JUDGMENT WEEK: HOW PROSECUTORS WILL USE THE ‘OTHER CRIME’ AGAINST TRUMP. On Tuesday, a jury in Manhattan will hear closing arguments in the trial of former President Donald Trump. Local prosecutors allege Trump committed bookkeeping offenses as part of a conspiracy to corrupt the 2016 presidential election. The former president’s specific crime, prosecutors say, was labeling a nondisclosure agreement negotiated by his lawyer as a “legal expense” in Trump Organization books.
But bookkeeping offenses, even when done by Trump, are misdemeanors in New York, so prosecutors sought to raise the seriousness of the charge by alleging an additional crime. They haven’t said so precisely, but in court papers, they have offered a “theory” in which Trump, in addition to the bookkeeping, violated a New York state election law barring the “conspiracy to promote or prevent election … by unlawful means.” That is also a misdemeanor, but Manhattan District Attorney Alvin Bragg argues that the two misdemeanors, when taken together, add up to 34 felony charges and a maximum sentence of 136 years in prison for Trump. Such is the state of the justice system in New York.
It doesn’t take a brilliant legal mind to see that it all depends — Trump’s future and the hopes of Democrats who seek to jail him and cripple his presidential candidacy — it all depends on that second misdemeanor, which the attorneys usually refer to as the “object crime.” So it is not surprising that there has been furious debate between the two sides about how Judge Juan Merchan will instruct the jury to consider the object crime when they decide Trump’s fate.
The debate has covered several questions. Among them, in no particular order, are: What is the object crime? Is there only one, or are there more? Does the object crime actually require an object crime of its own? What level of proof on the object crime do prosecutors have to reach before jurors can find Trump guilty? And most basically: Does the object crime even have to be a crime?
The most recent debate over the object crime took place last Tuesday, after testimony ended, when both sets of lawyers met with Merchan. There was much discussion of the prosecution’s most frequently mentioned possible object crime, the New York state election law outlawing promotion of an election by “unlawful means.” That, of course, requires a definition for “unlawful means,” and there has been a lot of discussion to suggest that the “unlawful means” prosecutors cite will be an alleged violation of the Federal Election Campaign Act.
Trump’s lawyers raised a question. Violations of FECA are often dealt with as a civil matter. How could a civil matter be the crime by which Trump is sent to prison? Can’t Trump only be convicted of those 34 felonies if the jurors decide that the object crime was a crime? That led the group to a discussion of the word “willfully.” The Trump defense wanted the judge to tell that jury that to convict they must find that Trump “willfully” violated the law — that is, he specifically knew that what he was doing was a crime and that he did it anyway.
To add some perspective, the former federal prosecutor Andrew McCarthy wrote recently that “whenever a crime is alleged, prosecutors must prove criminal intent. Willfulness is the most burdensome intent standard in the criminal law, calling on prosecutors to prove the defendant was aware of a legal duty and intentionally violated that duty.”
So Trump’s defenders want the prosecutors to have to prove that Trump willfully violated FECA. It seemed like a sensible idea. But prosecutors totally rejected it, saying that the underlying crime, the “unlawful means,” does not have to be a criminal matter. “By its plain meaning, ‘unlawful’ doesn’t mean criminal. It means violation of law,” prosecutor Michael Colangelo argued. (You might have heard of Colangelo — he is the No. 3 official in the Biden Justice Department who left to join Bragg’s local prosecutor’s office for the purpose of prosecuting Trump.) “The plain text of the statute provides that election law conspiracy occurs when its intended results are executed through unlawful means. Because it doesn’t need to be “criminal unlawful means,’ there’s no need to add the word ‘willful’ into [the jury instructions].”
That is the prosecution’s position on the object crime. First, Trump need not have committed the crime. Prosecutors only have to prove that he intended to commit the crime. And second, the unlawful means used to carry out the object crime doesn’t have to be a criminal act. It could be a civil violation of the incredibly complex provisions of the Federal Election Campaign Act — the kind of things campaigns usually have to pay a fine to settle.
