Ask a Lawyer: Could Trump Really Go to Jail?
After an attempted extortion of Ukrainian President Zelensky, criminally obstructing the Russia probe, encouraging a mob to attack the U.S. Capitol to prevent the orderly transfer of power that resulted in several deaths, keeping sensitive national defense information for its trophy value, and assorted lesser grifts and grafts over the past six years, Donald Trump is on the cusp of an indictment in New York County for [drumroll here] falsifying business records in the first degree! “First degree” sounds impressive, but in New York, this crime is designated as a Class-E, nonviolent felony: the lowest felony level in New York’s grading system (A-1 is the highest for those who still obsess about their GPA).
I’ll jump ahead here to what you really want to know: Yes, he could go to prison. The maximum penalty for this offense is 1 1/3 to four years. If such a penalty were imposed, he would have to serve 1 1/3 years before he became eligible for parole, and he would be out, with good behavior, in two and 2/3 years. But there is no mandatory minimum sentence: If convicted, he could be sentenced a few anger-management programs. And trial is at least a year or more away. Even upon conviction, there would be years more of appeals. How long can this drag out? Long enough for at least half of MSNBC’s audience to shuffle off this mortal coil and Gen Alpha will be voting.
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So what is this crime and what do the prosecutors hope to prove in this case? A person is guilty of this crime when they, with intent to defraud (cheat or deceive), cause a false entry to be made in a business record intending to conceal, aid, or commit another crime. In this case, the prosecution is expected to argue that Trump directed or was aware that his thug-with-a-law-degree Michael Cohen paid $130,000 to porn star Stormy Daniels to keep her mouth shut about her fling with Trump, and to make a business record logging this payment as “legal expenses,” and that this was done to circumvent federal campaign finance law governing contributions and expenditures to aid Trump’s presidential campaign. In other words, the payment to Daniels was a campaign contribution/expenditure and the Trump organization’s reimbursement of the payment was illegally called a legal expense and all of it was done at the direction of Trump, or with his knowledge.
Admittedly, this all sounds wonkier and duller than “insurrection,” “riot,” or “treason.” But, to paraphrase the late and unlamented architect of the Iraq War, Donald Rumsfeld, you don’t prosecute the crimes you want to see, you prosecute the crimes you have. Manhattan District Attorney Alvin Bragg has authority only to prosecute crimes in the New York Penal Code that were committed, in whole or in part, in Manhattan. He does not have a roving commission to seek out and destroy evil wherever it rears its head. Plus, prosecuting this case is relatively simple: It involves a few narrow transactions that can be proven with a limited number of witnesses and documents. And Cohen’s hush-money payoff came only weeks before the 2016 election and shortly after the Access Hollywood “grab them by the pussy” tape emerged. Daniels had been shopping this story around for a while without success; the prosecution will argue that the payoff was made to aid Trump’s campaign at a crucial time. Get it? It’s like a criminal Matryoshka doll, with the intent to commit an underlying crime resting within the crime of falsifying business records.
Critics of Bragg’s approach, across the political spectrum, have variously called this use of that law as prosecutorial overreach, unprecedented, challenging, and complex. Like most things in the law though, it’s kind of yes and no. The most common objection is that the “underlying crime” sought to be concealed by the false business record is the federal crime of election-law violation. So, the critics charge, a local DA may only allege New York crimes as underlying crimes. But the New York law simply refers to committing, aiding, or concealing an underlying “crime,” any crime, whether federal or State. Prosecutions have been previously sustained for falsifying business records with the intent to mislead an investigation by the SEC — a federal offense. It is true that this statute apparently has not been hitherto used to criminalize federal election-law violations, but there is nothing besides Fox News “experts” to say it cannot be.
Nor does Bragg have to prove that Trump violated federal election law. It is enough to prove that he intended to violate it. Here, it is indeed the thought that counts.
What will the trial, in the far-flung future, look like? Daniels will almost certainly make an appearance, and her bold sex-positivity along with the legitimately sad story of the many times she’s been fucked over by powerful men will be jury pleasers. Less attractive but probably more important will be Cohen, whose current loathing of Trump precisely mirrors the intensity of his former fealty. The rest will likely be an assortment of bit players, lots of documents and document custodians, emails and texts; the generally dry and dull stuff of which most white-collar-crime cases are made.
And Trump’s defense? No one knows, and it is way, way too early to guess. Neither Trump nor his current legal team are actually previewing any legal defenses in any meaningful way. Bloviating in the court of public opinion is far easier and less consequential than an actual defense in a real court. The latter will not be decided until Trump’s team reviews the voluminous documents obtained by the DA — a long and fraught process. But we are likely to see Trump in court this week pleading not guilty to his very first felony charge. And that is something.
Ron Kuby is a New York-based criminal defense and civil rights lawyer with almost 40 years of experience AND a shout-out in the Big Lebowski (1 hour, 41 minutes — Malibu Police Station).
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