Lost in the avalanche of commentary about federal election law is the remarkable fact that a Manhattan jury actually may have convicted former President Donald Trump of overpaying taxes.
The prosecution’s theory of the case was that a misdemeanor of falsifying business records could be upgraded to a felony if the purported falsification was in furtherance of another felony. From the initial indictment throughout the trial, the prosecution was cagey on precisely what additional felony was being alleged. References were made to New York election law and to federal election law. But it wasn’t until its closing argument that the prosecution explicitly unveiled its new theory: Tax fraud through overpayment.
In its summation, the prosecution argued, “It’s a crime to prepare false tax documents, regardless, even when doing so does not result in underpayment of taxes.” Essentially the prosecutor was arguing that the jury could determine that it was a felony for Trump to cause a tax return to be filed that overpaid taxes.
Notably, the prosecutor used the convoluted language “not result in the underpayment” because he did not want to verbalize in front of the jury the phrase “overpayment of taxes.” The prosecutor did not cite any specific tax documents and did not allege any particular falsity other than the overpayment of taxes.
Just because a matter is technically a violation of law does not mean it warrants prosecution. One would be hard-pressed to find any person ever charged with filing a false tax document simply because he paid too much. And yet, the prosecutors argued before the jury that the overpayment of taxes mystically transformed a possible misdemeanor into a felony.
We will never know if any members of the jury based their verdict on the overpayment of taxes. Judge Juan Merchan did not require the jury to make any finding on whether they were basing their verdict on election law or tax law violations. Merchan’s instructions to the jury on the law simply mirrored the prosecution’s assertion that any false information in connection with a tax return is “unlawful even if it does not result in the underpayment of taxes.”
The fact that prosecutors waited until their closing statements to reveal their theory about false tax documents is especially insidious because, in New York, the defendant is not afforded the final rebuttal. The prosecutors simply enumerated a smorgasbord of potential felonies and then invited the jury to make a selection, knowing full well the defendant could not respond.
Tellingly, at his post-conviction press conference, District Attorney Alvin Bragg ignored the tax violation argument and immediately pivoted back to his mantra that the trial was about Trump’s efforts to “conceal a scheme to corrupt the 2016 election.”
Of course, prosecutors had to cloak themselves in the sanctimonious mission of protecting elections even while ironically interfering in the forthcoming election. The prosecution peppered its closing statement with such utopian theories as democracy “rests on the fundamental premise that the voters have access to accurate information about the candidates.” At the same time, it never provided the defense with accurate information about the charges and urged conviction based on the dubious and unprecedented theory that Trump caused the overpayment of taxes.
Because of this case, every outgoing president will now fear prosecution for trivial matters. Henceforth, presidents will either pardon themselves of federal crimes or temporarily relinquish authority to their vice presidents, who, as acting presidents, will pardon them. But because federal pardons do not extend to state crimes, all 3,000 local district attorneys will now be emboldened under state laws to indict former presidents.
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The odds are overwhelming that an appeals court will overturn this conviction. But the damage has already been done, and even upon a reversal, critics will then claim that Trump escaped only because of a technicality. Of course, the constitutional protections of due process are not mere technicalities but rather the lynchpin of our judicial system.
Trump has achieved many firsts in his lifetime, and now he may have added to that list by being the first person in American history to be convicted for the grievous offense of facilitating the overpayment of taxes.
George G. Demos is an adjunct professor at the UC Davis School of Law, where he teaches corporate and white-collar crime, and a former Securities and Exchange Commission enforcement attorney.