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

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Now the Delaware state court has decisively ruled that the statements at issue in the case are false. Here’s what the judge wrote on the falsity question (in the only italicized and all-caps sentence in the entire 81-page opinion): “The evidence developed in this civil proceeding demonstrates that is CRYSTAL clear that none of the Statements relating to Dominion about the 2020 election are true.”

That ruling was part of an extraordinary order partially granting summary judgment in favor of Dominion, and completely denying the summary judgment motion brought by Fox News. Summary judgment is when a party argues that a trial is unnecessary because there are no factual disputes for the judge or a jury to decide and because the law can lead only to one outcome (a win for that party and a loss for the other side). In this case, both parties moved for summary judgment, and the judge mostly sided with Dominion and against Fox News.

This outcome is remarkable for those of us with experience litigating defamation cases. Given the high burden in these lawsuits on plaintiffs such as Dominion, judges are typically inclined either to rule for the defendant, or at least to send the case to the jury. It’s far rarer for a court to rule – even partially – for the plaintiff, as the judge did here for Dominion, especially on the central issue of demonstrable falsehood. At trial, that means the jury will not need to determine if the statements are false because the judge has already ruled as much. The jury need only decide whether Fox News spread the false claims about Dominion while knowing that they were untrue or being reckless as to their falsity, and to determine what, if any, damages Dominion should receive to compensate it for the harm from Fox News’ actions.

Despite the rarity of such a result, extraordinary facts can lead to extraordinary outcomes. Here, the extraordinary background included dozens of lawsuits failing to establish any evidence whatsoever of irregularities in the 2020 presidential election. That track record would have made it difficult for any court to find any question of fact regarding the falsity of statements accusing Dominion of having faked the election’s results.

Nor should anyone have been surprised by some of Dominion’s other victories on lesser issues. As part of the ruling, Dominion won the right to prevent Fox News from raising defenses that it was just voicing opinions for which it couldn’t be held liable, or just fairly reporting the news. Dominion also won its argument that it does not need to prove that what Fox News broadcasted about it was harmful. Given the facts and the applicable law, the court’s decision was entirely reasonable.

Fox News further argued in its court filings that its broadcasts were constitutionally protected under the First Amendment. We strongly disagree, as did the judge in this case. There is little doubt that Dominion’s suit for damages met and indeed exceeded the standard the Supreme Court established in 1964 in New York Times Co. v. Sullivan for deciding when the First Amendment shields whoever disseminates material damaging to the reputation of a public official or public figure from liability. The standard set by that case and respected thousands of times since has been that the publisher of such material can be found liable if it knew the statement was false or acted with reckless disregardfor its truth or falsity. The law is clear that reckless disregard – that is, indifference to truth – is enough to establish liability for resulting reputational harm. In Dominion’s case, there appears to be overwhelming evidence that Fox News, its producers, and its hosts were more than just reckless. Dominion’s pinpointing of actual quotations from those individuals, including Fox News owner Rupert Murdoch, is breathtaking.

Although former Attorney General William Barr has argued that applying this longstanding rule in the Fox News lawsuit would deal a “major blow to media freedoms generally,” nothing could be further from the truth. Applying Sullivan to this case would curtail no freedom – beyond the spurious “freedom” to broadcast knowing falsehoods that damage the reputations of those they defame without having to be held accountable. Far from “paring back” the First Amendment’s protections, Dominion went the extra mile of conceding the applicability of the Sullivan standard even though the Supreme Court has not yet held that corporations like Dominion must show anything beyond negligent falsehood to prevail when suing for defamatory material dealing with matters of public concern.

Nor is Barr correct when he argues that the First Amendment has previously shielded media outlets from liability based on damaging falsehoods that originate from third parties and that defendants then air on their platforms, at least if the platforms do not expressly endorse those falsehoods. On the contrary, if that had been the rule, then the Supreme Court would have had no need to create the high standard it announced over half a century ago in Sullivan. The allegedly defamatory material in that case took the form of false statements about Sherriff Sullivan which appeared in a fundraising ad in the paper placed by civil rights organizations and was not “endorsed” by the publisher. Rather than holding The Times immunized from liability by the fact that the falsehood was attributable to a third party and not endorsed by the paper, the Supreme Court left no doubt that The Times could have been held liable if it ran the ad knowing it contained false statements of fact or with reckless disregard of that falsity.

Indeed, the recent debates over repealing or modifying Section 230 of the Telecom Act of 1996 would be incomprehensible if Barr’s position correctly stated First Amendment law. That statute provides immunity for online media platforms hosting third party content. No lawmakers, lawyers, or academics of whom we are aware have seriously argued that the First Amendment itself provides that immunity, which would of course make Section 230 altogether redundant and the heated debate over that statute pointless.

In any event, even if it were the case that a media outlet cannot be held liable for third-party material that it disseminates unless it endorses that material – which it emphatically is not – the recently unredacted evidenceDominion plans to introduce easily meets that requirement: its expected proof at trial shows a high likelihood that Fox News hosts did much more than neutrally report the “Big Lie” that the 2020 election had been stolen from then-president Trump by a conspiracy of which Dominion was a part; instead, they deliberately created the strong impression that they believed that lie themselves while saying offscreen that they did not. (Consider just one text chain between Tucker Carlson and one of his staffers. The staffer texted him, “Have you seen last night’s numbers?” and, “It’s a stupid story but this is all the viewers are into right now.” Carlson responded, “I noticed.”)

