any similar inclination. 

What’s more, the Trump payment was made only weeks before the election. And there is likely to be testimony from Cohen, Pecker, and perhaps others that the purpose of the payment was related to the election (the non-prosecution agreement with Pecker’s AMI is one piece of evidence, and the audio recording of Trump and Cohen referring to the arrangement with Pecker is another). The Justice Department’s sentencing memorandum in Cohen’s federal criminal case is also replete with references to how the arrangement was designed—starting two months after Trump announced his presidential run—to suppress stories being published before the election. And whereas Edwards’ former lawyer testified in his defense as to his good faith, Trump’s former lawyer (Cohen) will testify as to his bad faith. The proof as to the facts of a falsified business record and whichever likely predicate crime is alleged against Trump are also much stronger than were the facts of the campaign finance violations alleged against Edwards.

In short, although the two cases share some overlaps involving presidential campaigns and secret affairs, the outcome of the cases is likely to be very different.

Conclusion

The hush money payments were a significant matter for our democracy. The election of 2016 was a close one, in which Donald Trump was already coping with a sex scandal because of the Access Hollywood tape. Had the Clifford allegations emerged, they might have changed the outcome of the election. And the payments certainly seem to run afoul of the New York books and records statute. While bringing a felony case presents complexities, DA Bragg is to be applauded for taking the matter seriously. 

Trump for his part recognizes the peril he faces and is responding in a familiar fashion. His call to “PROTEST, PROTEST, PROTEST!!” is reminiscent of his “will be wild!” tweet summoning the mob to January 6. Bragg has said his office does not tolerate attempts to intimidate—rightly so. Trump’s incitement failed last time and will here as well. 

We await the DA’s next move.

IMAGE: (L) Manhattan District Attorney Alvin Bragg speaks at a press conference after the sentencing hearing of the Trump Organization at the New York Supreme Court on January 13, 2023 in New York City (Michael M. Santiago/Getty Images); (R) Former U.S. President Donald Trump speaks to reporters before his speech at the annual Conservative Political Action Conference (CPAC) at Gaylord National Resort & Convention Center on March 4, 2023 in National Harbor, Maryland. (Anna Moneymaker/Getty Images)

The post The Manhattan DA’s Charges and Trump’s Defenses: A Detailed Preview appeared first on Just Security.

We begin with a discussion of who Scott Perry is and his role in the effort to overturn the election because the legal analysis turns on those facts and because it illuminates the larger stakes here. They are momentous.

I. Background on Rep. Scott Perry and the Assault on the 2020 Election

Perry’s interference in the 2020 presidential election is well documented – including in media reporting, a Senate Judiciary Committee report in October 2021, and the Jan. 6 Select Committee’s final report. Perry has been exposed as a “key congressional” ally of President Donald Trump in his effort to steal the presidential election and subvert our nation’s democratic process, and as the “chief conduit for the House GOP Conference to the White House.”

Perry’s involvement in Trump’s effort to overturn the election was extensive. He was “involved in early post-election messaging strategy” and an “early supporter” of the “Stop the Steal” campaign. The Congressman also “often teamed up” with Rep. Jim Jordan to spread lies about the election, both speaking at a “Stop the Steal” rally outside the Pennsylvania State capitol in Harrisburg, on Nov. 5, 2020, just days after the November election. On Nov. 10, Perry texted Meadows with advice from a “cyber forensic team” he was in touch with after the 2020 election. The message included a link to a conspiracy theory about the vote count in Pennsylvania posted by the far-right newspaper Epoch Times. It was one of many text messages that would follow.

He was involved in “discussions with White House officials about Vice President Pence’s role on January 6th as early as November 2020,” according to the Select Committee’s final report.

Perry also joined 26 other Republican Congressmen in co-signing a Dec. 9 letter requesting that Trump “direct Attorney General Barr to appoint a Special Counsel to investigate irregularities in the 2020 election.” The letter came more than one week after Barr had already told the press that there was zero evidence of significant fraud which could affect the outcome of the election. And Perry also supported Texas’s fatally flawed lawsuit against Pennsylvania, his own home state, and three other states. He also on Dec. 21, along with 10 other House Republicans, met with Trump at the White House to discuss their plan to object to the certification of the electoral college vote on Jan. 6. In the early hours on Jan. 6, Perry spearheaded Republicans’ objection to certifying the results in Pennsylvania, and he persists in making clear his skepticism in the 2020 election results.

Despite Perry’s trite public “condemnation” on Jan. 9, 2021 of the “unacceptable and criminal” behavior of those that attacked the Capitol building, he had initially advocated to Meadows that Trump speak at the Capitol during the joint session. He also joined a call on Jan. 2, where Rep. Jim Jordan (R-Ohio), Trump, and others discussed taking to social media to encourage Trump supporters to march to the Capitol on Jan. 6.

But “perhaps most pivotally,” as the Jan. 6 Select Committee noted, was Perry’s role in the plan to supplant the acting Attorney General with Trump loyalist Jeffrey Clark, in an effort to enact the “fake electors” plan. Perry introduced Clark to Trump, and together they had a shared goal: “to enlist Clark to reverse the Department of Justice’s findings regarding the election and help overturn the election outcome” (Jan. 6th final report). Evidence by the Senate Judiciary Committee and the January 6th Select Committee both show that following Perry introducing Clark to Trump, Perry sent several text messages to Meadows between Dec. 26, 2020, and Jan. 2, 2021, pressing that the DOJ official be speedily promoted to the very top of the Department to effectively carry out the plan. “Mark, you should call Jeff. I just got off the phone with him and he explained to me why the principal deputy won’t work, especially with the FBI. They will view it as [sic] not having the authority to enforce what needs to be done,” Perry wrote in a text to Meadows on Dec. 26.

Perry himself called Acting Deputy Attorney General Donoghue on Dec. 27. “Perry explained that President Trump asked him to call and that he, Representative Perry, did not think the DOJ had been doing its job on the election,” the final report states, relying on Donoghue’s testimony. Perry also spoke highly of Clark on the call, saying that he believed Clark “‘would do something about this,’” Donaghue testified. Perry also raised other unrelated qualms he had with the DOJ and argued that the “FBI doesn’t always do the right thing in all instances.”

That evening, Perry emailed Donoghue “a set of documents” which alleged significant voting fraud in Pennsylvania.  One document claimed that election authorities had counted 205,000 more votes than had been cast, a claim which Perry also shared on Twitter the following day. President Trump consistently asserted the same. But the claim was false; a simple delay in Pennsylvania’s election site to update explained the discrepancy in reported public votes cast.

Perry’s plan appeared to be succeeding, as Trump offered Clark the position of Acting Attorney General, Clark said he would accept, and the White House call logs referred to Clark under that new title. Perry and Trump’s plan failed only after DOJ officials warned Trump in the Oval Office on Jan. 3 of mass resignations if Clark were to replace Rosen.

II. Procedural History of the Criminal Investigation and the Perry Litigation

Perry has been of interest to Justice Department prosecutors since at least June 2022 for his involvement in efforts to overturn the 2020 election. That is when District Court Chief Judge Beryl Howell issued an order giving prosecutors access to 37 emails between Perry and Jeffrey Clark, Ken Klukowski, and John Eastman.

