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“#USAxAUS” by White House is in the Public Domain

Trump Indicted (Updated)

And so it begins?

Steven L. Taylor
52

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“#USAxAUS” by White House is in the Public Domain

Via the NYT: Donald Trump Is Indicted in New York

Mr. Trump will be the first former president to face criminal charges. The precise charges are not yet known, but the case is focused on a hush-money payment to a porn star during his 2016 campaign.

[…]

In the coming days, prosecutors working for the district attorney, Alvin L. Bragg, will likely ask Mr. Trump to surrender and to face arraignment. The specific charges will be announced when he is arraigned.

To be honest, based on what I have read, the case here may be weak, so I have my concerns about the likely efficacy of this action. Still, additional details may change my view.

To be clear: I think Trump committed a crime (really, crimes) in this case, but the lack of a federal prosecution may make this state-level attempt problematic.

We shall see.

And now we wait to see if the feds, and especially Georgia, follow suit.

WaPo adds:

How or when Trump would be brought to court in New York to answer the charges was not immediately clear. But security will be a concern, given that he has a significant Secret Service detail as a former president — a novel issue in a historic case.

Arrest warrants are typically issued automatically when an indictment is filed against a defendant who has not been previously charged in a criminal complaint. In this case, the indictment was filed behind closed doors at the lower Manhattan courthouse after the clerk’s office was closed for the day.

Update: for some of the reasons I have qualms see Rich Hasen: Should NYC Prosecutors Go After Trump for Crimes Tangentially Related to Campaign Finance Crimes? Reasons for Caution and Reasons to Save Prosecution for More Serious Crimes.

Update 2: It is more than Stormy. Via CNN: Trump faces more than 30 counts related to business fraud, sources tell CNN.

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52 responses to “Trump Indicted (Updated)”

  1. Kathy Avatar
    Kathy

    Finally 😀

    6
  2. OzarkHillbilly Avatar
    OzarkHillbilly

    ‘Bout damn time.

    Seriously, the first of many.

    5
  3. Michael Reynolds Avatar
    Michael Reynolds

    This is just a baby shoe, but more shoes will drop.

    8
  4. Just nutha ignint cracker Avatar
    Just nutha ignint cracker

    Once again, cracker missed on his prediction. Oh well. Good luck to those who are still in the pool. [thumbs up emoji]

    3
  5. Mister Bluster Avatar
    Mister Bluster

    Lock Him Up!

    8
  6. CSK Avatar
    CSK

    What’s ironic and hilarious is that just yesterday Trump was praising this NYC grand jury to the skies, telling them how much he admired them. It was the most blatant attempt at jury tampering I’ve ever seen.

    Guess he doesn’t think they’re so swell now.

    10
  7. Jon Avatar
    Jon

    but the lack of a federal prosecution may make this state-level attempt problematic.

    The feds sent Michael Cohen to jail over this, though. Trump wasn’t included because he was, at the time, the sitting President, and as such DOJ declined to prosecute in accordance with that (in)famous OLC memo.

    Also, w00t!

    3
  8. Steven L. Taylor Avatar
    Steven L. Taylor

    @Jon:

    The feds sent Michael Cohen to jail over this, though. Trump wasn’t included because he was, at the time, the sitting President, and as such DOJ declined to prosecute in accordance with that (in)famous OLC memo.

    Yes, but we have to recognize that Trump wasn’t convicted of that crime. It weakens the attempt to connect the state-level law to an actual crime.

    We shouldn’t confuse what we think we know (or, indeed, are certain we know) to be true with things being officially found by a court of law.

    Do I think Trump broke federal law here? Absolutely. But he hasn’t actually been convicted, and that matters.

    3
  9. Gustopher Avatar
    Gustopher

    While this is relatively minor, I think that when someone flaunts their lawlessness, every jurisdiction really needs to go after them with whatever they have.

    Nail his flabby orange ass to the wall.

    There’s a serious moral hazard in not doing so.

    (Also, we really ought to make knowingly or recklessly falsifying business records a felony in every case, but that’s not the laws we have)

    7
  10. Michael Cain Avatar
    Michael Cain

    @Just nutha ignint cracker:

    Once again, cracker missed on his prediction.