Nor is it the case, as Barr argues, that media outlets would be prevented from ever broadcasting interviews with blatant liars like Rudy Giuliani or Sidney Powell if Dominion were to prevail at trial. Applying Sullivan in this context simply asks whether the media company published the lies those guests spread with knowledge or reckless disregard of their falsity and deliberately refrained from fact-checking and correcting them.

Barr also suggests that many if not all the statements at issue in Dominion’s case are non-actionable statements of opinion. That would perhaps be a fitting consequence of the “post-truth” era ushered in by Trump, but some of the statements Fox News and Barr brush off as mere expressions of opinion are in fact capable of being proven true or false. The relevant statements in this case fall roughly into four silos: that Dominion rigged the election; that its software and algorithms manipulated vote counts; that the company is owned by a Venezuelan enterprise founded to rig elections for Hugo Chavez; and that Dominion paid kickbacks to government officials. Nothing in the case law supports treating those flagrant misstatements as mere matters of opinion: their factual falsity is demonstrable in all but the “alternative facts” universe that Fox News appears to have promoted.

For the press to function – and to serve its absolutely crucial role of reinforcing democracy by nurturing an educated public and helping the nation’s citizens make informed decisions when they vote or make their views known to those serving in government positions – it cannot be hamstrung by the fear of a lawsuit any time good-faith reporting turns out to have been inaccurate. Nor can the relaxed standard of mere negligence suffice to encourage the robust reporting and wide-open public debate democracy demands when the targets of critique are public figures like the sheriff in Sullivan or even public companies like Dominion.

But that does not mean the media must be given free rein to spew whatever falsehoods those who profit from it believe will drive up their numbers. Such falsehoods do as much to discredit the media and undercut its vital democratic function as would too relaxed a standard of liability. Sullivan’s standard – requiring proof of deliberate or reckless factual falsehood – achieves those goals admirably: good-faith reporters are protected, while those who knowingly air baseless and dangerous conspiracy theories are liable when those lies cause real-world harm. And where that harm is substantial, it is only reasonable that monetary damages must be paid to compensate for the resulting injury. In this case, those damages are potentially astronomical, perhaps starting at Dominion’s claimed $1.6 billion in compensatory damages, which can be multiplied several times over in punitive damages.

A jury will now have to decide these issues – whether Fox News acted with the requisite knowledge of falsity or disregard for truth and how much harm it potentially inflicted. A jury finding that Fox News is on the hook for 10-figure sum in this case would be both a fair outcome and a victory for democracy – and for the continued vitality of the appropriately balanced approach to the First Amendment set forth in Sullivan.

IMAGE: A political display is posted on the outside of the Fox News headquarters on 6th Avenue in New York, NY on July 21, 2020. (Photo by Timothy A. Clary / AFP via Getty Images)

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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.

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)

The post Trump’s Hush Money is News Again. Here’s Why We Should Care appeared first on Just Security.

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.

The post Our Prosecution Memo Points the Way for the Special Counsel appeared first on Just Security.

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

The post Mar-a-Lago Model Prosecution Memo appeared first on Just Security.

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)

The post The January 6th Hearings: Criminal Evidence Tracker – Trump Subpoena Edition appeared first on Just Security.

This is an important test case for American democracy in the newfound battles over voter suppression.

These misbegotten prosecutions first made headlines on August 18, when Governor Ron DeSantis announced the arrests of 20 people across the state by his new police force targeting alleged illegal voting. The arrestees were former felons who appear to have believed they could vote under Amendment 4, which restored voting rights to those convicted of a felony whose sentence had expired, with some narrow exceptions. It turns out that many were specifically told by government officials that they could register to vote—and that many if not all had received voter registration cards suggesting they could legally vote.

Legally Flawed Cases

Now it turns out that the office of the statewide prosecutor handling the charges likely does not have legal authority to bring the criminal cases. The statute used by the prosecutor, Fla. Stat. § 16.56, provides jurisdiction to prosecute election crimes that occurred in “two or more judicial circuits.” Where a person registers to vote in one circuit and then votes in that circuit, the terms of the statute are not met.

That was the infirmity that led a trial court in Miami to issue an order on October 21 throwing out the first of the cases. The court ruled in favor of Robert Lee Wood—one of those arrested in August—and dismissed the case. Given the success of that motion, we expect all other attorneys representing clients who registered and voted in a single circuit to file similar motions.

Of course, the judge’s ruling is subject to appeal, which will likely center on an argument that he rejected. Prosecutors claim that any alleged election crime outside of the capital necessarily happens in more than one judicial circuit because voter registration applications are sent there for processing. The Miami judge rebuffed that nonsensical argument in his ruling: “Even assuming that Mr. Wood’s passive role in the transmission of his voter application form and completed ballot to Tallahassee is ‘activity’ that can be ascribed to him, it is not his ‘criminal activity.’” We think the Florida appellate courts will look askance at this argument by the prosecutors for the same reason.