On Aug. 9, 2022, FBI agents executed a court-authorized warrant to seize Congressman Perry’s personal cell phone while he was on vacation with his family in New Jersey. Soon after the seizure, Perry shared news of it with Fox News in an official statement. “And this is my personal cell phone, Brian,” Perry said during his first exclusive interview on the matter with Fox News. “I have a [sic] official cell phone. They don’t want that. So, this is my personal cell phone that I talk to my wife on, that I talk to my children on, my constituents. None of the government’s business.”

As media outlets reported at the time, the seizure was the third major step “taken [in recent months] in connection with an escalating federal investigation into efforts by several close allies of former President Donald J. Trump to overturn the 2020 election[.]” In addition to seizing Perry’s phone, agents had in June seized the phones and other electronic devices of Clark and Eastman, all originally in relation to activities of the Justice Department’s Office of the Inspector General, which was at the time “taking the lead on the election subversion investigation.”

The warrant was issued on Aug. 2 by Magistrate Judge Susan E. Schwab of the U.S. District Court for the Middle District of Pennsylvania. After seizing the congressman’s phone, its data was copied, and the phone was given back the same day. DOJ then asked the U.S. District Court for the District of Columbia for “a necessary second level of judicial permission to begin combing through the records.” Perry immediately filed a lawsuit following the seizure, raising Speech or Debate Clause claims. Following Perry’s lawsuit, the dispute went under seal, with Perry’s legal team and DOJ investigators appearing in mid-October before Judge Howell during a secret hearing. Perry then dropped his suit in October, leaving unknown the status of the behind-closed-doors case.

On Dec. 28, 2022, Judge Howell ruled in favor of the DOJ’s request to start the second stage of its review, allowing prosecutors to comb through the electronic information on Perry’s phone. Last month, however, a three-judge appeals court panel in DC – two Trump appointees, Judges Gregory Katsas and Neomi Rao, and H.W. Bush appointee Judge Karen Henderson – put a temporary stay on Howell’s ruling. The Reporters Committee for Freedom of the Press then filed a motion to “unseal the appeals court’s order and all briefing in the case, including filings submitted by the government, Perry, and the U.S. House of Representatives.” Further, they requested oral arguments in the case be open to the press and public. On Feb. 16, 2023, the D.C. Circuit granted the latter request in part with a public hearing to be immediately followed by one closed to the public.

Notably, the House has made a move in the case, with the five-member “Bipartisan Legal Advisory Group,” – including House Minority Leader Hakeem Jeffries and Republican House Speaker Kevin McCarthy – voting unanimously to intervene in the case.

Thursday’s Hearings

During the public part, oral arguments were made on two issues relevant to the Speech or Debate Clause:

1. Whether the Speech or Debate Clause of the Constitution protects informal legislative fact-finding by individual members of Congress in the absence of official authorization; and
2. Whether the Speech or Debate Clause’s non-disclosure privilege extends to communications between members of Congress and either private parties or members of the Executive Branch.

We address these two questions specifically in our analysis below, with reference to the available facts, and taking account of what we learned at the argument. But first we offer some threshold analysis of Speech and Debate Clause law and precedent. Some areas are more settled than others, some issues the Supreme Court has never dealt with, and some matters the Circuits disagree on.

III. The General Constitutional Framework

The Constitution’s Speech or Debate Clause provides that “for any Speech or Debate in either House,” Senators and Representatives “shall not be questioned in any other Place.” U.S. Const., art. I, § 6, cl. 1. As recognized in the Justice Department’s manual, the Clause’s “purpose is to assure the Congress a wide and unfettered latitude of freedom of speech in the deliberative process surrounding enacting legislation, and to shield that process from potential intimidation from the Executive and Judicial Branches.”

The privilege(s) offered by the Clause are relatively broad: it “protects ‘against inquiry into acts that occur in the regular course of the legislative process and into the motivation for those acts’” and “precludes any showing of how [a legislator] acted, voted, or decided.” United States v. Helstoski, 442 U.S. 489, 500 (1979) (quoting United States v. Brewster, 408 U.S. 501, 525, 527 (1972)). The legislative process includes not only “words spoken in debate,” but also “[c]ommittee reports, resolutions, and the act of voting” and “things generally done” during a legislature’s session “by one of its members in relation to the business before it.” Gravel v. United States, 408 U.S. 606, 617 92 S. Ct. 2614 (1972).

The Clause can be best thought of as composing the general principle of immunity (from prosecution or suit), “complemented” and “effectuated” by two component privileges – evidentiary and testimonial – which Members may invoke to protect against the introduction of specific “legislative act” evidence. As such, a Member of Congress cannot be compelled to testify about matters covered by the privilege, nor have evidence of such acts used against them at least at trial and potentially during investigations (depending on which Circuit you ask).

Limitations to the Clause

“The scope of [any] privilege is limited by its underlying purpose.” Roviaro v. United States, 353 U.S. 53, 60 (1957). The “central importance” of the immunity created by the Speech or Debate Clause is to “prevent [] intrusion by [the] Executive and Judiciary into the legislative sphere.” Helstoski, 442 U.S. 477, 491. The privilege was “designed to preserve legislative independence, not supremacy.” Brewster, 408 U.S. at 508, and, as such, the Clause’s protections do not apply to “everything a Member of Congress may regularly do.” Doe v. McMillan, 412 U.S. 306, 311, 313 (1973).

Importantly, the Clause does not provide members of Congress with carte blanche to carry out any action in the name of official duty and escape complete scrutiny and accountability. As the Supreme Court has repeatedly stressed, the purpose of the Clause was not “to make Members of Congress super-citizens, immune from criminal responsibility,” Brewster, 408 U.S. at 516. nor to offer privileges to those that “violate an otherwise valid criminal law in preparing for or implementing legislative acts.” Id. at 626. Essentially, as noted in a Congressional Research Service report on the Clause, it “does not immunize criminal conduct that is clearly no part of the ‘due functioning’ of the legislative process.” For example, the Clause has accordingly been expressly held not to protect Senators or Representatives against bribery charges. Johnson v. United States, 383 U.S. 169 (1964).

The privilege extends only to those acts that are an “integral part of the deliberative and communicative processes” through which members of Congress engage either in “the consideration and passage or rejection of proposed legislation” or “other matters which the Constitution places within the jurisdiction of either House.” Gravel, 408 U.S. at 625.

Is the Conduct a “Legislative Act”?

Often the key question in Speech or Debate Clause cases is whether the relevant conduct, or on which evidence or testimony is sought, properly constitutes a “legislative act.” Johnson, 383 U.S. at 185; Brewster, 408 U.S. at 512; Gravel, 408 U.S. at 625. See also, U.S. v. Renzi, 651 F.3d 1012, 1021.,

If legislative, the Member is – and rightly so – immune from any criminal or civil liability that may otherwise have attached to that act, and evidence of the act shall not be introduced in any subsequent trial, or testimony by the Member compelled, for example, by subpoena. McMillan, 412 U.S. at 312-13. However, acts determined by the court to be non-legislative will not receive the privilege.

