Trump Indictment: Half a Ham Sandwich and Missing the Mustard ?

Here is the 16 page Indictment returned against Donald Trump - 34 felony counts of falsifying business records with (1) the intent to defraud and (2) the intent to commit another crime and aid and conceal the commission of this other crime. There is no conspiracy charge. Each count pertains to payments to Michael Cohen to reimburse him for the money Cohen advanced to Stormy Daniels through a shell corporation he set up for that purpose. Each payment is charged three (or four) different ways under the identical statute. For example, Count One alleges: [More...]

...[O]n or about February 14, 2017, with intent to defraud and intent to commit another crime and aid and conceal the commission thereof, [Defendant] made and caused a false entry in the business records of an enterprise, to wit, an invoice from Michael Cohen dated February 14, 2017, marked as a record of the Donald J. Trump Revocable Trust, and kept and maintained by the Trump Organization.

The crime of falsifying business records with "intent to defraud" by itself would be a misdemeanor. It's the alleged "intent to commit" a second crime, and "intent to aid and conceal" the second crime, that elevates the crime of falsifying business records from a misdemeanor to a felony.

But what is the second crime? The Indictment doesn't say. Instead, Manhattan DA Alvin Bragg filed a pleading bearing the same case number as the Indictment called "Statement of Facts". It's signed by Bragg as DA, not the grand jury foreperson. It reads like a list of overt acts supporting a conspiracy charge. But there is no conspiracy charge in the Indictment.

Did the grand jury vote on the Statement of Facts? Did they unanimously agree with it? What legal weight does it hold, if any?

Does this Indictment put Trump on notice as to what he must defend against? If not, does it at least state a crime so that it can be saved by a Bill of Particulars?

Why did they charge a violation of the same criminal statute on the same dates in so many separate counts? It seems multiplicitous, although the prosecution may claim it's not because each count requires proof of a different fact: a fraudulent invoice from Cohen to Trump; the reimbursement check disguised as income to Cohen for recently provided legal services when no such services were provided or contemplated; and a record of the falsely designated payments maintained in the Trump Organization's ledgers.

To me, this Indictment is like half of the proverbial ham sandwich and missing the mustard. I was expecting more. To be sure, this post is not in support of Donald Trump or his legal predicament. In my personal view, neither he nor his children have ever been and will never be competent or worthy of a seat in any elected office, let alone the oval office.

Also of note: Trump added a new lawyer to his team yesterday, Todd Blanche, a former federal prosecutor who resigned from his white collar defense firm in order to take Trump's case, calling it an opportunity he just couldn't pass up. How did Trump find him? He successfully got state mortgage fraud charges against Paul Manafort dismissed on double jeopardy grounds.

Still on board: Joe Tacopina (a personal friend whom I've known since he first became a defense lawyer after leaving the Brooklyn DA's office, and whom I regard as a talented and fearless criminal defense lawyer) and Susan Necheles, also a veteran and highly accomplished defense attorney (whom I do not know personally, only by her highly respected status in the New York criminal defense community).

Joe and Todd Blanche were interviewed leaving the courthouse today. Joe said the defense team is like one happy family and he's honored to be part of the team. Unfortunately, playing nicely with others is not something we criminal defense lawyers excel at. There has to be a captain of the ship and egos often clash or get in the way. So I'll take the first part of that comment as a "What do you expect me to say?" type answer and the second part as true.


Trump's speech tonight was appalling in its utter mendacity. He still claims the election was stolen and he won. He viciously attacked the Bidens over and over. He attacked the Georgia investigation and the the investigation into his possession of classified records, misstating the facts and the law. He drudged up Hillary's emails. He said our country is worse than a third world country, neglecting to say that if we are, he is the one responsible. Most of the audience looked like they were there for the cocktails (which they were probably charged for, along with the water).

And this one he might regret: He called Judge Merchan, presiding over is criminal case in NY a "Trump hating judge with a Trump-hating wife and family. His daughter worked for Kamala Harris. And now receives money from the Biden-Harris campaign and a lot of it".

And then the inevitable call to action: "Incredibly we are now a failing nation. We are a nation in decline. And now these radical-left lunatics want to interfere with our elections by using law enforcement. We can't let that happen."

Contrary to his closing sentence, there is no dark cloud over the United States. It's just over him and rightfully so.