Understandable Voter Confusion

The jurisdictional problems are just the beginning of the flaws in these charges. We expect others to be tossed out because of the lack of criminal intent. Amendment 4 and its aftermath created widespread confusion over which “returning citizens” (former felons) are eligible to vote. In short, they should not be blamed—let alone criminally punished—for erring when Florida told them they could vote.

Some background is helpful here: Amendment 4 reformed Florida’s archaic constitutional provision disenfranchising all citizens “convicted of a felony.” By 2016, the constitutional provision was suppressing the vote of approximately 1.4 million people in Florida, including over 21% of otherwise eligible Black voters.

Amendment 4 restored voting rights to all people convicted of a felony—other than murder or a sex offense—whose sentence (including probation and parole) had expired. Florida voters overwhelmingly voted in favor of the amendment, passing the required 60% supermajority needed for the law to go into effect.

That’s when the confusion began. First, Florida legislators passed S.B. 7066, significantly curtailing the impact of Amendment 4 by requiring payment of all court fines, fees, and restitution in order to have voting rights restored. Because of a lack of any central repository of such information, it is effectively impossible for voters to discern whether necessary financial obligations have all been satisfied. Civil rights groups challenged S.B. 7066, arguing that it amounted to an unconstitutional poll tax. In May 2020, a federal district court agreed, imposing a permanent injunction against the law. Just six months later, the U.S. Court of Appeals for the 11th Circuit reversed that decision, and the law went into effect.

It is no wonder that, in light of the caveats and court battles following the enactment of Amendment 4, some returning citizens mistakenly believed they were entitled to register and vote.

Indeed, it appears state officials and the media were confused as well. Many of these voters were specifically told by government officials that they could register to vote—and many if not all received voter registration cards. Press reports reinforced that idea, indicating that receipt of a voter information card serves “as an acknowledgement that the state has backgrounded the registrant and they are indeed eligible to vote.”

Florida’s voter registration form does not do anything to clear up the confusion. It simply requires any registrant to check a box stating, “I affirm that I am not a convicted felon, or if I am, my right to vote has been restored.” This simple affirmation does nothing to help returning voters address any reasonable misunderstanding.

A Lack of Criminal Intent

Any returning citizen who, as a result of this situation created by the state and others, honestly believed they could register or vote, will have lacked the criminal intent necessary for prosecution. The two statutes prosecutors are charging are “False swearing” (Fla. Stat § 104.011) and “Unqualified electors willfully voting” (Fla. Stat. § 104.15). The former criminalizes “willfully swear[ing] or affirm[ing] falsely to any oath or affirmation … in connection with or arising out of voting or elections [emphasis added].” The latter criminalizes voting when a person “know[s] he or she is not a qualified” voter. Anyone convicted of either offense faces a maximum sentence of 5 years.

But these voters do not appear to have been acting willfully or knowingly. Under Florida law that is generally defined as actual awareness of their ineligibility to register or vote. It is hard to see how prosecutors can prove that beyond a reasonable doubt in many if not all of these cases.

It was for this reason that a Florida prosecutor recently declined to prosecute six people in Lake County, Florida, who had voted in the 2020 general election. According to the State’s Attorney’s Office, each person appeared “to have been encouraged to vote by various mailings and misinformation,” and each had been “given voter registration cards.” Consequently, the prosecutor found that the evidence “fails to show willful actions on a part of these individuals.”

In analogous circumstances, the United States Supreme Court has held that the Due Process Clause of the U.S. Constitution prohibits conviction where a person reasonably relies on the advice of a government official. The Supreme Court noted that to hold otherwise “would be to sanction an indefensible sort of entrapment by the State—convicting a citizen for exercising a privilege which the State had clearly told him was available to him.”

The Final Straw 

In the last week, news organizations have posted body-camera footage of some of the arrests. In each video, the person arrested cannot believe that they had done anything wrong. Romona Oliver told officers as she was arrested, “I voted, but I ain’t commit no fraud.” As he was arrested, Tony Patterson similarly said, “Voter fraud? Y’all said anybody with a felony could vote, man.” Nathan Hart’s arrest also suggested he had no idea that he was not authorized to vote. He told the officers that while at the DMV, he was informed that any person who had completed probation was eligible to vote.

These are acts of cruelty by the governor and his election police and his enforcement policies. The good faith of these returning citizens who thought they were doing their civic duty is evident. Indeed, the circumstances are so wrong (and so probative of innocence) that some of the arresting officers are apologetic. As well they should be.

The Charges Must Be Dismissed

Given the serious legal flaws that appear to be present based upon public reporting, one cannot help but wonder why these cases were brought at all, and particularly in proximity to an election. We must ask whether this is a calculated strategy designed to intimidate all returning citizen voters—not just those few who are ineligible.

Fortunately, the dismissal of the first case by the courts sends an important counter message: it is not only voters who must comply with the law, but also the state. Unless prosecutors are in possession of some additional evidence that the people arrested in Florida’s August sweep knew they were not qualified to vote, then the other cases should also be dismissed immediately.

