A s we’ve discussed time and again, the “hush money” case against Donald Trump was forged by Manhattan DA Alvin Bragg’s inflation into 34 felonies of what, at most, may have been a misdemeanor falsification of business records. Bragg had to do that because if the conduct charged is a misdemeanor, he has no case because of the statute of limitations.
Trump’s best defense, then, is not necessarily to establish that he is not guilty; rather, it is to establish that, if he is guilty of anything, it is merely of the misdemeanor. If the jury so finds, I believe the case would have to be thrown out. The conduct charged in the indictment occurred in 2017. The misdemeanor falsification of business records offense has a two-year statute of limitations — meaning, it lapsed in 2019, or maybe 2020 if prosecutors got creative enough. Bragg did not indict the case until 2023, years after the limitations period on the misdemeanor had been exhausted.
Bragg dubiously revived the case by enhancing the misdemeanor into a felony, which gave him the advantage of a six-year statute of limitations (the standard New York felony limitations period of five years, plus the one year the state tacked on during the Covid pandemic when the courts could not process cases). Trump, however, could nullify this sleight-of-hand with what’s known as the lesser included offense doctrine.
In the criminal law, every offense has essential elements — often between three and five — which are the facts prosecutors must prove beyond a reasonable doubt to establish guilt. Take bank robbery: The state must prove that the defendant (1) used force or intimidation to (2) take money or other property from (3) a financial institution, and (4) did so intentionally. In armed bank robbery, the prosecutor must prove all four of the elements of bank robbery, plus a fifth: that the defendant used or brandished a firearm.
The crime of bank robbery thus contains all of the elements of the greater crime of armed bank robbery. Hence, bank robbery is a lesser included offense — the two crimes are the same, except for the exacerbating element involving a gun. That’s what makes armed robbery the “greater” offense: It’s more serious and has a more severe potential penalty.
The situation with New York’s crimes of falsifying business records is analogous.
Ordinarily, the crime is a misdemeanor (second-degree falsification of business records) under §175.05 of the state’s criminal law. To establish guilt, the prosecutor must prove that a defendant (1) made a false entry in (2) the business records of an enterprise, and did so not only (3) intentionally but also with (4) an intent to defraud.
Nevertheless, under §175.10 (first-degree falsification of business records), the crime becomes a felony if the prosecutor can prove an additional element: that the defendant’s intent to defraud included the intent to commit or conceal another crime.
Other than the utter lack of credibility of Bragg’s star witness, former Trump “fixer” Michael Cohen, the need to prove this “other crime” legal element is the weakest link in Bragg’s very peculiar case. As we’ve repeatedly noted, the other crime he claims Trump intended to commit was a federal campaign-finance violation. As a state prosecutor, Bragg lacks authority to enforce federal law.
Campaign finance is an arcane area in which two federal agencies — the Justice Department and the Federal Election Commission — are specially tasked with enforcement. Both investigated Trump and concluded there was no case. Their rationale was obvious: The hush-money payment to silence a porn star who claims to have had a sexual encounter with Trump in 2006 was not, technically speaking, a campaign expense. (If it were, Trump could have used campaign funds to pay it — imagine the howling if he’d done that!)
The fact that Stormy Daniels used the campaign as leverage to pressure Trump to pay does not render the payment a campaign expenditure. More to the point, it is unlikely Trump was knowingly trying to dodge the campaign laws, even if we assume he understood them; he was trying to conceal an embarrassing episode in his past — and is hardly the first politician ever to do so.
So far, the pliant Judge Juan Merchan has indulged Bragg’s endeavor to enforce federal law. That does not mean a jury will buy it.
Bragg has a couple of mind-bending fallback positions. He claims the other crime Trump intended to commit or conceal may also have been a violation of New York election law or of tax law. But putting aside that the relevant election in 2016 was for federal office, Bragg’s state election-law theory relies on his untenable theory that Trump schemed to violate federal election law. And Bragg’s tax theory crashes into the inconvenient fact that the payments to Cohen were structured to ensure that he could pay any taxes due and owing — which, of course, is why Bragg couldn’t charge Trump with a straight tax or fraud offense.
Under New York law, Trump is entitled to demand that Judge Merchan instruct the jury on any lesser included offense. Ergo, his lawyers should ask Merchan to instruct the jurors that, if they do not believe the state has proved that Trump intended to commit or conceal another crime, they can still convict him of the lesser falsification of business-records offense.
If the jury were to acquit Trump of the greater felony offense but find him guilty of the misdemeanor, I believe any convictions would have to be thrown out because the statute of limitations on the misdemeanor has lapsed.
To be clear, I don’t believe this is Trump’s only defense. As related above, the state must prove that he acted, not just intentionally, but with an intent to defraud. Here, there was no fraud. No one here was duped out of any money — again, including the state.
Bragg will counter that he need only prove an intent to defraud, not an actual fraud in which victims were harmed. Recall that in the recent civil-fraud case, the state’s attorney general, Letitia James, succeeded with that “fraud with no fraud victims” theory. In the criminal case, however, the verdict will be rendered by a jury, not an elected progressive Democratic judge. A jury of ordinary New Yorkers may not be willing to buy a no-victims fraud theory, especially from a district attorney best known for declining to aggressively prosecute serious crimes when there are actual victims.
All that said, though, it would be a tall order for Trump, who is deeply unpopular in Manhattan (at least politically speaking), to get a sweeping acquittal on 34 felony counts.
His best shot at beating the case is to encourage the jurors that, if they feel they must convict him of something, they should convict him of the lesser included offense — misdemeanor business-records falsification. As stated earlier, if Trump is found guilty on one or more such misdemeanors, such convictions would have to be thrown out because they would violate the two-year statute of limitations.