The Supreme Court has consistently emphasized that “legislative acts are not all-encompassing.” Gravel at 625. The courts have never “treated the Clause as protecting all conduct relating to the legislative process.” Brewster, 408 U.S. at 515. The privilege is limited solely to legislative acts “generally done in a session of the House by one of its members in relation to the business before it,” Kilbourn v. Thompson, 103 U.S. 168, 204 (1881); see also Gravel 408 U.S. at 617-18. Merely performing certain duties in an official capacity as a Member of Congress does not ipso facto make those duties legislative. Fowler-Nash v. Dem. Caucus of Pa. House of Rep., 469 F.3d 328, 336-37 (3d Cir. 2006). In fact, Members “engage in many activities other than the purely legislative activities protected by the Speech or Debate Clause.” Brewster, 408 U.S. at 512; accord Doe v. McMillan, 412 U.S. 306, 313 (1973). When Members of Congress engage in categories of conduct which are not legislative but instead, for example, political, such conduct does not enjoy privilege protection. Id. Thus, as the D.C. Circuit noted, the Clause “protects conduct that is integral to the legislative process, not a Member’s legislative goals.” Fields v. Off. of Eddie Bernice Johnson, 459 F.3d 1, 12 (D.C. Cir. 2006).

IV. Analysis of the Perry Case

As part of our analysis below, we now turn to the two issues argued before the court of appeals, and further address the law on matters which do not fall within the protection of the Speech or Debate Clause.

Unauthorized informal legislative fact-finding

In response to the first question, we take the view that informal legislative fact-finding in the absence of official authorization should not be protected under the Clause. In the alternative, even if privilege protection would extend to informal legislative fact-finding, much of Perry’s conduct (that prosecutors will likely be concerned with) could not properly be categorized as such. Instead, the evidence suggests that a lot of what Perry did to support Trump’s efforts could only properly be categorized as non-legislative acts.

The court in McSurely v. McClellan, 553 F.2d 1277 (D.C.Cir. 1976) (en banc) offers a helpful rebuttal to the contention that privilege should attach to informal legislative fact-finding by individual members of Congress in the absence of official authorization.

The court said that it had “no doubt that information gathering, whether by issuance of subpoenas or field work by a Senator or his staff, is essential to informed deliberation over proposed legislation.” Id, at 1286. However, it underlined that there are ““finite limits”” to the Clause, including the “requirement of congressional authorization” Id. at 1286-87, citing Eastland v. United States Servicemen’s Fund, 421 U.S. 491 (1975) (emphasis added).

In Thursday’s hearing, speaking of Supreme Court and DC Circuit case law, Judge Rao said, “There are no cases specifically about individual member fact-finding. … So actions that come from a committee or a subcommittee are really by definition legislative acts. They are acts of Congress or a subcomponent of Congress” (time stamp 11:15).

The Supreme Court went even further, adding even where there is “broad authorization” for a member to carry out an investigation, they are:

“not free to use every conceivable means to obtain investigatory materials, without fear of criminal prosecution or civil suit. The Court has taken “a decidedly jaundiced view towards extending the Clause so as to privilege illegal or unconstitutional conduct beyond that essential to foreclose executive control of legislative speech or debate and associated matters such as voting and committee reports and proceedings.” Gravel v. United States,408 U.S. at 620, 92 S.Ct. at 2625. In Gravel the Court held the Senator and his aide immune from questioning with respect to conduct that transpired at a committee hearing, but refused to extend immunity to grand jury questioning concerning third-party crime or criminal conduct by the Senator or his aide related to preparation for the hearing. Thus, the grand jury was permitted to “trac[e] the source of obviously highly classified documents that came into the Senator’s possession,” provided “no legislative act is implicated by the questions,” id. at 628, 92 S.Ct. at 2628, notwithstanding the fact that those documents were an integral part of the preparation for the committee proceeding that was held protected conduct.” Id. at 1287.

Perry may seek to argue that his communications with Trump officials, election officials, and Justice Department officials were all informal fact-finding with the view to informing his position when it came to passing his vote on Jan. 6. Admittedly, the act of voting is a legislative act and thus some fact-finding inquiries taken to better inform that voting decisions could be protected by the Clause.

However, as emphasized by the McSurely court, authorization to carry out investigative activity is required in order to have a chance of asserting privilege. As we know, Perry’s conduct was not authorized. Even if Perry somehow did have the authorization to carry out informal investigations, including field work, into his alleged concerns around the 2020 election result, the large majority of the communications Perry undertook fall squarely outside the ambit of Speech or Debate immunity. We address each of these below.

Perry’s actions, including those in late December and early January, cannot be properly characterized as informal fact-finding. His actions were not taken with the view to informing his voting decision on January 6th. He had already made up his mind months before. Perry did not seek to acquire knowledge through informal sources in order to discharge his constitutional duties. Quite the opposite. He sought to impress his idea of valid information, that the election result was wrong, on top DOJ officials in an effort to use their powers and influence, for example, to push state legislators into changing the election results. He did not seek to better inform his position, but instead influence the Executive branch to reverse its assessment that there was no evidence of substantial voter fraud.

Efforts to Influence Executive Conduct

Most importantly, the courts are in general agreement that communications by legislators that include efforts to influence the conduct of the Executive Branch will not be considered legislative acts. See Hutchinson, 443 U.S. at 121 n.10; United States v. Johnson, 383 U.S. 169, 172 (1966); Chastain v. Sundquist, 833 F.2d 311, 314-15 (D.C. Cir. 1987); Payne v. District of Columbia, 859 F. Supp. 2d 125, 134 (D.D.C. 2012); Jewish War Veterans of the U.S. of Am., Inc. v. Gates, 506 F. Supp. 2d 30, 54 (D.D.C. 2007). As the Supreme Court explained in Gravel, Members of Congress “may cajole, and exhort with respect to the administration of a federal statute—but such conduct, though generally done, is not protected legislative activity.” 408 U.S. at 625. The Third Circuit in Menendez took a slightly different position, that “informal efforts to influence the Executive Branch are ambiguously legislative in nature and therefore may (or may not) be protected legislative acts depending on their content, purpose, and motive.” 831 F. 3d 155 at 168. See also McDade, 28 F.3d at 300. However, the court did agree with Gravel, and was clear that privilege would not be extended to “efforts to intervene in decisions pending before the Executive Branch that would mainly affect one particular party.” Id.

Public Statements

The Supreme Court in Hutchinson v. Proxmire held that public statements uttered outside the context of official congressional proceedings constitute another category of “non-legislative” activity, even when they are issued in furtherance of the “informing function” of Congress. 443 U.S. at 127-33.

Third-Party and Logistical Communications

A further category of communication not generally covered by privilege is third-party and logistical communications: For example, “communications between legislators and constituents, lobbyists, and interest groups are not entitled to protection under a legislative privilege.” Texas v. Holder, No. 12 Civ. 128, 2012 WL 13070060, at *2 (D.D.C. June 5, 2012) (Tatel, Collyer, Wilkins, JJ.); accord Bastien v. Off. of Senator Ben Nighthorse Campbell, 390 F.3d 1301, 1316 (10th Cir. 2004). Further, “meeting arrangements are only ‘casually or incidentally related to legislative affairs’ and are not part of the legislative process itself.” U.S. Merit Sys. Prot. Bd. v. McEntee, No. 07 Civ. 1936, 2007 WL 9780552, at *3 (D. Md. Dec. 13, 2007) (quoting Brewster, 408 U.S. at 528).