The post Democracy at Risk: Are The Florida Election Police Violating the Law? appeared first on Just Security.

New York Attorney General Letitia James has announced the filing of a monumental civil enforcement action against Trump, Donald Trump Jr., Eric Trump, Ivanka Trump, the Trump Organization and many other Trump affiliates.

The sanctions sought by the New York Office of the Attorney General (the “OAG”) are sweeping and potentially devastating: disgorgement of $250 million in profits; the cancellation of business certificates for Trump’s corporate entities; appointment of an independent monitor at the Trump Organization; a 5-year ban on Trump and the Trump Organization entering into any New York commercial real estate transactions or from applying for any loans from any New York entity; permanently banning Trump and his adult children from serving as an officer or director of a New York corporation. In addition to the potential civil penalties associated with today’s complaint, AG James also announced criminal referrals to the Southern District of New York and to the IRS. Penalties resulting from those referrals could result in substantial fines, and potentially even imprisonment.

With today’s filing of this enforcement action, it is important to consider the factual and legal bases for the claims, and how it could serve as a tipping point in cases against Trump, especially in light of the many other existing federal and state investigations.

The History of the OAG Investigation

According to court filings, the OAG began investigating Trump in March 2019 when Michael Cohen—Trump’s former lawyer and a former executive at the Trump Organization—testified that the Trump Organization inflated the values of Trump’s assets to obtain favorable terms for loans and insurance coverage, while also deflating the value of other assets to reduce real estate taxes.

Ever since, the OAG has aggressively investigated whether Trump and the Trump Organization engaged in illegal activity. The OAG has asserted in court papers that it has unearthed sweeping fraudulent and unlawful conduct. That is despite the years-long fight by Trump, the Trump Organization, and numerous other witnesses to avoid compliance with the OAG’s lawfully issued subpoenas. Trump, and others involved in the investigation, sought to frustrate the OAG’s efforts at the New York trial state level, on appeal in New York, and in federal court. Although Trump continues his quixotic campaign to stymie the work of the OAG, he has been unsuccessful at every turn. Trump was held in contempt of the New York state court in April—ultimately paying a fine of $110,000 for his intransigence and the risk of further costs—and only then agreed to comply.

The OAG reviewed hundreds of thousands of documents and deposed numerous witnesses, including Allen Weisselberg and Eric Trump—both of whom invoked the Fifth (more than 500 times each)—and Donald Trump Jr. and Ivanka Trump—neither of whom did. It is hard to know why the latter two decided to testify rather than invoke the Fifth. Their decision may have been based on a calculation that criminal charges against them were unlikely, due to the civil nature of the OAG inquiry and the new Manhattan District Attorney’s reluctance to pursue further criminal charges. (Weisselberg and Eric Trump testified in late 2020, whereas Donald Jr. and Ivanka testified only recently).

Those who invoked their Fifth Amendment rights may have helped themselves in any criminal investigation, but did themselves no favor in the OAG’s civil enforcement action: in New York, the invocation of the privilege in a civil case allows the trier of fact to draw the “strongest” inference against them. That means the judge or jury can infer from a witness’ invocation that the answer they would have given would have been damaging to their case. In the civil context, those who invoked may therefore have caused themselves, and their company, grave harm. Don Jr. and Ivanka Trump perhaps testified in an attempt to avoid that kind of scenario.

The Factual Allegations

Although we are only beginning to digest the allegations contained in today’s filed complaint, much of the alleged factual basis for the action were articulated by the OAG in court filings in recent months. Ordinarily, the fruits of an investigation would not be made public until after an enforcement action is filed. However, because Trump, the Trump Organization, and other businesses implicated by the investigation fought compliance with lawfully issued subpoenas, some of the OAG’s evidence has come to light. Court documents submitted by the OAG in its efforts to secure enforcement of those subpoenas pointed to widespread malfeasance by Trump and the Trump Organization.

Today’s complaint, taken together with the vast additional information in OAG’s prior court filings, assert that, over a period of more than a decade, Trump and his organization prepared misleading financial statements that seriously misstated Trump’s finances. Although some of the allegedly fraudulent methodologies involved sophisticated accounting tricks, many of the misleading statements seem to involve blatant falsehoods—including apparently about the size of Trump’s penthouse in the Trump Tower. The court filings indicate that these allegedly misleading financial statements were used to achieve a variety of benefits—including those to which Michael Cohen testified before Congress—such as lower taxes and more favorable loans and insurance coverage.

Inflated value in Trump’s financial statements

Since at least 2004, Trump and the Trump Organization prepared an annual “Statement of Financial Condition of Donald J. Trump,” each of which ostensibly contained a report of Trump’s net worth (or of Trump’s revocable trust while he was in office). The complaint centers on those statements for “at least the years 2011 through 2021.” Those statements were based in part on the value of real estate assets from Los Angeles to Aberdeen, Scotland. The OAG’s investigation alleges that staggering misrepresentations were made in the valuation of Trump’s assets.