Missing from his speech: any reference to his wife. He said he has a great family, and singled out his two sons who were in the audience, his son Barron and daughters Tiffany and Ivanka. He talked about how much they have suffered. [He did everything but play Linda Ronstadt's "Poor Poor Pitiful Me"). But I didn't hear a word about his wife.

Somewhat ironic were the song choices that played shortly before he came out -- especially David Bowie's "Rebel, Rebel" ("Hot Tramp, I Love You So".) I doubt it was meant to be an ode to Stormy Daniels. Perhaps he was referring to himself. It fits him.

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    One minor correction (5.00 / 1) (#6)
    by Peter G on Wed Apr 05, 2023 at 09:33:02 AM EST
    The indictment is not entirely about the payments to silence "Stormy Daniels." It also addresses indirectly the hush money payments to Karen McDougal, the former Playboy model ("Woman 1"). See Statement of Facts, para. 12-15, 22-23, 43.  On the other hand, it does not appear that any of the specific counts of the indictment relate to those payments, since the payments to McDougal were made by AMI (the National Enquirer/Pecker), not by the Tr*mp Organization and thus did not wind up being falsified on the books of that company. But the payments to McDougal are relevant to prove the intent of the payments to Daniels (and then to Cohen as reimbursement), because they followed the same pattern in the same time frame.

    The statement of facts is not part (none / 0) (#16)
    by Jeralyn on Thu Apr 06, 2023 at 11:26:26 AM EST
    of the Indictment. It doesn't have to be proven. It was filed by the DA, not signed by the grand jury foreperson. The charges themselves refer only to reimbursement by Trump and his company to Cohen for Stormy Daniels.

    The $420k Cohen received (approved by Weisselberg, another comptroller at the Trump Org and Trump) was the $130 to Daniels plus $50k he asked for "tech fees" expended for the campaign. The $180k was then doubled to $360k doubled (called grossing up) because he'd be taking it in as legal fees (income) and have to pay taxes on it, and a $60k bonus.

    McDougal was paid by American Media, the parent company of the National Enquirer, in the spring of 2016. Neither Trump or Cohen paid him back. Cohen was going to and an invoice was sent but Pecker met with lawyers who advised the company not accept the money from Cohen so the invoice was never paid. Cohen kept a copy of the agreement to pay. So it was American Media who had to take a federal non-prosecution agreement and admit it made the payment to McDougal to influence the 2016 election in Trump's favor.

    Pecker got immunity to testify before the state grand jury. He testified similar to what I just wrote.

    If Bragg wanted to charge a conspiracy, he should have put it in the Indictment, not a statement of facts. For all we know, the other crime Trump committed will turn out to be wilful failure to pay state income taxes on the $420k he reimbursed Cohen for (if that's a felony). Allegedly, when Cohen made his first visit to the White House after the election, Trump told him the check was in the mail.(and it was, or at least in transit by fedex.

    11 checks, each one has a charge for the invoice Cohen sent, the check signed by Donald Trump (or in some cases by Weisselberg and Don Jr., and the false ledger entry. One check had two false ledger entries, thus the extra count.  


    I think the Bowie song (none / 0) (#1)
    by Peter G on Tue Apr 04, 2023 at 09:57:41 PM EST
    is actually titled "Rebel, Rebel." Which does have that "hot tramp" line, but even better is that the "rebel" it celebrates is a gender-non-conforming young person ("You've got your mother in a whirl/ She's not sure if you're a boy or a girl"), one of the Republicans' current top bugaboos.

    yes, title is Rebel Rebel (none / 0) (#2)
    by Jeralyn on Wed Apr 05, 2023 at 01:17:06 AM EST
    I'll add that to the line about the song.

    I (none / 0) (#3)
    by FlJoe on Wed Apr 05, 2023 at 07:33:12 AM EST
    always thought his choice of songs was rather bizarre.

    Bowies anthem to gender fluidity.

    Neil Young's scathing rebuke of "American exceptionalism".

    The Stones ode to deception, despair and drug as a substitute for success.

    The Village People's unasbashed celebration of the gay lifestyle.


    Much ado about nothing (none / 0) (#4)
    by coast on Wed Apr 05, 2023 at 07:40:33 AM EST
    That's my reaction to this indictment.

