Trump's Conviction Suggests Jurors Bought the Prosecution's Dubious 'Election Fraud' Narrative
There was a glaring mismatch between the charges against the former president and what prosecutors described as the essence of his crime.
After deliberating for a little more than a day, a Manhattan jury on Thursday found Donald Trump guilty of falsifying 34 business records to aid or conceal "another crime," an intent that turns what would otherwise be misdemeanors into felonies. If you assumed that the jury's conclusions would be driven by political animus, this first-ever criminal conviction of a former president is the result you probably expected in a jurisdiction where Democrats outnumber Republicans by 9 to 1. But in legal terms, the quick verdict is hard to fathom.
That's not because there were so many counts to consider, each related to a specific invoice, check, or ledger entry allegedly aimed at disguising a hush-money reimbursement as payment for legal services. Once jurors accepted the prosecution's theory of the case, it was pretty much inevitable that they would find Trump guilty on all 34 counts. But that theory was complicated, confusing, and in some versions highly implausible, if not nonsensical. Given the puzzles posed by the charges, you would expect conscientious jurors to spend more than an afternoon, a morning, and part of another afternoon teasing them out.
Manhattan District Attorney Alvin Bragg's case against Trump stemmed from the $130,000 that Michael Cohen, then Trump's lawyer and fixer, paid porn star Stormy Daniels shortly before the 2016 presidential election to keep her from talking about her alleged 2006 sexual encounter with Trump. When Trump reimbursed Cohen in 2017, prosecutors said, he tried to cover up the arrangement with Daniels by pretending that he was paying Cohen, whom he had designated as his personal attorney, for legal work.
Cohen testified that Trump instructed him to pay off Daniels and approved the plan to mischaracterize the reimbursement. Cohen was the only witness who directly confirmed those two points, and the defense team argued that jurors should not trust a convicted felon, disbarred lawyer, and admitted liar with a powerful grudge against his former boss. But even without Cohen's testimony, there was strong circumstantial evidence that Trump approved the payoff and went along with the reimbursement scheme.
The real problem for the prosecution was proving that Trump falsified business records with "an intent to commit another crime or to aid or conceal the commission thereof"—the element that was necessary to treat the misleading documents as felonies. Prosecutors said the other crime was a violation of Section 17-152, an obscure, little-used provision of the New York Election Law. Section 17-152 makes it a misdemeanor for "two or more persons" to "conspire to promote or prevent the election of any person to a public office by unlawful means." But prosecutors never settled on any particular explanation of "unlawful means," and Juan Merchan, the judge presiding over the trial, told the jurors they could find Trump guilty even if they could not agree on one.
According to one theory, Cohen made an excessive campaign contribution, thereby violating the Federal Election Campaign Act (FECA), when he fronted the money to pay Daniels. Cohen pleaded guilty to that offense in 2018 as part of an agreement that also resolved several other, unrelated federal charges against him. Cohen therefore had a strong incentive to accept the characterization of the Daniels payment as an illegal campaign contribution. While jurors heard about Cohen's guilty plea during the trial, CNN notes, Merchan instructed them that they should consider it only "to assess Cohen's credibility and give context to the events that followed, but not in determining the defendant's guilt."
It is unclear whether Trump violated FECA by soliciting Cohen's "contribution," a question that hinges on the fuzzy distinction between personal and campaign expenditures. Given the uncertainty on that point, it is plausible that Trump did not think the Daniels payment was illegal, which helps explain why he was never prosecuted under FECA: To obtain a conviction, federal prosecutors would have had to prove that he "knowingly and willfully" violated the statute.
The New York prosecutors said Cohen and Trump conspired to promote his election through "unlawful means." Under New York law, a criminal conspiracy requires "a specific intent to commit a crime." Trump's understanding of FECA was relevant in assessing whether he had such an intent, meaning he recognized the nondisclosure agreement with Daniels as "unlawful means." Trump's understanding of FECA therefore also was relevant in assessing whether he falsified business records with the intent of covering up "another crime."
That theory assumed three things: 1) that Trump recognized the Daniels payment as a FECA violation; 2) that he knew about Section 17-152, a moribund, rarely invoked law; and 3) that he anticipated how New York prosecutors might construe Section 17-152 in light of FECA. The first assumption is questionable, the second is unlikely, and the third is highly implausible. Yet you would have to believe all three things to conclude that Trump approved a plan to misrepresent his reimbursement of Cohen as payment for legal services with the intent of covering up a FECA-dependent violation of Section 17-152.
According to a second theory, Trump facilitated a violation of New York tax law by allowing Cohen to falsely report his reimbursement as income. Although that violation is described as "criminal tax fraud," Merchan said it did not matter that Cohen's alleged misrepresentation resulted in a higher tax bill. The judge noted that it is illegal to submit "materially false or fraudulent information in connection with any return," regardless of whether that information benefits the taxpayer.
Putting aside that counterintuitive definition of tax fraud, this theory required believing that Trump, when he reimbursed Cohen, not only contemplated what would happen when Cohen filed his returns the following year but also thought that "unlawful means" somehow would influence an election that had already happened. The logic here was hard to follow.
Likewise with the third theory of "unlawful means." Prosecutors suggested that Trump's falsification of business records was designed to aid or conceal the falsification of other business records. CNN reported that the latter records could involve, among other things, the corporate bank account that Cohen created to pay Daniels, Cohen's transfer of the money to Daniels' lawyer, or the Trump Organization's 1099-MISC forms for the payments to Cohen.