One notable example is Trump’s midtown Manhattan penthouse apartment. In 2015, Trump’s financial statement reported the value of the apartment at $327 million. That figure was calculated by taking the square footage of the apartment—listed at 30,000 square feet in the statement—and multiplying it by a fixed price per square foot. But there was a problem with that method. According to Trump Organization documents received by the OAG, which were personally signed by Trump, the actual size of the apartment was just over 10,000 square feet. As Allen Weisselberg later testified, that resulted in an overstatement of “give or take” $200 million.

Another example, according to the OAG, concerns Trump’s golf course in Scotland. The Trump Organization purchased the property in 2006 for $12.6 million. Trump’s 2014 financial statement valued the property at more than $435 million—a return of nearly 3500% in eight years. Given that no cache of oil was discovered on the property in the interim, it is unsurprising that the OAG alleges that some underhanded accounting was at work.

According to Trump’s financial statements, the Trump Organization had received planning permission in 2008 for “a residential village consisting of 950 holiday homes and 500 single family residences and 36 golf villas.” Only the 500 single-family residences would be available for individual purchase—the rest were to be short-term rental properties. According to a 2017 appraisal commissioned by the Trump Organization, 557 private homes would result in a net present value profit of £16–19 million ($18–21.5 million). Yet the undeveloped land was valued at more than ten times that amount in Trump’s financial statements.

The OAG’s investigation discovered a number of other instances of alleged improper inflation of Trump’s properties, including a more than $100 million overstatement of Trump’s Seven Springs property in Westchester County, New York; a similar over-valuation of Trump’s Westchester golf course; and a greater than $200 million over-valuation of residential units in Trump’s Park Avenue property.

Of additional note is the OAG’s allegation that the statements improperly reported the extent of Trump’s liquidity. In one year, nearly a third of the amount of assets Trump reported as “cash” were in fact held in partnership entities that he did not control.

The extent of the alleged fraud is on a level that is staggering. According to today’s complaint, the “acts of fraud and misrepresentation grossly inflated Mr. Trump’s personal net worth as reported in the Statements by billions of dollars.”

Misrepresentations to Banks and Insurers

According to the OAG, Trump used these exaggerated financial statements to secure more favorable terms from banks and insurers. When considering whether to offer a loan, and what terms will be included in any loan agreement, banks evaluate the risk of default (and concomitant loss) against the potential for profit should the debtor repay the loan with interest. The better the financial position of the applicant, the more likely they will be granted a loan, and the more favorable the terms are likely to be. Based on the allegations made by the OAG, Trump abused this process on multiple occasions with banks, specifically in his dealings with Deutsche Bank.

For example, Deutsche Bank issued a $125 million loan to the Trump Organization in 2012 relating to a property in Miami, Florida. According to the OAG, Deutsche Bank had reviewed the inflated financial statements in advance of issuing the loan, and ultimately decided to extend the loan in part based on its understanding of the “Financial Strength of the Guarantor” (referring to Trump) as well as Trump’s personal guarantee.

Deutsche Bank issued two subsequent loans to the Trump Organization—one for $107 million and another for up to $170 million. In both cases, according to the OAG, Trump’s financial profile—based on the fraudulent information contained in the financial statements—was a substantial factor in Deutsche Bank’s assessment of the loan deals it agreed to. The latter agreement was made with Trump Old Post Office LLC—a Trump organization subsidiary, whose officers and owners were Trump, Eric Trump, and Ivanka Trump.

The OAG also has alleged that the Trump Organization further used its inflated financial statements in its dealings with insurers. One such example concerned a surety bond agreement between the Trump Organization and Zurich North America, in which Zurich ultimately agreed to an aggregate bond limit of $20 million. Surety bonds provide a mechanism for parties involved in a contractual relationship to manage risk: for instance,some provide protection in the event of non-performance, which results in the underwriter paying the aggrieved party. The financial condition of the purchaser of a surety bond agreement therefore is a key factor in determining whether an insurance company will underwrite such bonds, as well as the price the insurer will charge. That is because the risk of non-performance is higher when an individual or business is less financially stable. According to the OAG, on at least two occasions, the Trump Organization intentionally misrepresented the reliability of the financial statements to persuade Zurich to continue the surety bond program.

Misleading Statements to the IRS

In addition to using the financial statements to obtain improper benefits from banks and insurers, the OAG alleges the Trump Organization used similar financial tricks to deceive the IRS. One example concerned the Trump National Golf Course in Los Angeles. The Trump Organization acquired the property in 2002 after the prior owner had declared bankruptcy. While the prior owners were constructing a golf course, a large chunk of the property dropped into the Pacific Ocean during a landslide, rendering the property unstable. Likely due to the engineering difficulties associated with building on the property, the Trump Organization decided to donate a conservation easement for tax benefits. An appraisement in 2012 determined the net value of the potential development of the property to be roughly $18 million. As set forth by the OAG in its papers, a series of subsequent appraisals calculated higher and higher values by failing to account for the most accurate engineering appraisals, and failing to discount future profits associated with lengthy development timelines. According to the OAG, Trump reported an inflated value of $25 million associated with his donation of a conservation easement on the property.