Trump’s lawyers fought back. “For this to be a criminal conspiracy, there has to be a criminal object,” Trump lawyer Emil Bove argued. Trump has to willfully intend to commit a crime. Otherwise, Bove continued, “we just have a civil conspiracy, that it can’t be used to elevate this into a felony.”
That seemed reasonable. But the issue was left unsettled; Merchan said he was “reserving decision” on the “willfully” issue.
After that came a long discussion of questions involving the intricacies of FECA. What is a campaign expenditure? What is a contribution? What is the “irrespective” test? The debate was a good illustration of the position of many experts that local prosecutors in New York, or any other state, do not have the authority to enforce federal law. Perhaps that will be decided on appeal, if Trump is convicted, but right now, it appears Merchan is totally fine with county prosecutors enforcing federal law. It seems likely the sprawling, abstruse FECA will be part of the jury’s deliberations.
Then came a debate over whether there has to be one object crime or whether there can be many, with each individual juror choosing which object crime he or she likes best. And what do prosecutors have to prove about the multiple-choice object crime?
“The people weren’t required to identify any object crime,” Colangelo told the judge. He pointed to burglaries in which prosecutors prove that by breaking into a house, the accused burglar intended to steal something. “Where there’s no obligation to identify even the object crime, there is no reason to be held to the proof standard of the object crime. What we have to prove is the defendant’s intent and the intent to aid or conceal,” Colangelo said.
Trump’s lawyers argued that this was not a burglary. In a burglary, courts have said “there can be evidence of criminal intent of the fact of the entry, the manner in which the burglary happened,” Bove said. “This is not that case.” Bove argued that Merchan has the discretion to require proof of the “unlawful means” used in the object crime. “The jury cannot infer that the [unlawful means] is established just by the fact that there was an agreement to promote President Trump’s election in 2016,” Bove said. “Of course there was. He won. They have to establish some kind of unlawful means to make that a crime.”
But which unlawful means? Colangelo wants individual jurors to be able to pick and choose what “unlawful means” they believe occurred. “The jury does not need to conclude unanimously what the specific unlawful means are,” Colangelo told the judge. “I think the key point for this instruction is to advise the jury that, yes, there has to be some unlawful means, and to alert them as to what those unlawful means are, but also advise them that they don’t have to unanimously agree on each of the unlawful means.”
Bove conceded that New York law allows a jury to take its pick of unlawful means, but because this is “an extraordinarily important case” for which “there’s not much, if any, precedent,” Bove asked that “the jury should be required to make very specific findings, as specific as Your Honor’s discretion would permit, so it’s very clear what happened at this trial.” Bove, and Trump, lost the argument; by the end of the discussion, Merchan agreed with the prosecutors. The object crime question for the jurors will be multiple choice.
Finally, just what do prosecutors have to prove? Colangelo noted that the defense argued there was “a requirement that there be proof that the goal of the conspiracy was to promote the election of a person by unlawful means.” But “the actual commission of the predicate crime does not need to be established beyond a reasonable doubt. … Again, the only proof obligation the people have, which is a high one, is to establish that this defendant had made or caused false entries in the business records of his enterprises, with an intent to defraud and the intent to conceal the commission of another crime. But there is no proof requirement as to the object crime.”
Actually, that’s not a very high proof obligation at all. In the Trump trial, for the bookkeeping misdemeanor to be a felony, it has to be committed with intent to commit or cover up another crime. But if the other crime is the misdemeanor of conspiring to promote election by ‘unlawful means,’ and the unlawful means doesn’t have to be a crime, and prosecutors don’t have to prove it — then prosecutors are seeking to convict Trump of 34 felonies, and jail him for a maximum of 136 years, on very little basis.
And isn’t that what many legal observers have said all along? There’s just not much to the Manhattan prosecution. The penalties sought are way out of line with the offenses alleged. It was brought by a prosecutor, Bragg, who campaigned on a platform of pursuing Trump. It’s flimsy, unfair, and politically motivated. Now that the trial is reaching its climax — the verdict — its injustices are becoming more and more obvious.