    Bragg missed his opportunity, if there even was one.  Based on the indictment, I don't think there was IMO.

    Trump is a dumpster fire, and Democrates can't help but feed him oxygen.

    I didn't tune in or listen to Trumps comments because its a waste of time.  I'm sure he was very conciliatory.

    I (none / 0) (#5)
    by FlJoe on Wed Apr 05, 2023 at 08:05:03 AM EST
    have mixed feelings, I was hoping for more but my natural pessimism tempered that.

    This was a short term victory for tRump who whipped his followers, his opponents and especially the media into a frenzy.

    IMO it's not exactly a nothingburger but far short of the cheeseburger in paradise everybody  was hoping for.


    It is a strong case, (none / 0) (#7)
    by KeysDan on Wed Apr 05, 2023 at 12:08:10 PM EST
    in my view.  There are, of course, areas that may be nibbled away, such as some of the mustard, but this case is pretty solid and will be a real challenge for a successful defense.

       Not just the testimony of Michae Cohen, but documents and  the collaboration of David Pecker and his resources in the scheme to "cheat to win" and the unlawful cover-up. The "Melanie Defense" is a weak reed  owing to TFG's  cheapness by advising Cohen to go slow on the payments to Stormy and stiff her since the story getting out after the election would no longer matter.

    It is  not a flashy  case, as are many white collar, business/tax/document cases, but Trump is very likely to go down.


    This (none / 0) (#8)
    by Ga6thDem on Wed Apr 05, 2023 at 02:42:03 PM EST
    is what most people who actaully know NY law are saying. People are found guilty of this routinely in NY.

    Trump apologists (none / 0) (#9)
    by KeysDan on Wed Apr 05, 2023 at 04:11:43 PM EST
    and some media (not mutually exclusive) are claiming  some sort of victory. There appears to be some confusion between a boring indictment and a serious one  And, of course, Trump is fund-raising getting some of those social security checks from the rubes.

    However, an indictment never embellishes a resume.  I believe the fanciful  euphoria of Trump deplorables will last about as long as Rupert Murdock's recent engagement to be married. And, true to form, Trump is not helping himself with his childish and intemperate outbursts about the judge and the judge's wife or daughter.

    The date for the next hearing is December 4, 2023.  The investigation may continue obtaining additional information or witnesses along with an amended indictment.  Those who underestimate the seriousness of this indictment seem to be candidates for reality therapy. This may include Trump himself.


    The (5.00 / 1) (#13)
    by FlJoe on Wed Apr 05, 2023 at 06:58:06 PM EST
    media bought the Republican talking points hook line and sinker.

    They are right it is good for tRump in the short run, extremely short run IMO.

    I think this is already poison for Republicans in general. I realize the days of the "moral majority" are over but still, having to defend sketchy hush payments to pronstars on a daily basis is not what most of them signed for. Not to mention the furrowed brow epidemic his daily attacks on the Judge, his family and the prosecutors is causing.


    Case (5.00 / 2) (#14)
    by FlJoe on Thu Apr 06, 2023 at 07:38:08 AM EST
    in point, tRump's indicment is...wait for it...bad news for Biden
    Americans could be forgiven if they momentarily forgot the most powerful person in the country. As helicopters and cameras followed every step of the Donald J. Trump legal drama in New York more than 200 miles to the north with white Ford Bronco-level intensity, President Biden faded into the background, ceding the stage to his defendant-predecessor.
    I want to puke.

    Yes, President Biden (none / 0) (#17)
    by KeysDan on Thu Apr 06, 2023 at 12:00:02 PM EST
    has been eclipsed by The Criminal Defendant Trump.

    Skill involved (5.00 / 1) (#18)
    by CaptHowdy on Thu Apr 06, 2023 at 12:32:59 PM EST
    in taking something demonstrably true and framing it as the antithesis of what it actually means.

    Must take years of practice


    Peter Baker's (none / 0) (#19)
    by KeysDan on Thu Apr 06, 2023 at 01:02:35 PM EST

    My favorite pro-Trump quote: (none / 0) (#23)
    by Donald from Hawaii on Thu Apr 06, 2023 at 08:05:39 PM EST
    "If they charge President Trump for his crimes, they could charge any of us for our crimes. The rule of law means nothing to these people."
    - Rep. Lauren Boebert (R-CO), March 30, 2023

    This is what electing a high school dropout to Congress looks like.