The OAG also alleges another scheme undertaken by the Trump Organization to receive an improper tax benefit associated with Trump’s Seven Springs property in Westchester County, New York. That scheme places Eric Trump as a central figure in providing inaccurate or incomplete information to project engineers and appraisers in order to inflate the value of a planned conservation easement on the property. According to the OAG, following the easement’s donation, the associated tax deduction resulted in a multi-million-dollar benefit to Trump.

The New York District Attorney Investigation

In order to understand the likely outcome in the OAG enforcement action, it is important to review the current status of the District Attorney of New York (the “DANY”) investigation. Last summer, the DANY indicted the Trump Organization and its longtime CFO Allen Weisselberg on an array of charges related to tax fraud. Although Trump was not named in the indictment, the DANY continued to investigate Trump, convening a grand jury last fall in furtherance of its investigation.

That investigation of Trump hit a roadblock, however, with the swearing in of District Attorney Alvin Bragg at the start of the year. Reports indicate Bragg stalled the DANY investigation of Trump, which led to the abrupt resignation of two prosecutors leading the office’s efforts.

Nevertheless, the office continued its prosecution of Weisselberg and the Trump Organization. On Aug. 18, Weisselberg entered into a plea agreement and admitted his guilt to all 15 felony counts. In addition to agreeing to serve a five-month sentence at Rikers Island and a subsequent five-year probation term, as well as to a payment of nearly $2 million, Weisselberg agreed to provide testimony in the office’s criminal trial against the Trump Organization scheduled for October.

Notably absent from the plea deal is any agreement to cooperate in any investigation against Trump or his family members—something Weisselberg has reportedly refused to do ever since he was indicted. Of course, for a number of reasons, criminal defendants frequently choose not to cooperate with authorities. In our experience, however, it is extremely unusual for a prosecutor to allow only partial cooperation. That is especially so when the possible severity of sentence facing the defendant is high—more than a decade, in this case—and the probability of conviction appears near certain.

This set of circumstances suggests that Weisselberg is a critical witness for the prosecution in the impending criminal trial against the Trump Organization, and that his testimony is likely to be particularly damning. Under New York law, with limited exceptions not applicable here, the actions of a corporate officer are imputed to the corporation for which they work. Even if Weisselberg ends up testifying only to his own illegal conduct on behalf of the Trump Organization—which is unlikely, given that he pleaded guilty to conspiracy—that evidence could be what is needed to convict the Trump Organization.

One open question from this investigation is what use, if any, the OAG can make of the testimony and material received by the grand juries convened by DANY. The answer is probably that OAG can use what will otherwise be made public in the DANY matter. That is despite the fact that OAG assigned two of its lawyers to assist with the DANY investigations. New York law provides for the secrecy of all “grand jury testimony, evidence, or any decision, result, or other matter attending a grand jury proceeding.” To avoid even an appearance of impropriety, the OAG will likely need to wall off its lawyers who were cross-designated to assist with the DANY investigation. Nevertheless, all materials that become public from these proceedings will be fair game—including all testimony and evidence that is introduced in the criminal trial against the Trump Organization this October. As the civil enforcement action proceeds, the material can be utilized in discovery and in any civil trial.

Finally, there is a possibility of further criminal prosecutions related to the DANY prosecution of Weisselberg and the Trump Organization. Paragraph 5 of the complaint very bluntly alleges violations of a long list of criminal statutes that some of the authors of this essay have also analyzed in a lengthy report. The DANY may alter course and decide to bring these related charges—potentially against Trump and others in his orbit, including Weisselberg himself. Regardless of what the DANY does, the criminal prosecutions may not yet be over for Weisselberg, the Trump Organization, and others. Under the “dual-sovereignty doctrine,” a defendant can be prosecuted in state and federal court for the same conduct. Indeed, it is curious, to say the least, that there has been no sign of a federal criminal investigation given the wealth of evidence, particularly Weisselberg’s plea to evading both federal and state tax laws.

The OAG Enforcement Action

In the complaint filed today, the OAG alleges seven causes of action against Trump and his co-defendants, all under New York Executive Law § 63(12).

This is the statute that the OAG has used to perform its investigation thus far, as it provides for the issuance of subpoenas to compel witness testimony even before filing a complaint. A violation of this statute requires proof of a pattern of fraudulent or illegal business actions, which can be shown through repeated tax fraud. Penalties include damages (covering any demonstrated losses of parties injured by the fraud) disgorgement (covering any net profits attributable to the fraudulent conduct), canceling of corporate certificates, and other equitable relief (including the various sanctions today’s action seeks, including prohibitions on certain business activities in New York State).

The OAG elected not to seek damages in this case, which is unsurprising given that proving damages would have been a difficult challenge to overcome. Courts generally do not award damages they deem to be speculative. It may be true that Deutsche Bank would have charged higher interest on its loans to the Trump Organization, and that Zurich North America would have demanded higher prices on its surety bonds—but the OAG likely decided that proof of exactly how much would have been too speculative for a court to award.

