The People vs. Donald John Trump

Get the Point!

Despite all of the background drama in the prelude to arguably the biggest arraignment in American history,  yesterday, former President Donald John Trump became the first ex Commander in Chief to be indicted in criminal courts. 

Donald John Trump, flanked by his lawyers, listening to charges in the Manhattan Criminal Courthouse yesterday…

The Charges

Per an unsealed indicted executed by the Grand Jury of Manhattan, District Attorney Alvin Bragg unveiled a 34 count indictment alleging that Mr. Trump, by and through his former lawyer Michael Cohen, falsified business records during the 2016 presidential campaign.

D.A. Alvin Bragg, a graduate of Harvard and Harvard Law, has been the subject of unrelenting racist attacks from less educated right wingers who question his intellect and, ironically considering their idol Trump, his ethics…

Mr. Bragg alleges that Trump's scheme was an effort to conceal stories about extra-marital affairs that may have further sullied his reputation and hurt his chances to win the presidential nomination in a Republican Party that has long projected itself as the defender of "Christian Family Values." 

As is typical in fraud and other financial related crimes, the 34 counts relate to separate transactions alleging that Mr. Trump falsified business records, mostly in the form of invoices for legal services submitted by Mr. Cohen that were reimbursements to him for funds that he allegedly paid to Stormy Daniels, a former pornographic movie star, Karen McDougal, a former Playboy Playmate, and a yet to be named doorman at Trump Towers who allegedly has information that the former president fathered a child in a separate affair with a yet to be revealed woman.  

Now, if you're wondering "why so many counts," the simple answer is that should the People of New York State vs. Donald John Trump proceed to trial, the prosecution will be tasked with proving beyond and to the exclusion of a reasonable doubt that each individual transaction violated the criminal code of the State of New York. 

Under New York law, District Attorney Bragg and his assistants must prove that the records regarding invoices were falsified to conceal some other crime. Meaning, proof that legal service payments were actually reimbursements for Attorney Cohen's efforts to "catch" and "kill" stories that were being shopped to the National Enquirer during his campaign is not enough; while the indictment does not fully specify what the second crime is, the second paragraph serves as a "coming attractions" so to speak by indicating that the payments "orchestrated a scheme to violate election laws;" meaning, there was a willful failure on the part of then candidate Trump to disclose this information on candidate forms that are open to the public and, perhaps, would have been damaging to his general election race against Democratic nominee Hillary Clinton.

Donald Trump has fathered five children with three wives, but yesterday's indictment alleges that the former president paid tens of thousands of dollars to “catch and kill” rumors of a sixth child born out of wedlock. If true, Trump, seeking to join Grover Cleveland as the only Presidents to serve non-consecutive terms, would also join Cleveland for being dogged by allegations that he fathered an outside child in the early 1890’s. A popular ad against Cleveland during that era featured a ruddy cheeked child asking his mother: “Ma, Ma, where's my Pa,” with the reply “Gone to the White House, ha, ha, ha…”

On that last point, the indictment alleges that several checks that were provided to Attorney Cohen relating to the "catch and kill" scheme were signed by Mr. Trump during the first year of his presidency! 

The Evidence

Indictments, by design, are mere roadmaps for the Court and in time, a jury, to understand the basic alleged facts that the prosecution believes establishes that a crime was committed by the accused. To that end, each count is generally alleged and leaves room for the prosecutor to fully flesh out via physical or testimonial evidence. Thus, at this time, it is impossible to know what all the evidence is and how sufficient it may or may not be once litigation begins in earnest.

What we do know at this time is that Michael Cohen was convicted in Federal court on charges related to the ones that Donald Trump now faces, and that after serving a brief prison sentence, he has testified before Federal and state grand juries that were investigating Trump.

Trump and Cohen during happier days…

Cohen will surely be the star witness for a prosecution team that will rely upon his testimony about the invoices that he forwarded to Trump, and the scheme to conceal the real purposes behind those invoices that allegedly were reimbursements for monies that he extended to shield his former client from the public prurient pillory.

A second key witness will be Mr. David Pecker, a long-time friend of Trump's who was the executive at the National Enquirer who helped to kill many of these negative stories. Pecker testified before the Manhattan Grand Jury and will also be used by the prosecution to detail the scheme to conceal.

Beyond Cohen and Pecker’s testimonial evidence, there very likely will be a huge pretrial battle over whether the tapes that Cohen made of Trump directing him to pay off the “usual amount” to kill these stories are admissible. Nota Bene: New York is a one party consent state, meaning, one party does not have to have the permission of the other party to record them. But if Mr. Trump's lawyers can somehow prove that those recordings were made elsewhere, like Florida, which is a two party consent state, then a jury may or may not hear the former president’s voice instructing his lawyer to catch and kill the stories about his extra-marital activities.

What's Next

As with any case, there will be a period called “Discovery” where both parties will seek to interview witnesses, take depositions, and subpoena records. While Discovery is ongoing, Mr. Trump's defense lawyers may move to suppress evidence that they consider legally tainted (like the Cohen-Trump audiotapes), or move to dismiss counts that they believe do not establish that a crime was committed by Mr. Trump.

Assuming that the majority of those motions will be denied, as is typical in most criminal cases, at some point later this year or early into the next, Donald Trump will stand trial in a Manhattan courtroom.

A question that's often asked is, “will Trump testify?” It is far too early to tell at this point, but I seriously doubt that his lawyers will put him on the witness stand for one critical reason—Trump is a loose cannon who cannot control his emotions—or his mouth.

During the post-arraignment press conference yesterday, the Trump legal team was asked whether their client will abide by Judge Juan Merchant's admonishment that the parties watch what they say in the public while the case is pending, and from the looks on their faces and their stammering words, each clearly knows that their client marches to his own drum and is likely to wake up on any given day and fire away about the case, the parties, the judge, and the justice system on social media.

Last week, Trump unwisely blasted the presiding jurist, Justice Juan Merchan, on Truth Social, saying: “The Judge ‘assigned’ to my Witch Hunt Case, a ‘Case’ that has NEVER BEEN CHARGED BEFORE, HATES ME…”

Predictions

As Ol' Hobbs has said before, it is way too early to tell whether Mr. Trump will be convicted of any of the 34 counts that he faces in Manhattan. To be clear, Trump, like every defendant, is presumed innocent, and I can assure you from past experiences that there rarely is a “slam dunk” for prosecutors in the criminal courts system as juries sometimes defy convention, and logic, in their decisions.

I also believe that since a Federal grand jury never indicted Trump for campaign violations based on these allegations, while it won't be said outright by his defense lawyers, the question will be inferred and inferred often as to why a state prosecutor is trying a case that ostensibly boils down to consensual sex between adults, and consensual hush money agreed to by adults that's not directly tied to campaign funding.

While many may consider Trump's affairs immoral, the “Hester Prynne-Scarlet Letter” 19th Century type of mindset does not always hold sway in modern cases, as we all saw in 2012 when former Democratic presidential candidate John Edwards was acquitted on one count—and the jury was hung as to the remaining counts that alleged that he concealed campaign funds that were funneled to his mistress.

Former Democratic Senator and presidential candidate John Edwards addresses the press after he was acquitted of siphoning campaign funds for his lover in 2012…

Thus, we all must wait and “see what the end's gon' be,” as my favorite childhood Deacon, the late Willie Green, used to sing every Sunday morning at New Salem M.B. Church.

Stay tuned…