Since the 1099 forms were issued after the election, it is hard to see how they could have been aimed at ensuring Trump's victory. And although the other records predated the election, this theory involves a weird sort of bootstrapping.
Prosecutors said the records related to Cohen's dummy corporation, for example, were falsified because they misrepresented the nature and purpose of that entity, which by itself is a misdemeanor. That misdemeanor was the "unlawful means" by which Trump allegedly sought to promote his election, another misdemeanor. And because Trump allegedly tried to conceal the latter misdemeanor by falsifying the records related to Cohen's reimbursement, those records are 34 felonies instead of 34 misdemeanors.
The theory that Trump falsified business records to conceal the falsification of business records was "so circular as to produce vertigo in the jury room," George Washington University law professor Jonathan Turley said. If so, the jurors seem to have quickly recovered from their queasiness. They accepted either this dubious theory, one of the others, or possibly some combination of them. Since unanimity was not required, it is possible that some jurors bought the FECA theory, some preferred the double falsification theory, and some concluded that the case was clinched by a tax fraud with no pecuniary benefit.
To disguise the difficulties with its dueling theories, the prosecution averred that Trump committed "election fraud" when he directed Cohen to pay Daniels for her silence, thereby concealing information that voters might have deemed relevant in choosing between him and Hillary Clinton. "This was a planned, coordinated, long-running conspiracy to influence the 2016 election, to help Donald Trump get elected through illegal expenditures, to silence people who had something bad to say about his behavior," lead prosecutor Matthew Colangelo told the jury in his opening statement. "It was election fraud, pure and simple."
During his summation, prosecutor Joshua Steinglass called the nondisclosure agreement with Daniels "a subversion of democracy." He said it was an "effort to hoodwink the American voter." He told "a sweeping story about a fraud on the American people," as The New York Times put it. "He argue[d] that the American people in 2016 had the right to determine whether they cared that Trump had slept with a porn star or not, and that the conspiracy prevented them from doing so."
Did the American people have such a right? If so, Trump would have violated it even he had merely asked Daniels to keep quiet, perhaps by appealing to her sympathy for his wife. If Daniels had agreed, the result would have been the same. As the prosecution told it, that still would amount to "election fraud," even though there is clearly nothing illegal about it.
The jurors evidently bought this cover story. During deliberations, they revisited the testimony of former National Enquirer publisher David Pecker, a Trump buddy whom prosecutors implicated in that "long-running conspiracy to influence the 2016 election." Pecker's arrangement with Trump, which he described as mutually beneficial, was not the basis for any of the charges against Trump. But his testimony reinforced Bragg's legally dubious claim that Trump engaged in "election interference" when he sought to avoid bad press.
Pecker said he agreed to help Trump in several ways. He would run positive stories about Trump and negative stories about his opponents. He also would keep an eye out for potentially damaging stories about Trump and alert Cohen to them. The latter promise resulted in two agreements that the Enquirer negotiated with Dino Sajudin, a former Trump Tower doorman who falsely claimed that Trump had fathered a child with a woman hired to clean the building, and former Playboy Playmate Karen McDougal, who described a year-long affair with Trump. After paying $30,000 to Sajudin and $150,000 to McDougal for exclusive rights to their stories, the Enquirer sat on them.
Again, Trump was not charged in connection with any of this, and much of what Pecker did was constitutionally protected, albeit journalistically unethical. The fact that the jury nevertheless wanted to be read excerpts from Pecker's testimony suggests they accepted the prosecution's commodious understanding of "election fraud," which did not necessarily require any actual lawbreaking, let alone any attempt to interfere with the casting, counting, or reporting of votes.
In short, there was a glaring mismatch between the charges against Trump and what prosecutors described as the essence of his crime, which is not a crime at all. Since they could not charge him with "election fraud" merely because he tried to hide embarrassing information, they instead built a convoluted case that relied on interacting statutes and questionable assumptions about Trump's knowledge and intent.
That approach suggests several possible grounds for appeal. It is not clear, for example, whether a violation of federal campaign finance regulations, even when filtered through Section 17-152, counts as "another crime" under the state law dealing with falsification of business records. Nor is it clear that Section 17-152 applies in the context of a federal election, where federal law generally pre-empts state law. There are also questions about what is required to prove that Trump had "an intent to defraud" when he signed the checks to Cohen.
Bragg's predecessor, Cyrus R. Vance Jr., after lengthy consideration of possible state charges based on the Daniels payment, decided they were too legally iffy to pursue. Mark Pomerantz, a former prosecutor in Vance's office who worked on the Trump investigation, concluded that "such a case was too risky under New York law." In a 2023 book, Pomerantz noted that "no appellate court in New York had ever upheld (or rejected) this interpretation of the law."
Last week, New York Times columnist David French worried about the consequences of a conviction that is overturned on appeal. "Imagine a scenario in which Trump is convicted at the trial, Biden condemns him as a felon and the Biden campaign runs ads mocking him as a convict," he wrote. "If Biden wins a narrow victory but then an appeals court tosses out the conviction, this case could well undermine faith in our democracy and the rule of law." In his desperation to prevent Trump from reoccupying the White House, Bragg has already accomplished that.
