Our Abigail Anthony has a great post on the criminal prosecution by a New York City district attorney — Eric Gonzalez of Kings County — of one Dominique Morgan, a man who “identifies” as a trans woman and appears to have made a career grifting off activism related to that, er, lifestyle.
It caught my eye because DA Gonzalez has charged Morgan with the same offense a crosstown prosecutor, New York County DA Alvin Bragg, brought against now-President-elect Trump, felony first-degree falsification of business records — 23 counts in Morgan’s case, compared to the 34 Bragg brought against Trump.
But there’s a notable difference.
As we covered many time throughout the proceedings against President Trump, falsifying a business record is a misdemeanor in New York (under Section 175.05 of the state penal law). It becomes a felony (under Section 175.10) only if the fraudulent intent that spurred the falsification included “an intent to commit another crime or to aid or conceal the commission thereof.” The other crime is critical: It makes the potential penalty up to four years’ imprisonment and extends to five years the statute of limitations for prosecuting the offense — compared with the misdemeanor offense, which carries a max penalty of just one year and has a tight two-year statute-of-limitations period beyond which the charge is time-barred.
We also learned during the Trump case that when New York prosecutors charge felony business-records falsification, they invariably also charge the alleged other crime that the defendant is said to have committed or concealed by falsifying his business records.
As Abigail’s report relates, the Brooklyn DA has done exactly that. It is alleged that Morgan converted to his own use $99,000 in funds of the Okra Project (the advocacy group for which he worked); when called on it, he is said to have falsely claimed that he’d made bail payments for 23 people supposedly arrested in Nebraska and Georgia. Consequently, Morgan is charged with grand larceny for the theft of the money as well as the 23 first-degree business-records counts allegedly carried out with the intent to conceal the grand larceny.
When he prepares his defense on the falsification charges, then, Morgan will never have to wonder what the other crime is. As criminal due process requires under the federal and New York constitutions, he has been formally advised of precisely what crimes the state alleges he committed. If he goes to trial, a jury would have to find beyond a reasonable doubt that he committed grand larceny in order to find him guilty of the first-degree business-records falsification counts.
Trump did not get due process. The indictment did not identify what other crime he was supposedly committing or concealing by allegedly falsifying his business records. Bragg was cagey about this because, in essence, he wanted to claim that the other crime was a federal campaign-finance offense — which Bragg had no jurisdiction to charge and which the feds had opted not to charge because the evidence was insufficient.
Judge Juan Merchan allowed Bragg to concoct his own standards for federal campaign law and then declined to instruct the jury on the high mens rea requirement — willfulness — for finding a defendant guilty. More mind-boggling, Merchan allowed Bragg to offer the jury three different theories of the supposed other crime (federal campaign finance, falsification of other records, and a possible tax crime) but told the jurors that they need not be unanimous on which one Trump supposedly committed. (I discussed this violation of rudimentary due process here.)
Of course, if DA Bragg had a solid other crime, he would have charged it in the indictment, just as DA Gonzalez has done in Morgan’s case. That he didn’t is one of the many reasons that Bragg should move to dismiss the case next Tuesday, when Manhattan prosecutors have been ordered to advise Judge Merchan of their views on how, or whether, the case should continue. I’m not holding my breath.