    I wish that some reporter (5.00 / 3) (#27)
    by Zorba on Sat Apr 08, 2023 at 07:55:55 AM EST
    had asked her what crimes she was admitting to.

    I agree. (none / 0) (#22)
    by Donald from Hawaii on Thu Apr 06, 2023 at 07:45:13 PM EST
    It appears to be a much stronger case than many of us had been led to believe by all those pundits who kept claiming that New York's was the weakest of all the cases against Trump.

    Moreover, I suspect that there are contingency plans in place for a superseding indictment to be filed, should Manhattan D.A. Alvin Bragg prevail upon former Trump Org. CFO Allen Weisselberg to flip on his former boss. In that event, Donald Trump's legal situation would become even more grim.

    The only thing I feel cheated on is the perp walk and mug shot. I still think that after nearly seven years of dealing with this guy's bullschitt, we're owed at least that.



    I think this is wrong (none / 0) (#11)
    by CaptHowdy on Wed Apr 05, 2023 at 04:27:57 PM EST

    It was a headline on a site but it's from Mar 20. And I'm right now listening to a legal bobblehead talk on live tv about the Carrol trial which she says is coming real soon.

    This trial is now (5.00 / 1) (#12)
    by KeysDan on Wed Apr 05, 2023 at 04:52:59 PM EST
    set for April 25, 2023.

    thanks cap (none / 0) (#26)
    by Jeralyn on Thu Apr 06, 2023 at 08:20:00 PM EST
    Since you said it was incorrect, I deleted it.

    SITE VIOLATER alert! (none / 0) (#15)
    by CaptHowdy on Thu Apr 06, 2023 at 10:25:08 AM EST
    There is Polish spammer posting ridiculous amounts of stuff in

    this thread

    In Polish

    He's been zapped (none / 0) (#25)
    by Jeralyn on Thu Apr 06, 2023 at 08:18:53 PM EST
    and the phony domain he posted from has been blocked, along with 1,500 other domains (thanks to Colin, our webmaster)

    Ron Brownstein (none / 0) (#20)
    by CaptHowdy on Thu Apr 06, 2023 at 02:23:47 PM EST

    Trump's latest revival has dispirited his Republican critics, who believed that the party's discouraging results in November's election had finally created a pathway to forcing him aside. Now those critics find themselves in the worst of both worlds, facing signs that Trump's legal troubles could simultaneously increase his odds of winning the GOP nomination and reduce his chances of winning the general election.

    "legal troubles" (none / 0) (#21)
    by KeysDan on Thu Apr 06, 2023 at 04:04:00 PM EST
    i.e., criminal defendant.  Coverage will be continuous over the next year and a half, as motions are made, hearings are held, and the criminal justice process otherwise proceeds. None of it will be "beautiful,"  no matter the spinning of just how good all this is for TFG, by Hannity, Tucker, Junior, et.al. Serious business, here-- dearest Republicans.

    Primary: Trump's criminal indictment will be catnip to his deplorables and leave Rhonda Santis to battle Mickey Mouse.  The title," King of the Republicans", will continue to be his.

    General: Trump's criminal indictment will have the inverse effect as that of the Republican primary.

    For President Biden the ageists will be muted and the electorate can focus on the Administration's accomplishments and plans to improve the lives of all Americans.

    For the criminal defendant,the chaotic, corrupt and stale jumble that is Trump will find him a deserving spot in the dustbin of history with the country and world the winners.    


    That's right. (none / 0) (#24)
    by Donald from Hawaii on Thu Apr 06, 2023 at 08:09:06 PM EST
    Because in the funhouse-mirrored world of today's GOP, nothing better ensures electoral success in a party primary than a multi-count felony criminal indictment.

    Quite a drop (none / 0) (#28)
    by CaptHowdy on Wed May 03, 2023 at 04:58:37 PM EST

    The letter notes a significant decline in emails turned over from Ivanka Trump, dropping from an average of 1,200 emails per month in the first nine months of 2014 to just 37 emails a month in 2016.

    Trumps Fail To Turn Over Documents In Fraud Case, New York Attorney General Claims