Irrespective of whether such conduct is criminal, it is, at minimum, “in no wise related to the due functioning of the legislative process.” Brewster, 408 U.S. 501, 525 (1972). Accordingly, when Members engage in the above categories of conduct, they do not enjoy the legislative privilege.

General “Non-Disclosure Privilege” of Documents and Other Records

There appears to be a fair degree of consensus that the Speech or Debate Clause provides three clear protections: immunity from direct liability for legislative activities; prohibition on the use of legislative-act evidence in litigation (evidentiary privilege); and protection of legislators from being compelled to respond to questioning regarding their legislative acts (testimonial or non-disclosure privilege). Renzi, 651 F.3d at 1035 n. 27; Howard v. Office of the Chief Administrative Officer of the United States House of Representatives, 720 F.3d 939, 946 (D.C. Cir. 2013).

However, as a Congressional Research Service report explains, there is “stark disagreement” between the Circuits as to whether the Clause provides for a general documentary “non-disclosure privilege” that applies irrespective of whether such documents are introduced into evidence. Essentially, the issue is whether a member of Congress is permitted to refuse to disclose any information on matters which fall within legislative activities including at the stage of a criminal investigation as well as at trial.

The D.C. Circuit has generally endorsed the additional privilege, viewing it as part of the testimonial component of the Clause, and found that it may apply in protecting Members from compelled compliance with administrative or civil subpoenas for legislative-act documents (see Comm. on Ways & Means, 161 F. Supp. 3d at 238-45; MINPECO, S.A. v. Conticommodity Services, Inc., 844 F.2d 856, 857-59 (D.C. Cir. 1988); Brown Williamson Tobacco v. Williams, 62 F.3d 408, 420).

The D.C. Circuit Court in United States v. Rayburn House Office Building extended the reach of this privilege even further, finding that it also applied to the criminal context, specifically where the government executes a search warrant as part of a criminal investigation of a Member. “[T]here is no reason to believe that the bar [in Brown & Williamson] does not apply in the criminal as well as the civil context.” 97 F.3d at 656, 660.

The issue in Rayburn focused on whether the FBI executed a search warrant of the Congressman’s office in violation of the Clause. In short, the court found that the search did violate the Clause because the government “denied the Congressman any opportunity to identify and assert the privilege with respect to legislative materials before their compelled disclosure to Executive agents.” Id. at 662. Despite the limited scope of the warrant (for non-legislative, unprotected documents only), the FBI’s initial review of the Member’s papers to distinguish between those protected and those not protected “must have resulted in the disclosure of legislative materials to agents of the executive.” Id. at 661. Thus the court found that the “compelled disclosure” was inconsistent with the protections of the Clause, specifically the testimonial privilege encompassing the nondisclosure right. Id. Unhelpfully, the court did not provide a clear acceptable procedure for avoiding a violation, except for stating that there appears to be “no reason why the Congressman’s privilege under the Speech or Debate Clause cannot be asserted at the outset of a search in a manner that also protects the interests of the Executive in law enforcement.” Id. at 662.

The position taken in Rayburn isn’t without its opposition. Notably, Judge Henderson—who sat on the Rayburn court and now sits on the panel deciding the Perry case, wrote a concurring opinion stating that the majority opinion “vastly over-read” the decision in Brown & Williamson. Henderson opined that with search warrants, unlike with subpoenas (like in the case of Brown & Williamson):

“[t]he property owner is not required to respond either orally or by physically producing the property, including records. Cf. Johnson v. United States, 228 U.S. 457, 458, 33 S.Ct. 572, 57 L.Ed. 919 (1913) (under Fifth Amendment ‘[a] party is privileged from producing the evidence, but not from its production’). The FBI agents’ execution of the warrant on Rep. Jefferson’s congressional office did not require the latter to do anything and accordingly falls far short of the question[ing]’ the court in Brown & Williamson found was required of a Member in response to a civil subpoena.”

As such, Henderson was of the view that Brown & Williamson’s non-disclosure rule “does not extend to criminal process.” Id. at 669-70.

The Third and Ninth Circuits have also broadly rejected the majority opinion in Rayburn House, holding instead that, at least in the criminal context, the Clause prohibits only the use of privileged documents as evidence in proceedings, not merely their disclosure to government investigators for review as part of an ongoing investigation. See Renzi, 651 F.3d at 1032-39; Fattah, 802 F.3d at 524-29; In re Grand Jury Investigation, 587 F.2d 589, 595-97 (3rd Cir. 1978).

As noted by the court in Rayburn, the matter has yet to be addressed by the Supreme Court.

Other Matters

Notably, the D.C. Circuit takes the view that “where it is not a Member who is subject to criminal proceedings, that the privilege might be less stringently applied when inconsistent with a sovereign interest.” Rayburn House, 497 F.3d at 663. So, for example, if DOJ is instead searching for evidence of crimes committed by third-parties such as Jeffrey Clark who is reportedly under investigation, a Member may have less success in claiming privilege.

According to Perry’s attorney, after receiving his phone back from agents, “The Justice Department informed us that Representative Perry is not a target of its investigation.”

During Thursday’s hearing, Judge Neomi Rao probed whether the non-disclosure immunity, in particular, could be waived like other immunities when communicating with individuals not covered by the privilege. The distinction discussed in Rayburn House may give even greater reason to finding such a waiver here.

Although the warrant in the Perry case is sealed, the warrant in the search of Clark’s home and seizure of his phone “ indicated that prosecutors are investigating Mr. Clark for charges that include conspiracy to obstruct the certification of the presidential election,” according to the New York Times.

V. Conclusion

To the extent the Justice Department seeks data from Rep. Perry’s phone concerning conduct that qualifies as non-legislative, the privilege does not apply. The Justice Department should have ample room to obtain the most relevant information from Rep. Perry’s phone. The Speech and Debate Clause has “finite limits” and the specific facts of the congressman’s communications fall outside those limits.

We thank Amalia Diamond, Simone Rothstein, Sasha Matsuki, Natalie Fulton, and Michael Nevett for assisting with research, fact-checking and proofreading.

Photo credit: U.S. Rep. Scott Perry (R-PA) walks back to the House Chamber during the third day of elections for Speaker of the House at the U.S. Capitol Building on Jan. 05, 2023 (Nathan Howard/Getty Images)

The post Speech or Debate Immunity Will Not Protect Scott Perry’s Phone appeared first on Just Security.

First some background. News initially broke more than five years ago that hundreds of thousands of dollars were spent in the run up to the 2016 presidential election to secure the silence of Karen McDougal and Stephanie Clifford, aka Stormy Daniels, about sexual encounters with Trump. Within a year of those revelations, Trump’s fixer and attorney at the time, Michael Cohen, was convicted and sentenced in federal court for his role in the scheme. That included violations of federal law because the hush money payments benefited the campaign but exceeded legal limits on the amount and source of campaign contributions. (Disclosure: one of the authors, Perry, represented Cohen in a challenge asserting the violation of his constitutional rights in connection with his federal sentence.)

The criminal charges to which Cohen pled implicated Trump as “Individual-1,” but Trump was apparently not charged federally due to Justice Department guidance that it could not indict a sitting president. The Manhattan DA at that time was also investigating the payments as part of a much larger review of all of Trump’s alleged financial misdeeds. But that hit something of roadblock after Bragg took over the office in 2022.