    That’s two of us. I figured Georgia would indict because they were just pissed at a national figure thinking they could ignore Georgia’s rules. And that the DOJ would eventually indict on classified documents. But that NY would give up as the stakes were too small.

    They’ll still have to address the potential issue of there being hundreds of NY businessmen who could be indicted for misclassification at this scale if the state put the effort into it that they did in Trump’s case. Why Trump but not them if not politics?

    2
  11. Jon Avatar
    Jon

    @Steven L. Taylor: Well I mean of course he wasn’t convicted, since he was never indicted nor tried for that crime. DOJ specifically avoided indicting him because he was the sitting President. That does not mean he was exonerated of the crimes at issue in that case. It only means no charges were brought.

    I’m not convinced that the feds *not* indicting him in the previous instance has any bearing on this current state case.

    1
  12. Kathy Avatar
    Kathy

    As to the inevitable lies from the wingnut wing of the GQP, you know, their new favorite word “weaponization,” IMO the best answer should be: Don’t do the crime if you can’t do the time.

    2
  13. Steven L. Taylor Avatar
    Steven L. Taylor

    @Jon:

    I’m not convinced that the feds *not* indicting him in the previous instance has any bearing on this current state case.

    IANAL, but I think you are incorrect.

    Look, I want Trump to face justice, but that doesn’t mean that every route is equally strong. There are legitimate reasons to think this indictment could be weak. I am just trying to be sober minded about it.

    2
  14. Jon Avatar
    Jon

    @Steven L. Taylor: Oh, I completely agree it could be a weak indictment, we don’t know the specifics yet since it is still under seal. I’m just saying I don’t think the federal case gives us much insight into this current state case. It was unique in that irrespective of the strength of the case against Trump he was not going to be indicted since he was the sitting President. I don’t think there’s much to be read in those tea leaves.

  15. gVOR08 Avatar
    gVOR08

    @Steven L. Taylor:

    Do I think Trump broke federal law here? Absolutely. But he hasn’t actually been convicted, and that matters.

    It does seem that this will turn on fine points of law. The facts don’t really seem to be much in doubt. Only interpretation and the law, which as someone or other said, is a ass.

    (You have no idea how many times I typed that to get the quote right. I won’t be surprised if spellcheck changes it to “an” again before you see it.)

    1
  16. JohnMc Avatar
    JohnMc

    I believe the ultimate source for everything we “know” about the actual charges is the Trump group. Pundits & experts say falsifying records. Famously a misdemeanor unless another crime is charged also. But no one actually knows.

    Very nice to see. Keep your powder dry.

  17. gVOR08 Avatar
    gVOR08

    @Steven L. Taylor: I expect the Manhattan prosecutors people have testimony that Trump wasn’t charged by the Feds on Barr’s orders. And that Barr tried to get Cohen’s conviction reversed so it wouldn’t reflect on Trump. I hope Barr becomes a casualty of this. “Disbar Barr” has a nice bumper sticker ring to it. Cohen’s gotta be a happy guy tonight.

    4
  18. Kathy Avatar
    Kathy

    I’m with Professor Taylor on this one. Count no one happy until the Orange Ass gets his ass thrown in prison.

    An indictment, though, is the necessary first step towards that joyful moment. So I’m really glad, gleeful, and have a little bit more hope for the future.

    4
  19. HarvardLaw92 Avatar
    HarvardLaw92

    @Steven L. Taylor:

    He’s correct. Trump was never subjected to judicial process in that matter. It never began, based solely on the doctrine that DOJ does not pursue criminal process with respect to a siting president. Trump, however, is now a civilian, ergo indicting him at the federal level and bringing him to trial there remains (hypothetically anyway, political realities will control) as an open option.

    He would have been indicted here for violations of NY State law. We will have to wait to see what the specific statutory violations are alleged to be.

    2
  20. charon Avatar
    charon

    We do not know yet what the charges are and just assuming the case is weak does not make it so – we will find out in due time.

    https://progresspond.com/2023/03/26/everyone-is-prejudging-alvin-braggs-case/ (paywalled)

    French assumes that the latter loophole will be used rather than the former. I don’t see why this assumption is justified or necessary. If the clock hasn’t run out, then the felony loophole is not necessary. However, it does seem reasonable to assume that a felony is involved for the simple reason that the whole matter would be a lot of effort for a mere misdemeanor.