In contrast, seeking disgorgement of profits was a wise course of action for the OAG to take. New York courts have held in enforcement actions under § 63(12) that the remedy of disgorgement does not require a showing of a direct loss to any particular party. Moreover, the OAG has successfully secured disgorgement of profits under § 63(12) in a number of cases, including against Ernst & Young LLP for its actions assisting Lehman Brothers in the lead-up to the 2008 financial crisis, against J. Ezra Merkin in connection with the Madoff Ponzi scheme, and against Vyera Pharmaceuticals (the renamed firm of former CEO “pharma bro” Martin Shkreli). These actions alone resulted in disgorgement penalties of tens of millions of dollars.

Perhaps even more devastating, § 63(12) allows for a host of additional remedies that are tantamount to a “corporate death penalty” for the Trump enterprises named in the complaint and for the role of Trump and the other defendants in doing business at all. That includes canceling corporate certificates without which the businesses cannot operate, appointing an independent monitor, barring Trump and the Trump Organization from doing loan, real estate and other transactions relating to New York for five years, permanently barring Trump, his adult children and other defendants from serving as officers or directors of New York businesses, and much more. This potentially yields many of the same effects as judicial dissolution that we discuss below and may have led the OAG to determine that pursuing judicial dissolution simply was not worth the risk.

One potential caveat, however, is how far back any such case may go. Generally, these actions are subject to a six-year statute of limitations. Here relief is sought for conduct spanning 2011 through 2021. A statute of limitations may however be tolled due to fraudulent concealment—meaning when an alleged wrongdoer takes steps to hide their fraudulent activity, the statute of limitations does not begin to run until the misdeed is discovered. The United States District Court for the Southern District of New York has previously tolled an action under § 63(12) for just such a reason. It is possible the court could find fraudulent concealment here, allowing more years of activity to be covered by the suit and for greater penalties to be imposed.

Given the foregoing allegations, the OAG could also have brought claims under New York’s False Claims Act. It had also long been speculated that the OAG may file for the so called “corporate death penalty”—an option that the OAG appears to have decided against. We address these options below, and explain the likely reasons why the OAG elected to file only under § 63(12).

New York False Claims Act

The individual defendants named in today’s enforcement action, including Trump and his children, may have dodged a bullet by avoiding a potential action under the New York False Claims Act (the FCA). The FCA prohibits avoidance of payment owed to a state or local government. Those found liable for violating the FCA are subject to potentially devastating penalties—both for the entity that made a fraudulent filing, and for any individuals who conspired to make the filing. Penalties include three times the amount of all damages proven, as well as payment of the costs of litigation, including attorneys’ fees. Additionally, the statute of limitations is ten years, potentially allowing for enforcement related to a long period of fraudulent activity.

Although the FCA was only passed in 2007—and only amended to apply to tax fraud in 2010—the OAG has already won some sizable awards under the statute. In 2018, following years of litigation, the OAG settled a case of tax fraud under the FCA with wireless carrier Sprint for $330 million. Another application of the statute in 2013 resulted in a $138 million award in connection with illegal marketing of drugs in New York by Johnson & Johnson and Janssen Pharmaceuticals.

The FCA in New York is young, but it has teeth. As with so many other aspects of the case, it is difficult to project the size of a likely penalty under the statute. Weisselberg’s recent plea agreement admitted to evading payment of taxes due on $1.76 million. Should such tax evasion prove to be widespread throughout the Trump Organization—and with treble damages in the mix—a likely award could have been very substantial indeed.

It is possible the OAG elected not to pursue causes of action under this statute to narrow the focus of any potential trial to issues related to fraudulent business activity. And with the New York AG’s criminal referral to the IRS, it is possible that substantially more than mere financial penalties are on the horizon for Trump, his adult children, and other named individual defendants.

Judicial Dissolution

Often called the “corporate death penalty,” the OAG could in theory file have filed for judicial dissolution of the Trump Organization by alleging it has “transacted its business in a persistently fraudulent or illegal manner.” The more than decade-long pattern of misconduct uncovered by the OAG’s investigation might provide legal justification for dissolution. Such action, if successful, would have required the winding down of the Trump Organization and the sale of its assets. In this case, Trump would have stood to lose control not only of his businesses, but of many of his properties—including his most prized skyscrapers, hotels, and golf courses. However, Trump may have been able to retain those assets by purchasing the associated rights to the properties with corporate entities chartered outside New York.

Recent case law, however, may have dissuaded the OAG from filing for judicial dissolution, as it is far from clear whether such an effort would have been successful. The OAG’s action against the National Rifle Association provides a cautionary tale. As the New York trial court described earlier this year, the OAG had alleged:

a pattern of exorbitant spending and expense reimbursement for the personal benefit of senior management, along with conflicts of interest, related party transactions, cover-ups, negligence, and retaliation against dissidents and whistleblowers who dared to investigate or complain, which siphoned millions of dollars away from the NRA’s legitimate operations.