Now, after nearly another year has lapsed, Bragg reportedly has resuscitated at least this narrow strand of the investigation into the hush money payments. That includes bringing multiple witnesses to the grand jury and subpoenaing phone records and other documents. While it is unclear why the case had apparently been dormant for so long, we support Bragg’s review of the hush money payments and hope—and suspect—it portends a revivification of other aspects of the broader investigation.

As a baseline matter, the evidence that the former president committed crimes seems powerful. In Cohen’s guilty plea, he stated under penalty of perjury that Trump “directed him to commit a crime by making payments to two women for the principal purpose of influencing an election.” That testimony is supported by an audio recording in which Cohen and Trump discussed the hush money payment to McDougal and how it could be accomplished surreptitiously through a shell company. Trump has also indicated more than once that he was directly involved in the payments to Clifford including saying in 2018 that the payments “came from me.” He made a further admission last week on his social media platform, Truth Social, apparently acknowledging that he coordinated with Cohen to make the payments.

And all of this is backed up by the Trump Organization’s internal business records, falsely describing the reimbursements to Cohen as “legal expenses.” Trump himself signed six of the repayment checks, including while in the Oval Office. Under New York law, it is a criminal offense to falsify such business records—and a felony to do so if the offense occurs with the intent to commit “another crime,” such as these illegal campaign contributions to which Cohen pled guilty.

Although the wrongdoing seems straightforward, Bragg faces a series of hurdles in charging and convicting Trump. Some of these are identified in the new book by Pomerantz, who also discusses how to overcome them and ultimately supports bringing the case.

Legal Hurdle 1: Statute of limitations

The first hurdle, and one not discussed in the book, is that the core underlying conduct occurred at the end of 2016. So six years and counting have passed, whereas charges in a case of this kind must usually be brought within five years. The New York legislature has determined that this is the cut off for all but a handful of crimes, generally violent ones such as murder or terrorism not here at issue. Even if we count from the date of the final payment on December 5, 2017, that was more than five years ago.

But there are exceptions that allow Bragg to overcome this hurdle. For example, under New York law, the statute of limitations is “tolled” (that is, stops running) when a defendant is “continuously” outside of the state. That makes sense: when a defendant is out of New York, it is more difficult to bring them into court, and it is only fair that the prosecution has more time. New York’s highest court has interpreted that statute to mean that “all periods of a day or more that a nonresident defendant is out-of-State should be totaled” to determine how long the statute of limitations must be tolled. And the appellate court in Manhattan has found that such tolling applies to residents and nonresidents alike.

The residency distinction is potentially important, as Trump officially changed his residence from Manhattan to Florida only in September 2019. Nevertheless, that judicial decision is currently being reviewed by the Court of Appeals. Although we think the logic of the decision concerning tolling is valid and likely to be upheld, there remains a possibility that it will be overturned.

Trump apparently spent only a small portion of his four-year presidency in New York. Even if he spent a majority of his time since leaving the White House in New York (which of course he has not), the Manhattan District Attorney’s office would still have many months and possibly years on the clock, whatever the Court of Appeals decides. That is because the clock definitively stopped running once Trump officially became a nonresident living out of state in 2019, and may even have been stopped for bulk of his presidency. The Manhattan DA therefore has ample time to prosecute—despite a number of recent statements by Trump proclaiming that the statute of limitations has run out.

Other tolling exceptions might also apply to allow for more time to prosecute. For example, former Governor Andrew Cuomo in 2020 issued executive orders to suspend criminal statutes of limitations due to delays caused by COVID-19. Although there is some disagreement in New York courts as to the effect of those orders, they provide yet another potential justification to push back the time limits on bringing charges.

Legal Hurdle 2: Nexus to “another crime”

If Bragg can make it past the statute of limitations issue, then he confronts a second and perhaps even tougher legal hurdle. Even if Trump committed the crime of keeping false books and records, the statute requires proof that he did so to further “another crime” for the violation to be a felony. The problem here is that the clearest example of other crimes are violations of federal law, including federal campaign finance laws and potentially mail and wire fraud that could also trigger money laundering statutes. According to news reports and Pomerantz’s account, some in the DA’s office had questioned whether falsifying a business record to commit a federal crime—rather than a New York crime—meets the requirements of the relevant statute.

Here too, there is a path for Bragg, though it is steep. The relevant portion of the statute states that “A person is guilty of falsifying business records in the first degree … when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.” The text seems plain enough: there is no statement that this provision applies only to state offenses, and there is no exclusion of federal crimes. It is true that if you work your way through the statutory definitions of some of the terms in the statute, and the definitions of the definitions, you will find references to state law, but they are ambiguous and may well encompass federal law.

As Pomerantz points out, there is risk but Bragg could succeed here, including because there are no court decisions actually interpreting what constitutes “another crime,” for the purposes of this statute. But, on the plus side, there is no shortage of cases in which defendants have been charged in New York for falsifying records to conceal a federal crime. Indeed, Trump’s CFO, Allen Weisselberg, was just convicted of a state felony based on false entries made in federal tax forms.

Moreover, the DA can also rely on principles of statutory interpretation. That is, when judges are interpreting a statute that is silent about a point like this, they look to similar statutes for guidance. For example, New York’s sentencing law does expressly exclude consideration of certain non-New York conduct. A court could hold that if legislators want to limit the scope of a law exclusively to state offenses, they know how to do it. The legislature’s silence about whether federal offenses can qualify as a “crime” under the statute could then be interpreted to mean that it does.

Nor should Bragg give up on developing evidence of state crimes that could elevate Trump’s possible books and records violation into a felony. A useful part of Pomerantz’s book is his description of his effort to do just that. The possibilities did not fly at the time, but we think that the questions merit a fresh look. For example, conduct constituting federal criminal violations can sometimes transgress parallel state statutes as well. According to press reports, the DA is evaluating this prospect as to New York state campaign finance laws, although the details have not been disclosed.

We don’t doubt that Pomerantz gave this his best shot, and that the DA is doing so again. But one utility of the new book is that it allows us all to see where the issues are and to participate in crowd sourcing solutions. We will be delving more deeply into this topic in the second essay in this series.

Hurdle 3: Evidence at trial

That brings us to a third hurdle in any prosecution of Trump: the means by which Bragg will have to present his case to a jury. The DA would likely rely heavily on the testimony of the go-between for the payments, Michael Cohen—a convicted felon and a controversial figure who some say is tarnished as a witness. Pomerantz writes that some in the DA’s office shared those concerns, although he ultimately found Cohen truthful and compelling.

We agree. Prosecutors often have to rely on cooperating witnesses who participated in a crime to prove their case. Cohen accepts responsibility for his wrongdoing, which goes a long way with a jury. Moreover, Cohen has already served his time, so he does not stand to benefit from a potential sentencing reduction—and therefore, the prosecution will argue, is less motivated to fabricate testimony in the way that a typical cooperator praying for leniency is.

