Prosecutors need to prove Trump falsified records to commit a second crime, CNN analyst says

Manhattan District Attorney Alvin Bragg touched on why his office moved forward with the indictment of former President Donald Trump for falsifying business records during a news conference Tuesday.

CNN legal analyst Elie Honig notes that the DA’s office will need to prove that Trump and his team falsified records with the intent of committing another crime in order for the charge to bump up from a misdemeanor to a felony.

“The core conduct that is charged in this indictment is the payment of hush money. Now, payment of hush money is not a crime. It’s not a federal crime. It’s not a state crime,” Honig explained.

The DA’s office is “relying on a state law that makes it, in the first instance, a misdemeanor to falsify business records. These are the repayments to Michael Cohen that were falsely logged within the Trump Organization as legal fees — when they were not legal fees. One of the complicated legal questions here is; in order to bump that up from a misdemeanor to a felony, you have to show that those records were falsified to commit some other crime. Some second crime,” Honig told CNN’s Anderson Cooper.

The DA’s office did mention federal and state campaign laws during his remarks, which Honig said, could be where more legal questions come up.

Honig also highlighted how the DA’s office did not say what that alleged second crime is, an issue the defense lawyers “rightly” complained about because the purpose of an indictment is to serve notice to the defendant on what they’re being charged with.

The indictment does not specify what laws Trump broke because “the law does not so require,” Manhattan District Attorney Alvin Bragg said when asked by reporters why there were no specifics in the indictment. 

Bragg then highlighted one law that Trump allegedly broke in the news conference Tuesday.

These include false statements, including statements that were planned to be made to tax authorities, according to Bragg.

Bragg also mentioned a violation of a federal election law cap on contribution limits.

The statement of facts documents how former President Donald Trump and his former attorney Michael Cohen’s relationship began to fall apart as the federal criminal investigation targeting Cohen spilled into public view.

“On or about April 21, 2018, the Defendant publicly commented on Twitter encouraging Lawyer A not to ‘flip,’” prosecutors wrote in their statement of facts.

According to the charging document, a lawyer emailed Cohen, asking him not to cooperate with law enforcement.

“You are making a very big mistake if you believe the stories these ‘journalists’ are writing about you. They want you to cave. They want you to fail. They do not want you to persevere and succeed,” the lawyer continued, according to the statement of facts. 

The day after Cohen pleaded guilty in his case, Trump tweeted criticisms of him, writing: “‘If anyone is looking for a good lawyer, I would strongly suggest that you don’t retain the services of Michael Cohen!'” the document said. 

Former President Donald Trump spoke at several points during Tuesday’s hearing when asked questions by Judge Juan Merchan, acknowledging he understood his rights and to enter his not guilty plea. 

Trump said “yes” several times to the judge and once said “I do” when asked if he understood the judge’s directions. 

Trump walked into the courtroom slowly, with his hands by his side and scanning the room. 

He sat staring straight ahead much of the time during the hearing, sporadically putting his elbows up on the table. He occasionally looked over at the prosecutors and listened to whispered comments from his attorney, Susan Necheles.  

Trump’s lawyers sought to waive Trump’s need to appear at the next hearing, saying the former president’s appearance came at a high cost to the city. 

Merchan said he was denying the request at this time, saying all defendants were expected to appear, “even high-profile defendants.” But he said he would reconsider the request if it was made again in the future.

When the hearing was over, Trump stood up slowly, and the court reporter sought to shake his hand before he left.

Former President Donald Trump was concerned affair allegations would negatively affect his chances to win the election, according to the statement of facts.

According to prosecutors, the editor-in-chief of the National Enquirer and AMI’s chief content officer learned of allegations five months before the 2016 presidential election that Trump had an extra-marital affair with Playboy Playmate Karen McDougal.

AMI agreed to pay McDougal $150,000 for her silence, according to the statement of facts, and to give McDougal “two magazine cover features” and “series of articles that would be published under her byline.”

The statement of facts also notes that AMI falsely characterized the $150,000 payment on their financial documents and sent Trump’s lawyer Michael Cohen regular updates.

