By Daryl E Wilcox, Esquire
Throughout the trial, Trump claimed there was “no crime” in falsifying business records, and no one was aware of the crimes with which he was charged.
Former President Donald Trump was convicted by a 12-person jury in New York State Court of 34 counts of falsifying business records in the first degree, in violation of New York Penal Law § 175.10.
Under New York Penal Law §175.10, a person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof. Falsifying business records in the first degree is a class E felony.
In summary fashion, the New York indictment alleged that Trump orchestrated a “catch and kill” scheme to suppress damaging information before the 2016 election. The scheme involved falsifying business records to conceal three payments, including $130,000 that Trump attorney Michael Cohen paid to adult film star Stormy Daniels.
In 2018, Michael Cohen entered a plea to, among other things, causing an unlawful campaign contribution and excessive campaign contribution. The underlying facts are essentially the same as the facts underlying former president Trump’s convictions.
Michael Cohen was prosecuted in federal court in the Southern District of New York.
New York County District Attorney Alvin Bragg Campaigned on Prosecuting Trump
Manhattan District Attorney Alvin Bragg was elected in November 2021, becoming the first African American to be elected New York County District Attorney. His tenure began in January of 2022.
In the lead-up to his 2021 election to become New York County district attorney, Bragg spoke often about his record, which included litigation against former President Donald Trump. He did not make any campaign promises to indict Trump.
While campaigning, Bragg said: “I have investigated Trump and his children and held them accountable for their misconduct with the Trump Foundation. I also sued the Trump administration more than 100 times for the travel ban, and the separation of children from their families at the border. So, I know that work. I know how to follow the facts and hold people in power accountable.”
Bragg’s predecessor, Cyrus Vance Jr., began investigating the Trump Organization’s role in hush money payments in 2019. Bragg said during his campaign that he would continue his predecessor’s investigation and hold Trump “accountable by following the facts where they go.”
The Judge was Conflicted
The presiding Judge in Trump’s case was Judge Juan Merchan, a Colombian immigrant who came to the United States with his family at age 6.
Throughout the trial, Merchan was heavily criticized by Trump and other supporters for his supposed prejudice against the former president, including after a Federal Elections Commission filing found that the judge made three donations totaling $35 to the Democratic fundraising site ActBlue during the 2020 election, $15 earmarked for Biden for President and $10 each to Progressive Turnout Project and Stop Republicans.
Additionally, Judge Merchan’s daughter, Loren Merchan, has served as president of Authentic Campaigns, a firm that does digital campaign work like online fundraising, mobile messaging and web design. They work with Democratic political candidates, including some of Trump’s most outspoken opponents.
Authentic Campaigns’ website features a list of clients, which includes Biden and Harris’ 2020 campaigns. Federal records indicate that Harris’ campaign paid the firm more than $7.5 million in 2019 for digital consulting and acquiring contact lists, and that Biden’s campaign paid the firm more than $2.1 million in 2020 for digital advertising and creative consulting.
The New York State Commission on Judicial Conduct has dismissed an ethics complaint against Judge Merchan, stemming from the $35.00 contribution to Act Blue. Judge Merchan received a letter of caution. However, the opinion stated that a “judge’s impartiality can’t reasonably be questioned based on “de minimis political contributions”
Trump’s lawyers moved to recuse Judge Merchan based upon his daughter’s political consulting firm. Judge Merchan denied the motion to recuse and a New York appellate court upheld Judge Merchan’s ruling. The appellate stated, “Petitioner has failed to establish that the court acted in excess of its jurisdiction by denying his motion,” today’s order said. “Petitioner also has not established that he has a clear right to recusal.”
In May 2023, an Empire State court ethics panel found Merchan’s “impartiality cannot reasonably be questioned” because of his daughter’s “business and/or political activities” and that he was “not ethically required to disclose them.”
A Unanimous Verdict Was Not Required
Trump and many of his supporters, including Florida’s Senior United States Senator, Marco Rubio, complained that the jury was not required to reach a unanimous verdict as to Trump’s guilt. This complaint is misleading.
The jury was instructed that their verdict on each count they considered, whether guilty or not guilty, must be unanimous; that is, each and every juror must agree to it.
However, the jury was also instructed that although they must conclude unanimously that Trump conspired to promote or prevent the election of any person to a public office by unlawful means, you need not be unanimous as to what those unlawful means were.
In determining whether Trump conspired to promote or prevent the election of any person to a public office by unlawful means, the jury could consider the following unlawful means: (1) violations of the Federal Election Campaign Act otherwise known as FECA; (2) the falsification of other business records; or (3) violation of tax laws.
While the mechanics of the unanimity question are complex, they are not novel. Prosecutors have long offered alternative theories of how any given crime can be committed. Juries often convict without necessarily agreeing on, say, what murder weapon was used in a case. Or, in the case of a felony murder conviction, for instance, jurors might not blame the same murderer-in-fact. Or, in the case of a burglary, what crime the defendant intended once unlawfully entering a structure or dwelling.
Trump’s Chances on Appeal
Trump is certain to appeal. He is likely to argue that the (1) the crimes were improperly charged; (2) Judge Merchan should have recused himself; (3) the evidence of his encounter with Stormy Daniels was unfairly prejudicial; and (4) and the jury instructions were confusing. Of those four issues, the first one is the most meritorious.