We also expect a jury to find his testimony credible because the alternative is too implausible. Who would believe that Cohen decided to spend $130,000 of his own money without discussion or direction from his boss, the beneficiary of the scheme? Cohen’s version of events is, on the other hand, entirely believable—that Trump knew of the plan and ordered him to execute it. And it is corroborated by much other evidence such as the audio tape of Cohen’s conversation with Trump; the latter’s admissions; evidence of two phone calls between Cohen and Trump shortly before Cohen wired the hush money payment; and the documentation for reimbursing Cohen, including checks bearing Trump’s signature.

Hurdle 4: Advice of counsel defense

A fourth hurdle will be overcoming the defenses Trump may raise, and indeed already is advancing in the public arena. Chief among them is “advice-of-counsel,” as Trump has himself proclaimed on Twitter years ago and more recently Truth Social. For example, he just declared that “I placed full Reliance on the JUDGMENT & ADVICE OF COUNCIL, who I had every reason to believe had a license to practice law, was competent, & was able to appropriately provide solid legal services … [T]here was NO reason not to rely on him, and I did.”

Under New York law, that defense would require Trump to prove not only that Cohen told him the hush money payments were legal but also that Trump relied on that advice in good faith. The defense has some surface plausibility, and Trump is undoubtedly echoing what his lawyers are telling him now that Bragg seems to be moving ahead.

But Cohen himself will surely deny he made any such claim to Trump. If Trump testifies to the contrary (and taking the stand will be a most risky proposition), it is fair to wonder who the jury will believe particularly when prosecutors will cross-examine Trump using at least some of the more relevant among his 30,000 proven lies. If Trump does not testify, it would be difficult or impossible for him to establish this defense.

As for Trump’s good faith reliance, the evidence is also to the contrary. By the time of these payments, Trump was a political contributor and candidate of long experience. The rules about the amounts and sources of permitted payments to benefit a campaign are well-known. It is implausible that he would have ever believed that the hush money scheme was legal, a point that is hammered home by the elaborate secrecy and the other evidence we detail above. This presents a separate problem for Trump: courts have found that a defendant cannot raise this defense if their attorney was an accomplice. That would likely be the case here if both Trump and Cohen knew that any such legal advice was being offered in furtherance of a crime. Given all the evidence, Bragg should be able to vanquish this defense.

Hurdle 5: Sentencing and jail time

A fifth and final hurdle is sentencing. Cohen was sentenced to three years. But he pleaded to eight counts in federal court, including a charge that carried a maximum possible sentence of 30 years. If Bragg charged Trump only with a books and records violation based on the hush money payments, Trump would likely not be looking at jail time. That is true even if the charge were elevated to a felony; felony falsification of business records is a “class E” felony, which is the lowest level felony in New York, and the classification that carries the lowest possible sentence—in this case, a maximum of four years. Despite incarceration being legally possible, first-time criminal defendants facing these kinds of non-violent low-level felonies in New York do not tend to get jail time.

But if Bragg were to situate the hush money charges in a broader context of other financial frauds and charges, that could substantially increase the sentence Trump would be facing and make jail time much more likely. That likely explains why the DA is putting the possibility of Weisselberg’s prosecution or cooperation back on the table with reports that Trump’s former aide is facing new potential insurance fraud charges. Weisselberg is 75 years old and is currently serving a 5-month sentence at Rikers Island. The prospect of more jail time could be enough for him to turn on his boss, despite years of having refused to do so. If he flips, further charges against Trump may include not only those insurance issues, but additional counts of falsifying business records, tax fraud, and enterprise fraud.

One of the contributions of Pomerantz’s book is to make clear the substantial basis for those broader charges. Indeed, long before he published, two of the authors of this essay released an extensive report that came to similar conclusions about the larger financial fraud case. That analysis is vindicated by the new book, and we hope Bragg will pick up some of its elements.

Whether or not those broader additional charges are brought, the facts and law afford DA Bragg a path to Trump’s indictment and conviction for his role in the hush money payments. The integrity of our elections and the interests of justice wait to be vindicated. The legal obstacles, as helpfully dissected by the Pomerantz book, are real but we think can be overcome. While many would have liked to see Bragg push this case forward long ago, we are hopeful that justice delayed will not be justice denied.

IMAGE: (L) Manhattan District Attorney Alvin Bragg speaks at a press conference after the sentencing hearing of the Trump Organization at the New York Supreme Court on January 13, 2023 in New York City. (Photo by Michael M. Santiago/Getty Images); (R) Former U.S. President Donald Trump speaks at the New Hampshire Republican State Committee’s Annual Meeting on January 28, 2023 in Salem, New Hampshire. (Photo by Scott Eisen/Getty Images)

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Even critics of Garland’s decision should recognize that the optics would be less than ideal if he proceeded without a special counsel. Trump just this week formally announced that he will be running to return to the Oval Office. And President Joe Biden has said that his intention is to run for reelection. It was therefore a prudent decision, and within the DOJ’s regulations, for Garland to take this course of action, even if a special counsel appointment is typically used when investigating a political figure within the executive branch.

Those rules provide that if there is either “a conflict of interest for the Department or other extraordinary circumstances” and “it would be in the public interest,” the Attorney General will appoint a special counsel. For the political appointee of the president to investigate and perhaps prosecute Biden’s leading political opponent is, as Garland rightly noted, an “extraordinary circumstance.” And removing any risk of potential taint serves the public interest.

If the facts demonstrate Trump violated the law, we have no doubt that the Special Counsel will pursue indictment. As a veteran former federal prosecutor with more than 16 years of experience at the Department of Justice, Smith is well aware of the Department’s policy that suggests prosecution when, among other things, “the person’s conduct constitutes a federal offense,” and “the admissible evidence will probably be sufficient to obtain and sustain a conviction.”

Our pros memo supports the conclusion that Trump has committed a number of felonies, and that the facts will be sufficient to obtain and sustain a conviction. The pros memo outlines the strong case that could be brought against Trump in connection with his mishandling of classified and other government documents at Mar-a-Lago, as well as obstruction of the investigation by the National Archives and the Justice Department. Some of us have also been involved in carefully tracking the evidence against Trump related to the events of January 6, and the facts, while far more complicated, may well support prosecution in that case as well.

Of course, we surely do not have all the facts. There may or may not be additional exculpatory evidence out there—or proof of the inculpatory variety. In either event, Smith’s reputation for prosecutorial tenacity suggests he will fill those gaps.

An important question, however, is how long it will take to do so. Garland, in his statement appointing the Special Counsel, said, “I am confident that this appointment will not slow the completion of these investigations.” Smith also committed to acting with dispatch. It is badly needed.

Nearly two years have elapsed since January 2021, when the potentially criminal pattern of conduct under the Special Counsel’s purview culminated. For our pros memo, we reviewed every prior prosecution for mishandling classified information in the United States. Those precedents show that the DOJ usually brings charges within one to two years after the offense was committed, and sooner when discovery of the unlawful taking of the documents follows on the heels of the crime.

As our model pros memo details in its compilation of prior DOJ precedent, literally any other American who had concealed classified documents would likely have already been subject to prosecution—and where the former president concealed hundreds including some of the nation’s most sensitive secrets—the rule of law demands expeditious action.

Some are understandably skeptical whether justice will be timely obtained, or obtained at all, given Trump’s record of evading legal consequences. History elevates that concern. Of the many lawyers appointed as special counsel, dating back to Archibald Cox as “special prosecutor” related to Watergate, no indictment against a sitting or former president has ever been filed. But each of those cases had serious impediments to prosecution that simply do not appear to be present here.

