Former US president Donald Trump appears in a Manhattan court during his arraignment on April 4, 2023, in New York City. (Seth Wenig / Pool / Getty Images)
It finally happened: Former president Donald Trump was charged this afternoon with 34 counts of falsifying business records by Manhattan District Attorney Alvin Bragg. In a spectacle that played out almost entirely behind closed doors, but was still carried on television news like Trump was flying to the moon to be arraigned by Xenomorphs, Trump surrendered voluntarily at a downtown Manhattan courthouse, was arrested and booked, pleaded not guilty, and then went back to Mar-a-Lago on his own recognizance.
The counts cover 34 separate instances of a false business entry or record. Some refer to false entries into business ledgers. Others refer to false invoices or checks. All 34 counts against Trump are felony charges (class E) instead of misdemeanors. To make that case, Bragg must convince a jury that all of the criminal record-keeping was done in order to cover up some larger crime.
The law does not require Bragg to state why he charged Trump with felonies instead of misdemeanors, so he didn’t. But Bragg appended a “statement of facts” to the indictments that maps out his theory of the larger underlying crimes. Bragg alleges an entire “scheme” that goes far beyond Trump’s well-publicized hush-money payment to actress Stormy Daniels. The statement says that Trump, the National Enquirer (and its former parent company American Media Inc.), and its former publisher, David Pecker, were involved in a long-standing “catch-and-kill” operation to pay people for their disparaging stories about Trump and then not publish them. There are also allegations of payments to a second woman (widely believed to be Playboy model Karen McDougal), and to a former doorman who had a story about Trump fathering a child out of wedlock.
At a press conference after Trump’s arraignment, Bragg explained that this scheme included conspiracy, New York State campaign finance violations, and tax evasion that provided the motive for Trump to falsify his business records.
But Bragg did not charge Trump with any of those underlying crimes. There is no conspiracy charge, no campaign finance charge, and no tax evasion charge. It’s all just “falsifying business records,” 34 times. Bragg said that falsifying business records is the “bread and butter” of the Manhattan DA’s office. He emphasized that having accurate business records is of critical importance to Manhattan prosecutors who have jurisdiction of, as he put it, “the financial capital of the world.”
Bragg is absolutely right about that. But another way of putting it might be: Falsifying business records is what prosecutors get you for when they don’t have anything else. It’s the speeding ticket of financial crimes: The cop pulled you over, so he has to get you for something, but he didn’t find drugs or guns, so you get a moving violation and go on your way (note to Black folks: Do not try this at home).
It’s still a crime. It’s still a crime that regular, non-Trumpian business people are charged with and convicted for. If Trump were anybody else, he’d have been charged with these crimes a long time ago. All of the charges against him are class E felonies, and they all carry with them a maximum sentence of five years in prison.
But, even if convicted, Trump will not get five years in prison. He’s unlikely to get five minutes in prison. New York criminal defense lawyer Scott Greenfield (a longtime friend of the channel) put it this way to me over e-mail: “Given that this is a defendant with no priors and the top count is an E felony, it would be almost certain that an ordinary defendant would get probation and no jail time.”
And that’s before we get into all of Trump’s defenses to these charges. I’ve written previously that I am concerned about the statute of limitations on these crimes. As class E felonies, all the counts in the indictment must be brought within five years of the act. Bragg largely describes criminal bookkeeping that took place in 2017, but the statement of facts details all of the measures Trump took in 2018 to delay and obstruct an investigation into those false records, including ordering his former lawyer Michael Cohen to lie about it. That delay could convince a judge that the statute of limitations was tolled (which means paused) while Trump was obstructing the investigation. Another wrinkle is that Governor Andrew Cuomo paused the statute of limitations in New York for 228 days during the Covid pandemic. It’s possible that under this theory, Bragg has just enough time to bring 2023 charges six years after 2017 crimes. Bragg didn’t address these concerns at his press conference, and I can only assume that he is confident that whatever his argument is, it’ll hold up in court.
But that’s not all Trump can throw against the wall. He will continue his personal campaign to vitiate the rule of law by calling any attempt to hold him accountable “political” and call on his violent supporters to rally to his defense, but his lawyers have more conventional legal arguments available to them. One of them might be that Bragg cannot elevate what are normally misdemeanor charges to felonies because any charge of campaign finance fraud needs to be brought by the federal government, not the state of New York. Trump can also make the most basic argument around: that he had no intent to defraud and is guilty of “sloppy” record-keeping as opposed to criminality.
I don’t think Trump should win on any of these challenges. Bragg’s specific case—that Trump falsified business records—is strong, and, it would appear, is backed up by ample documentary evidence. But, as usual, Trump’s goal is simply to delay the proceedings until well past the point of the 2024 election. As it stands, he’s already close to accomplishing that goal. Judge Juan Merchan, who is presiding over the case, set the next in-person court hearing for Trump on December 4, 2023. Even without any additional delay, that takes us to the precipice of the presidential primary season, and that hearing is just for what will likely be Trump’s motion to dismiss. If he loses that fight, Trump can file appeals all the way up to the Supreme Court. That process alone could take ages, even if Trump loses at every possible turn, and that’s before a jury meets for a single day. (Trump’s lawyers also indicated that they might ask for a change of venue, outside of Manhattan. They won’t get it, but again, the request is a way to cause delay.)
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All of that means we are most likely at the start of a legal saga that will last for years, and end up in probation and a fine for Trump.
Which isn’t to say Bragg shouldn’t do this. Trump sycophants and his various plants in the corporate media will rush to defend Trump not on the law (which he almost certainly violated) but because of the vibes. There are people who don’t want Trump to be charged and live in fear of what his MAGA supporters will do. But fear leads to bad legal outcomes. Trump committed a crime—he very likely committed 34 crimes, and he should be prosecuted for them.
This might all be a slap on the wrist, but maybe if someone had slapped Trump on the wrist when he committed crimes in his 30s or 40s or 50s or 60s, we might not be sitting here with 76-year-old Donald Trump trying to organize a junta to bring down democracy. A slap on the wrist at any earlier point would have given Trump prior convictions, such that he might actually go to jail for the felony counts he now faces.
Accountability has to start somewhere. Bragg is the first person to arrest Donald Trump. He shouldn’t be the last.
Elie MystalTwitterElie Mystal is The Nation’s justice correspondent and the host of its legal podcast, Contempt of Court. He is also an Alfred Knobler Fellow at the Type Media Center. His first book is the New York Times bestseller Allow Me to Retort: A Black Guy’s Guide to the Constitution, published by The New Press. Elie can be followed @ElieNYC.