    French’s key assumption is that the felony will be a violation of a New York State campaign finance law. He’s not alone in this. It’s the most widespread theory out there. The idea is that Trump’s payment to Stormy Daniels was actually a campaign expense, and it wasn’t handled as a campaign expense. French’s problem with this is that this was a federal election, and it should be covered under federal law.

    The prosecution may claim that state campaign finance laws apply to Trump, and his payments thus violated New York law, but remember we’re talking about a presidential election. A federal statute expressly states that the relevant campaign finance laws “supersede and pre-empt any provision of state law with respect to election to federal office.” This law represents a formidable barrier to prosecuting Trump under state campaign finance laws, and there is no obvious path around it.

    My immediate question is why French assumes Bragg is bringing a case that has such an obvious barrier? Surely the Manhattan Attorney General and his team of lawyers are aware that there’s a federal statute that could spike this theory of the case. If there’s no obvious way to win such a case, isn’t a better assumption that this isn’t how they intend to proceed?

    And, really, French’s argument boils down to concern that Bragg is bending the law in too many places in order to bring a prosecution that just doesn’t add up. He’s contorting himself to keep that statute of limitations from expiring and then he’s making a state case about a federal law.

    If French has all his assumptions correct, then it’s worth considering what he has to say. But precisely because a prosecution doesn’t look likely to succeed under his assumptions, maybe he’s got something badly wrong.

    The grand jury proceedings are secret. We have no idea what kind of information they’ve unearthed. It seems prudent to wait to see what they produce before we write editorials critiquing their work.

    My emphasis

    2
  21. HarvardLaw92 Avatar
    HarvardLaw92

    What I’m finding simultaneously amusing and disturbing is a cadre of supposedly states rights Congressional Republicans currently falling over themselves in an attempt to interfere with a state level judicial process. It reeks of banana republic, but the hypocrisy has become just par for the course.

    24
  22. Steven L. Taylor Avatar
    Steven L. Taylor

    @HarvardLaw92:

    It never began, based solely on the doctrine that DOJ does not pursue criminal process with respect to a siting president.

    Indeed.

    But that wasn’t my claim. And you are an attorney and I am not, but there does appear to be a connection to how the NY law would be applied to the alleged federal crimes. This appears to matter in terms of determining likely success here.

    French describes the basics in the Hasen link. And French is an attorney, as is Hasen.

    As I understand it, for the action to be a felony in NY it requires linkage to another crime, and the other crime would be federal and hence my caution, since there has not been a federal conviction.

    Or am I off base?

    3
  23. charon Avatar
    charon

    @HarvardLaw92:

    From my link above:

    The prosecution may claim that state campaign finance laws apply to Trump, and his payments thus violated New York law, but remember we’re talking about a presidential election. A federal statute expressly states that the relevant campaign finance laws “supersede and pre-empt any provision of state law with respect to election to federal office.” This law represents a formidable barrier to prosecuting Trump under state campaign finance laws, and there is no obvious path around it.

    My immediate question is why French assumes Bragg is bringing a case that has such an obvious barrier? Surely the Manhattan Attorney General and his team of lawyers are aware that there’s a federal statute that could spike this theory of the case. If there’s no obvious way to win such a case, isn’t a better assumption that this isn’t how they intend to proceed?

    2
  24. dazedandconfused Avatar
    dazedandconfused

    DeSantos aggressively concealing his glee.

  25. Kathy Avatar
    Kathy

    @charon:

    It’s like the Superbowl. People want to know who will win, and like predicting who and how they will win, for the whole two weeks after the conference championships. The same happens with trials involving the famous and infamous.

    As I tell people about the Superbowl: that’s why they play the game, to see who wins.

    BTW, I’ve read many times that Benito’s Twit with the most likes was his announcement that he has caught COVID. If he’d gone on Twitter to announce his indictment before ti had hit the papers, he could have broken his own record.

  26. Just nutha ignint cracker Avatar
    Just nutha ignint cracker

    Trump faces more than 30 counts related to business fraud, sources tell CNN.