Some of those cases involved a sitting president, preventing—at least according to DOJ policy—criminal prosecution. We know this policy motivated the lack of affirmative conclusions of criminal conduct in Special Counsel Robert Mueller’s 2019 report. Mueller said so. That hands-off approach to a sitting president also explains why Richard Nixon was not prosecuted prior to his resignation (though, but for President Ford’s pardon, he may well have been subject to a post-presidential indictment).

Importantly, there is simply not that much precedent for the times we are in (which is a fortunate thing). And none of the previous cases involved evidence of criminal conduct after leaving office. Whatever constitutional or prudential considerations might militate against pursuing criminal charges against a sitting president for conduct during their tenure, none apply once that person has returned to life as a private citizen.

On the contrary, ex-presidents should not be treated any differently than other Americans. Being elected president is not a lifelong grant of criminal immunity. That protection is something that applies only in monarchies and tyrannical regimes. The rule of law requires that its operation applies to each of us equally. Indeed, having been the leader of the free world, and the head of our law enforcement and intelligence communities, should mean a greater, not lesser, obligation to adhere to the law by a former president.

The ultimate responsibility for that accountability lies not only with Smith but also with the Attorney General. Under DOJ regulations, the Special Counsel will ultimately need to notify Garland if he determines to charge Trump. That gives the Attorney General the authority to stop the action (triggering reporting requirements to Congress) or to allow it to proceed.

Just as the voters of this country resoundingly pushed back in the 2022 election against candidates attempting to nudge our nation toward autocracy, we expect Smith will do his duty, and ensure the promise of equal justice under law. The analysis in our pros memo points to his recommending charges and Garland accepting that recommendation. We hope that will come sooner rather than later.

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This model prosecution memorandum (or “pros memo”) assesses the potential charges against former President Donald Trump emanating from his handling of classified documents and other government records since leaving office on January 20, 2021. It includes crimes related to the removal and retention of national security information and obstruction of the investigation into his handling of these documents. The authors have decades of experience as federal prosecutors and defense lawyers, as well as other legal expertise. Based upon this experience and the analysis that follows, we conclude that there is a strong basis to charge Trump.

Before indicting a case, prosecutors prepare a 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 prosecution. Before a decision is made about this matter, prosecutors will prepare such a memo.

But such a DOJ memo will be confidential, in part because it will contain information derived through the grand jury and attorney work product. Since that document will not be publicly available, we offer this analysis. Ours is likely more detailed than what DOJ may prepare internally. 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:

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, False Information, Contempt
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)

Based on the publicly available information to date, a powerful case exists for charging Trump under several of these federal criminal statutes.

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 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 ultimate charging decision. Instead, we stop at noting that there is a strong basis to charge based upon the public record, and that charges would be called for by Department precedent in like 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.

Just Security Mar a Lago Model Prosecution Memorandum November 2022 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. Department of Justice, Attorney General Merrick Garland Delivers Remarks (Aug. 11, 2022), https://www.justice.gov/opa/speech/attorney-general-merrick-garland-delivers-remarks. ↑
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, please see (https://democracy21.org/category/news-press/press-releases). ↑

Photo credit: Coolcaesar from Wikimedia Commons

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In this latest edition of our January 6th Hearings Criminal Evidence Tracker, we add the evidence set forth in the eighth and ninth hearings to our prior inventory. The eighth hearing focused almost entirely on Trump’s failure to act to protect the Capitol in the hours following his rally. The ninth hearing was more broad ranging, providing key details about Trump’s intent and knowledge both before January 6 and on the day itself—as well as presenting some of the more damning evidence from a recently obtained cache of records from the United States Secret Service.

With this update of the tracker we have now cataloged the substantial new evidence all nine hearings have derived in support of the subpoena—and of possible criminal charges against Trump. The tracker is available below and as a PDF.

The Eighth Hearing

The committee’s eighth hearing featured a wide range of witnesses, both live and in recorded depositions and interviews. Those witnesses provided a striking account of Trump’s recalcitrance to make a public statement telling his supporters to leave the Capitol. That account is made all the more remarkable by evidence the committee presented that many close associates and others were imploring him to act. Many of those pleas were made to Trump’s Chief of Staff, Mark Meadows. Others were communicated to Trump directly.

Perhaps the most extraordinary communication of that kind concerned a reported conversation between House Minority Leader Kevin McCarthy (R-Calif.) and Trump. According to Rep. Jaime Herrera Beutler (R-Wash.), Rep. McCarthy told Trump, “You have got to get on TV, you’ve got to get on Twitter, you’ve got to call these people off.” Trump’s response was reportedly flippant. Trump allegedly told Rep. McCarthy that the rioters weren’t “his people”—saying instead they were Antifa. Rep. McCarthy doubled down on his plea, telling Trump he was wrong and describing the chaotic scene around him. Rioters “literally just came through my office windows and my staff are running for cover,” Rep. McCarthy reportedly told Trump. But Trump was apparently unmoved. According to Rep. Herrera Beutler, Trump changed his explanation, conceding the rioters were his supporters, but now actually justifying their actions: “Well, Kevin, I guess they’re just more upset about the election, you know, theft than you are.”

Others practically begging Trump to issue a statement reportedly included Donald Trump Jr. and Fox News personalities. Trump Jr. texted Meadows at 2:53 p.m., “He’s got to condemn this shit ASAP. The Capitol Police tweet is not enough. … This is one you go to the mattresses on. They will try to fuck his entire legacy if this—on this if it gets worse.” Laura Ingraham texted Meadows at 2:32 p.m., saying, “The president needs to tell people in the Capitol to go home.” Sean Hannity texted Meadows at 3:31 p.m. asking for Trump to make a statement “telling the rioters to leave the Capitol.” Brian Kilmeade texted at 3:58 p.m.: “Please get him on tv. Destroying every thing [sic] you guys have accomplished.”

The committee also presented evidence that there was no possible justification for Trump’s inaction. Testifying live, former Deputy White House Press Secretary Sarah Matthews said that “he could have been on camera almost instantly” and that, if he wanted to make an address from the Oval Office, the White House could have assembled the “press corps probably in a matter of minutes to get them into the Oval for him to do an on camera address.” In a recorded interview, former White House Counsel Pat Cippollone said it would have been possible “at any moment” after learning of the attack on the Capitol for Trump to “walk down to the podium in the briefing room” and issue a statement. Yet despite arriving in the Oval Office at 1:25 p.m., Trump remained in his private dining room until after 4:00 p.m. watching Fox News, according to Rep. Elaine Luria (D-Va.) and others.

The actions Trump reportedly took during that multi-hour period of time are further evidence of criminal intent. The committee provided evidence that Trump spent that time attempting to persuade legislators—who were at the time under attack—to further delay the electoral count. The committee played a television interview with Sen. Tommy Tuberville (R-AL), in which he stated he spoke to Trump during the siege. According to Tuberville, he told Trump that “we’re not doing much work here right now because they just took our Vice President out. And matter of fact I’m gonna have to hang up on you. I’ve got to leave.”