Nonetheless, the court dismissed the OAG’s request for judicial dissolution. Relying on a case written in 1890 from New York’s highest court, the trial judge found that in addition to persistent fraudulent activity, there must be serious injury to the public. Quoting a more recent case, the judge noted that “before the Attorney-General can obtain judicial dissolution of a corporation, there must be a grave, substantial and continuing abuse, involving a public rather than a private right, by the corporation.” Because the abuse alleged by the OAG involving the NRA primarily damaged the organization and its members—rather than the public at large—the trial judge found dissolution was not merited.

The types of cases where judicial dissolution in New York has been approved involved persistent harm to individuals or small businesses. Given this background, it is unclear that judicial dissolution would have been granted if the OAG were able to prove only that the Trump Organization defrauded a small handful of other large corporations and occasionally cheated on its taxes. On the other hand, given Allen Weisselberg’s plea and the substantial evidence that is likely to come out during the October DANY trial of the Trump Organization—in addition to whatever other evidence the OAG has yet to make public—it remains possible that sufficient evidence of widespread public harm could have been presented for judicial dissolution to be granted.

Even if the OAG has sufficient evidence such that a case for judicial dissolution might be winnable, it makes sense they chose not to pursue it. That is understandable in light of the OAG’s outcome this year in the case against the NRA. Nevertheless, the arguments in favor of actual public harm caused by the alleged fraudulent and illegal actions of the Trump Organization seem much stronger than the strictly internal harms described in the case against the NRA.

At any rate, as we note above, the remedies that were sought such as canceling corporate certificates to do business, appointing a monitor, and barring business activity potentially yields many of the same effects as judicial dissolution. That may have led the OAG to determine that pursuing judicial dissolution simply was not worth the risk.

Conclusion: The Tipping Point

Although Trump, his company, and most of those in his orbit have so far avoided the full force of the law, that run of good fortune may soon be over. The Trump Organization faces financial penalties in the DANY criminal trial scheduled for October. The Department of Justice investigation of Trump concerning his improper storage of sensitive government materials continues, with the appointed special master seeming ready to hurry the case along (and dubious about Trump’s arguments). Separate federal grand juries reportedly are investigating Trump’s alleged obstruction of Congress in and around January 6, his involvement in an alleged scheme to obtain fraudulent electoral slates, and looking at Super PAC, Save America, for fraud. Some 40 subpoenas recently were issued in the investigation reportedly focused on false slates. The House January 6 Committee is continuing its work, with hearings set to resume shortly. And a local grand jury in Fulton County, Georgia is accelerating its investigation into Trump’s efforts to overturn Georgia’s 2020 election results, with charges potentially coming as soon as the end of the year.

Nor does it stop there. Along with today’s announcement of the filing of the civil action, the New York Attorney General also stated that she had referred her office’s findings for criminal prosecution by federal authorities: to the Southern District of New York for possible charges of bank fraud and insurance fraud, and to the IRS for possible charges of tax fraud. Based on the allegations contained in today’s complaint, Trump and his children face a very real risk of indictment, criminal conviction, and imprisonment.

With sustained prosecutorial focus on a single individual from so many fronts, any additional straw may break the camel’s back. Because of the significant pressures on Trump already, we think this OAG civil case against his business and him could be that straw. He requires a substantial financial foundation to help sustain his many legal battles. Moreover, any sanctions in the civil case that result in the loss of prominent properties, where so much of Trump’s identity is tied up, would be a significant blow. The appointment of a monitor to replace him would be a devastating blow to his ego. Additionally, it has been our experience that, when family members are included in proceedings, it can take a devastating emotional toll. Here, as we have noted, the OAG has sued three of Donald Trump’s children who were involved in alleged wrongdoing at the Trump Organization.

At some point, the aggregate effect of all these investigations will reach a tipping point. We’ve often seen this in our collective over half-century of experience in white-collar criminal cases. The cumulative weight bearing down upon a possible defendant—whether corporate, individual, or both—at some point becomes unsustainable. To take another example of why that is the case, civil and criminal events can sometimes trigger default provisions in loan documents or other commercial contracts. While we’re not privy to all of the documentation here, that is a risk that we will look for (and, indeed, avoiding that outcome may be one of the reasons that the New York AG has expressed reservations about seeking the corporate death penalty). A criminal conviction in the October trial could also impact whether lenders or others choose to act based on any such provisions. Indeed, it has been reported that previous lenders have already cut ties with Trump, and that few firms remain are willing to do business with him. Trump faces a risk that the number of such willing business partners may dry up entirely.

Of course, this all is an assessment of future events based solely on currently available data. So far, Donald Trump has withstood years of legal pressures that would have felled a less shameless person. He has a genius for impunity the likes of which we have never seen. Still, we have never seen him, or any individual, come under this many fronts of sustained legal pressure. Today’s announcement may well serve as a tipping point signaling the beginning of the end.

Disclosure: Danya Perry is a co-founder and attorney at Perry Guha LLP in New York, as well as a former federal prosecutor in the Southern District of New York and New York State Deputy Attorney General. Danya represented Mr. Cohen in his successful habeas corpus complaint against William Barr and others after Mr. Cohen was unlawfully remanded to federal custody in violation of his First Amendment rights.

IMAGE: New York Attorney General Letitia James  (Photo by Michael M. Santiago/Getty Images).

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