    IANAL (BIDETB), so can someone who IS a lawyer tell me what criminal penalties actual businessmen face for business fraud charges? I ask because my follow up question to the comentariat at large is: Should Trump face time in a state prison for his crimes if his peers do not usually face such a consequence? (Please feel free to apply whatever moral calculus you prefer in answering the follow up question as it is a critical thinking exercise.)

    1
  27. gVOR08 Avatar
    gVOR08

    @dazedandconfused: That’s perfect DeUseless. Trump and his people seem to have made it known Trump will go to NY and surrender. So Pudd’n Boots is bravely declaring he’ll fight an extradition request he pretty much knows won’t be made. Gutsy little meatball.

    2
  28. HarvardLaw92 Avatar
    HarvardLaw92

    @Steven L. Taylor:

    That’s my point – NY State and the US are separate sovereigns, with separate legal systems. What you’re referring to is the likely condition for the elevation of a misdemeanor under NY law (almost certainly IMO falsifying business records) to a felony requires that the intent to defraud inherent in the falsification is a component of another crime. That could be the federal campaign finance statutes, or it could be any one of a variety of applicable NY statutes, not all of which are arguably preempted (and even there an argument can be made for exceptions – it’s an untested area of the law). Linkage to a federal violation is NOT an exclusive requirement. Link it to an applicable NY statute and the elevation burden is satisfied. Beyond that, if Bragg chooses to get creative (which I doubt), each falsified entry would constitute a separate NY felony charge.

    1
  29. Michael Reynolds Avatar
    Michael Reynolds

    Rachel Maddow came in on a night off and is tamping down expectations, suggesting this may be boring as it plays out. Smart, as usual.

    8
  30. HarvardLaw92 Avatar
    HarvardLaw92

    @Just nutha ignint cracker:

    Under NY State law, falsifying business records, if elevated, constitutes a Class E felony, punishable by between 1 and 5 years in prison for each violation. In practice, the violations are combined for trial and sentencing purposes, but that is a matter of prosecutorial discretion. The fun part is that, we’re he to actually be convicted, then we’re faced with the scenario of a convicted felon running for federal office and finding himself in a situation unresolvable by federal clemency / pardon. The only person who could offer him that relief would be the Governor of NY.

    5
  31. Steven L. Taylor Avatar
    Steven L. Taylor

    @HarvardLaw92:

    Link it to an applicable NY statute and the elevation burden is satisfied.

    Here’s hoping for such a linkage.

    (And what you explained is what I roughly thought was the case–thanks).

    1
  32. Kathy Avatar
    Kathy

    @gVOR08:

    I’m still waiting for Benito to release his tax returns.

    2
  33. dazedandconfused Avatar
    dazedandconfused

    @HarvardLaw92:

    Is this meaningful to you?

    Quote if you don’t want to trust the link, I am careful what I click on these days so no offence:
    “Weisselberg’s new lawyer Seth Rosenberg is a racketeering expert and even ran the Manhattan DA’s rackets bureau”

    Word is Weisselberg has dismissed his Trump paid legal team.

    1
  34. HarvardLaw92 Avatar
    HarvardLaw92

    @Steven L. Taylor:

    Indeed. I don’t like to speculate (since the list of potential predicate offenses could be enormous), but if I had to guess, my money would be on 17-152 and/or 17-168 (both NY Elec. Law). Bragg is a lot of things, but stupid hasn’t (IMO) ever been one of them. I’d expect he considered the potential problems before selecting the specific charges he wanted to bring before the GJ.

    4
  35. HarvardLaw92 Avatar
    HarvardLaw92

    @dazedandconfused:

    It could be a variety of things, but if I had to hazard a guess, it would be indicative that they are potentially leaning towards characterizing the collected activities as racketeering and Weisselberg is seeing the folly of tying his boat to his former employer. A significant portion of Seth’s book is defending parties from civil RICO actions.

    2
  36. HarvardLaw92 Avatar
    HarvardLaw92

    Noted the update, and I agree. This involves far more than a single hush money payment to a single person. Taken in concert with Weisselberg’s severing of his defense and specific choice of counsel, we could be about to witness the unveiling of a coordinated EC prosecution (enterprise corruption, NY’s version of RICO). Potentially a civil action under the same as well.