In the statement of facts, Manhattan District Attorney Alvin Bragg alleges that former President Donald Trump orchestrated an “unlawful” scheme with others to “influence the 2016 presidential election” and that other participants in the scheme have admitted to “committing illegal conduct in connection with the scheme.” 

Specifically, the statement of facts references the guilty plea by ex-Trump lawyer Michael Cohen in the federal campaign finance case that was prosecuted in 2018 and to the admissions of AMI – the publisher of National Inquirer – in the non-prosecution agreement it reached in the federal investigation. 

Bragg is not charging Trump with a violation of election law or a conspiracy related to that alleged campaign-related conduct. However, falsifying business records – the charge Trump faces 34 counts of – is only a felony if the records were falsified with the intent to commit or conceal another crime. The indictment says that for all 34 counts, Trump had the “intent to defraud and intent to commit another crime and aid and conceal the commission thereof.”

Bragg alleged in his press conference Tuesday that the business records were falsified in 2017 with the intent of concealing criminal conduct connected to the 2016 campaign. He referenced a New York state law that makes it a crime to conspire to promote candidacy by unlawful means. 

The statement of facts says that the payment that Cohen (referred to as Lawyer A) made to Stormy Daniels (identified as Woman 2) were “illegal,” as Cohen has pleaded guilty to making an “illegal campaign contribution.” 

The statement of facts goes on to lay out how both Cohen and AMI have admitted in the court filings related to the federal case of having the intent of influencing the 2016 election with their participation in the scheme.

The statement of facts cautions in a footnote that it “does not contain all facts relevant to the charged conduct.” 

The statement of facts outlines how AMI, the parent company of the National Enquirer, worked to silence a former Trump World Tower doorman who claimed to have knowledge of an alleged affair between Trump and an ex-housekeeper.

According to court documents, AMI’s CEO David Pecker instructed his organization “to pay the Doorman $30,000 to acquire exclusive rights to the story.” AMI then allegedly “falsely characterized this payment” in their own records, including its general ledger.

AMI did not vet the story before purchasing, the statement of facts reads.

When they concluded the story was not true, AMI wanted to release the doorman from the agreement to keep the story under wraps, the statement of facts reads, but Michael Cohen “instructed the AMI CEO not to release the Doorman until after the presidential election.” 

Pecker allegedly complied with that request, the statement of facts reads.

Manhattan prosecutors have placed Donald Trump at the center of an alleged “catch and kill” scheme to suppress negative stories about himself during his candidacy, according to the statement of facts supporting the former president’s indictment.

In August 2015, shortly after announcing his candidacy for the presidency, Trump met at Trump Tower with his then-lawyer and fixer Michael Cohen and the CEO of the media company that owned the National Enquirer, prosecutors said.  

David Pecker is the former head of that company and testified recently before the Manhattan grand jury that voted to indict Trump. 

Pecker agreed to help Trump’s campaign and promised to act as the campaign’s “eyes and ears” by alerting Cohen to negative stories about the billionaire real-estate developer, prosecutors said.

Pecker, the statement of facts said, also agreed to publish negative stories about Trump’s political rivals. 

Former President Donald Trump hid reimbursement payments to Michael Cohen by marking monthly checks for “legal services,” according to the statement of facts, in a deal the two worked out in the Oval Office. 

“In early February 2017, the Defendant and Lawyer A met in the Oval Office at the White House and confirmed this repayment arrangement,” the statement of facts said referring to Cohen.

Trump personally signed checks reimbursing Cohen, his attorney at the time, for the hush-money payment made to adult film star Stormy Daniels, the statement of facts said.

The payment included $130,000 for Daniels in exchange for her signature on a non-disclosure agreement. 

He also allegedly agreed to pay Cohen $35,000 monthly for one year, prosecutors allege.

The document also detailed how two of the payments were made from a trust set up in Trump’s name, but nine subsequent ones, “corresponding to the months of April through December of 2017, were paid by the Defendant personally.”

The payments stopped after December 2017, according to the document.