The Ninth Hearing

In its ninth and possibly final hearing, held on October 13, the committee’s new evidence focused on demonstrating that Trump knew he lost the election and that he knew of the risk of violence in advance of January 6, while also presenting newly obtained records from the U.S. Secret Service. Several witnesses in recorded interviews recounted statements by Trump in which he acknowledged he lost the election. Recalling a conversation with Trump after the election, Chairman of the Joint Chiefs of Staff Gen. Mark Milley said Trump told him “words to the effect of, ‘yeah, we lost. We need to let that issue go to the next guy,’ meaning President Biden.” Alyssa Farah, White House Director of Strategic Communications and Assistant to the President under Trump, testified in a recorded interview that a week after the election, Trump “was looking at the TV, and he said, ‘Can you believe I lost to this effing guy?’”

Recorded testimony from Cassidy Hutchinson—the star witness in the committee’s sixth hearing—was also played to provide evidence that Trump knew he lost. Hutchinson testified that she was present with Mark Meadows and Trump in December 2020. According to Hutchinson, Trump said to Meadows “something to the effect of, ‘I don’t want people to know we lost, Mark. This is embarrassing. Figure it out. We need to figure it out. I don’t want people to know that we lost.’” Hutchinson said that on another occasion, Meadows had told her, “You know, a lot of times he’ll tell me that he lost, but he wants to keep fighting it. He thinks that there might be enough to overturn the election, but you know, he pretty much has acknowledged that he lost.” Immediately after the Jan. 2 call with Georgia’s Secretary of State Brad Raffensperger, Meadows allegedly told Hutchinson, “Cass, you know, he knows it’s over. He knows he lost, but we’re going to keep trying. There’s some good options out there still.”

The committee also presented evidence that Trump took official actions that suggested he knew he had lost the election. Keith Kellogg (National Security Advisor to Pence), Douglas Macgregor (former Senior Advisor to the Acting Secretary of Defense), John McEntee (former Director of the Office of Presidential Personnel), and Milley all testified in recorded interviews that Trump signed a memo on November 11, 2020, ordering that troops be withdrawn from Afghanistan and Somalia. Rep. Adam Kinzinger (R-Ill.) summarized the import of the memo: “Keep in mind the order was for an immediate withdrawal. It would have been catastrophic. And yet, President Trump signed the order. These are the highly consequential actions of a President who knows his term will shortly end.”

Other evidence that Trump was aware of the risk of violence on January 6 was also presented.  According to Rep. Adam Schiff (D-Calif.), “Days before January 6, the President’s senior advisers at the Department of Justice and FBI, for example, received an intelligence summary that included material indicating that certain people traveling to Washington were making plans to attack the Capitol. This summary noted online calls to occupy federal buildings, rhetoric about invading the Capitol building, and plans to arm themselves and to engage in political violence at the event.”

The committee also presented a substantial amount of material from the Secret Service that had not previously been available as to their advance assessment of the risks that would be present on January 6. Although it is not clear how much of this was relayed to Trump, it seems likely he was briefed on at least some of the reports. In a Secret Service report dated December 26, 2020, the FBI had received a tip that the Proud Boys planned to march armed into D.C. with enough people to “outnumber the police so they can’t be stopped.” The source said that “their plan is to literally kill people.” On December 30, 2020, the Secret Service received reports about a spike of violent rhetoric on the social media platform Parler. A December 31, 2020, Secret Service intelligence briefing circulated reports that Trump’s supporters had proposed a movement to occupy Capitol Hill. On January 5, the Secret Service flagged a social media account that threatened to bring a sniper rifle to the January 6 rally, posting a picture of a handgun and rifle. Later that day, the Secret Service learned during an FBI briefing that “right-wing groups were establishing armed QRFs or quick reaction forces readying to deploy for January 6th.” Also on January 5, the Secret Service received alerts regarding threats to Pence, and to storm the Capitol “if he doesn’t do the right thing.”

Other evidence from the Secret Service concerned the agency’s knowledge of, and reaction to, the events on January 6. Beginning with Trump’s rally that morning, the Secret Service reportedly was aware of a number of threats. Rep. Schiff stated that the “documents we obtained from the Secret Service make clear that the crowd outside the magnetometers was armed and the agents knew it.” Early morning reports from the Secret Service documented “ballistic helmets, body armor, carrying radio equipment, military grade backpacks ,” as well as “pepper spray, and … plastic riot shields.” At 11:23 a.m., agents reported “possible armed individuals, one with a glock, one with a rifle.” In the following hour, the Secret Service reported two additional armed individuals in the area. “With so many weapons found so far, you wonder how many are unknown,” one agent wrote at 12:36 PM, “Could be sporty after dark.” At 12:47 PM, another agent responded, “No doubt. The people at the Ellipse said they are moving to the Capitol after the POTUS speech.”

Additional Secret Service records document Trump’s attempts to join his supporters at the Capitol, further supporting the testimony of Hutchinson and Sgt. Robinson in prior hearings. According to a 1:19 p.m. email from Secret Service leadership, they raised concern Trump would engage in an off the record movement to the Capitol. Rep. Pete Aguilar (D-Calif.) noted the Secret Service evidence “shows how frantic this hour must have been for the Secret Service, scrambling to get the president of the United States to back down from a dangerous and reckless decision that put people in harm’s way.”

Finally, the committee provided evidence that Trump made plans to question the integrity of the election before it took place. Specifically, that scheme apparently occurred in reference to mail-in ballots. Testimony from Jared Kushner and Bill Stepien noted that advisors had told Trump that mail-in votes would help him. Trump reportedly rebuffed this advice—perhaps strategizing that he could more easily claim mail-in ballots were fraudulent if he repudiated them. Rep. Zoe Lofgren (D-Calif.) noted at the hearing that because of this strategy, it was expected that votes cast on election day would “would be more heavily Republican and this would create the false perception of a lead for President Trump, a so-called red mirage” that Trump could then claim on election eve was dispositive, which is what he attempted.

What Happens Next?

Taken together, the evidence from the nine hearings is staggering in its moral indictment of Trump. Whether a criminal indictment of Trump is forthcoming is somewhat less clear. At this stage, the committee has gathered more than enough evidence to make a criminal referral for Trump and several of his top advisers. The Justice Department certainly can act even without such a referral. And that’s all based only on the publicly available information we have now. The committee reportedly obtained millions of documents and interviewed more than 1,000 witnesses as part of its investigation. It remains to be seen what will ultimately be included in the committee’s report and just how much evidence against Trump remains behind closed doors. The Committee has certainly substantiated its subpoena to Trump. It remains to be seen whether he will cooperate, defy it, or go to court to litigate. Because the permutations are so numerous it is difficult to predict what the outcomes will be. We will be watching closely and will update our analysis as needed.

We will continue to update our charts in the event of any future developments in relation to the subpoena or the hearings. In the meantime, the current editions are provided below and as a separate PDF.

Readers may also be interested in synopses that accompanied each of the earlier editions following those public hearings, including: the initial introduction as well as introductions to the second, third, fourth, fifth, sixth, and seventh updates.

The January 6th Hearings a … by Just Security

Photo: U.S. Rep. Bennie Thompson (D-MS) (L), Chair of the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol, delivers remarks alongside Vice Chairwoman Rep. Liz Cheney (R-WY) during a hearing on the January 6th investigation in the Cannon House Office Building on October 13, 2022 (Drew Angerer/Getty Images)

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