    5
  37. dazedandconfused Avatar
    dazedandconfused

    @HarvardLaw92:

    Thanks. Just now saw the second update which implies they are going RICO on Trump Inc. so it makes sense whether or not Weiselberg has flipped, I suppose.

  38. Ken_L Avatar
    Ken_L

    I may have missed something obvious, but wouldn’t it have been a crime for the Trump Organization to have claimed reimbursement of Cohen’s hush money was a legitimate business expense for NY tax purposes? And if Trump knew about and ordered the payment, wouldn’t he also be guilty of tax fraud? Plus if the payment wasn’t an election campaign donation, it was presumably a benefit to Trump personally, meaning he should have declared it on his income tax return.

  39. Barry Avatar
    Barry

    James, after guy has clearly committed so many crimes, you still want to get picky?

  40. Thomm Avatar
    Thomm

    @Barry: This was Steven, but yeah…whenever it starts to get real, the pattern comes out.

  41. Tony W Avatar
    Tony W

    Have they yet determined if he will be tried as an adult?

    15
  42. Steven L. Taylor Avatar
    Steven L. Taylor

    @Barry: @Thomm:

    but yeah…whenever it starts to get real, the pattern comes out.

    The pattern in which I am saying that prudence dictates understanding the legal barriers that may be in place rather than just dropping the “We Finally Got Him!” banner?

    The pattern in which some level of concern that maybe hot takes in the absence of full knowledge of the indictment might counsel against assuming that this is all a done deal?

    Look, “knowing” someone is guilty and believing that the evidence is a slam-dunk does not mean a defendant will be convicted.

    I am about as certain as I can be that OJ Simpson committed double homicide, but as far as the legal system is concerned, he’s not guilty.

    I am glad that Trump was indicted. I hope he is convicted. I am hopeful he will soon be indicted in Georgia and hopefully at the federal level as well.

    But I am not, nor have I ever been, a cheerleader for what I want reality to be. That’s not what this site has ever been about.

    7
  43. Steven L. Taylor Avatar
    Steven L. Taylor

    One more thought:

    starts to get real

    I think that the emphasis should be on “starts” rather than “get real” because if the “real” is Trump getting his just deserts I would note that we have never gotten beyond the “starts” phase.

    Hence, you know, my caution.

    4
  44. charon Avatar
    charon

    https://www.politico.com/f/?id=00000187-37d2-dd77-a1cf-7ff7d0920000

    (.PDF file)

    Bragg office response to Jim Jordan.

    5
  45. Mu Yixiao Avatar
    Mu Yixiao

    @charon:

    What a precise and elegant way of saying “No. Now sit down and shut up.” 😀

    4
  46. just nutha Avatar
    just nutha

    @Steven L. Taylor: You mean we haven’t finally got him, he’s not going to Attica to be beaten continually by hardened criminals, and the GQP isn’t healed now? That’s a bummer. 🙁

    2
  47. Jay L Gischer Avatar
    Jay L Gischer

    Once he’s indicted and faces charges, does that mean any sort of public statement he might make to encourage pushback from his followers could get him in more legal trouble? Is that contingent on a judge hitting him with a gag order, or is this kind of thing just boilerplate.

    I’m very curious to see how the threatened protests, etc. play out in reality.

    1
  48. Kazzy Avatar
    Kazzy

    @HarvardLaw92:

    If convicted, would we have a scenario wherein Trump couldn’t vote for himself?

    3
  49. HarvardLaw92 Avatar
    HarvardLaw92

    @charon:

    That was a thing of beauty

    1
  50. HarvardLaw92 Avatar
    HarvardLaw92

    @Kazzy:

    Entirely possible, yes.

  51. mattbernius Avatar
    mattbernius

    I know that a lot of folks wish that this wasn’t the first thing Trump was indicted on. Folks have already pointed out that we still don’t know what is in the indictment. Another important point about that is that if Bragg had chosen to wait for any of the other prosecutions to move forward, that would have represented the type of “coordinated” prosecution that his supporters are accusing the Democrats of doing.

    Also it’s worth noting how the prosecution of John Edwards has seemingly been memory holed in all the discussions about how unprecedented this is. Or all of the other democracies that have prosecuted past Heads of State.

    3
  52. charon Avatar
    charon

    Discussion of possible charges:

    “Washington Monthly“

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