Debunking
12 Myths About Trump’s Conviction
JUNE 4, 2024 3:17
PM EDT
McQuade is a professor at the University of Michigan Law School, and a
former U.S. Attorney. Her new book is Attack from Within: How Disinformation is Sabotaging America
Depending on your perspective, the conviction of Donald Trump on 34 counts in a
Manhattan courtroom was either a refreshing affirmation of the rule of law or a
miscarriage of justice in a politically motivated prosecution. A jury returned
a verdict finding that Trump had caused the falsification of checks, invoices,
and ledgers to conceal the payment of $130,000 to adult film actress Stormy
Daniels shortly before the 2016 presidential election, with intent to conceal
the violation of campaign finance and tax laws.
We are all entitled to our own views of the case, of course, but opinion
should also be based on facts. Certain myths are creeping into the conversation
and distorting the truth about Trump’s conviction. And it’s worth examining
some of these myths in order to dispel them.
Myth: No one knows what Trump was
charged with.
Response: Trump was charged in a
15-page indictment, handed up by a grand jury, with 34
counts of violating New York Penal Law 175-10 in the first degree,
which is a felony. A violation in the first degree occurs when a person
falsifies business records with an intent to defraud that includes an intent to
commit, aid, or conceal another crime. In addition to the indictment, the
Manhattan District Attorney filed a 13-page statement of facts detailing the
allegations.
Myth: Prosecutors stretched the law to
convert a misdemeanor into a felony.
Response: Under New York law, a simple falsification of business
records without any intent to commit or conceal another crime is a violation of
the statute in the second degree, punishable as a misdemeanor.
An intent to conceal another crime is an aggravating factor that brings
enhanced penalties, such as a felony. This law containing degrees of severity
was enacted by the New York legislature, and it is a common way of structuring
laws with escalating penalties for more egregious violations. (For example,
penalties for federal drug offenses range from misdemeanors for simple
possession to lengthy terms of imprisonment for aggravating factors based on
quantity or intent to distribute.) The grand jury found probable cause of 34
violations in the first degree, and the trial jury found proof of these crimes
beyond a reasonable doubt.
Myth: The prosecution didn’t tell
Trump what he was charged with until closing argument, a violation of due
process.
Response: While the indictment specified
each of the checks, invoices, and ledger entries alleged to have been
falsified, it did not specify which crime Trump allegedly concealed. A defendant
is entitled to fair notice of the crime with which he is charged so that he can
effectively defend himself at trial, but New York law does not require this
level of specificity in the charging document. New York case law requires that
the indictment allege only a general intent to conceal a crime, not an intent
to conceal a specific crime.
Nonetheless, prosecutors provided this specificity in a prosecution filing in November 2023, five months
before his trial began. In that filing, prosecutors disclosed that the crimes
they alleged Trump intended to conceal were violating state and federal
campaign finance laws and violating state tax laws. The court rejected an additional basis offered by
the prosecution, falsifying business records outside the Trump organization.
Myth: It was improper for a state
prosecutor to charge a federal offense.
Response: The parties litigated this issue
months before the trial and the court found that statutes outside of the laws of New York were proper bases to
be considered “other crimes.” For example, case law has held that an offense
under the New York statute prohibiting possession of a concealed weapon by a
person who has been “previously convicted of any crime” may be proved by
showing that the person was convicted of a crime in another state.
New York courts have also upheld the use of federal offenses as the
predicate crimes in other cases involving the falsification of business records
in the first degree, the very crime charged in Trump’s case.
Myth: Trump would not have been
charged for a mere bookkeeping error if his name were anything other than
Donald J. Trump.
Response: The Manhattan DA’s office has
filed charges for falsification of business records 9,794 times since 2015. When announcing the
charges, Bragg emphasized the importance of the integrity
of business records in Manhattan, the “home to the country’s most significant
business market.” He explained: “We cannot allow New York businesses to
manipulate their records to cover up criminal conduct.” At the time of Trump’ s
indictment, Bragg, had already filed 120 cases alleging violations of 175-10, all of
them in the first degree based on the concealment or commission of another
crime.
Myth: There is nothing illegal about
paying hush money, and famous people do it all the time.
Response: Paying hush money itself is not
a crime, but it is a crime to falsify business records. And it is a more
serious crime to falsify business records with, as in this case, intent to
conceal other crimes. These include violations of campaign finance laws, by
accepting donations over the legal limit, and violations of tax laws, by
inaccurately characterizing the payments as income.
Myth: The charges were filed after
lengthy delay to interfere with Trump’s campaign for president.
Response: While prosecutors have
discretion as to whether and when charges should be filed, there is no evidence
that this case was brought to interfere with an election. In fact, the trial court found that the reason for the delay in
bringing charges was partly Trump’s own doing.
In 2018, the case was being investigated by the U.S. Attorney’s Office
for the Southern District of New York, which convicted Trump’s lawyer, Michael
Cohen, for the same conduct, and referred to Trump in the charging document as
“Individual-1.” For reasons unknown, federal prosecutors
during the Trump Administration did not bring charges against Trump. Once
federal prosecutors closed their investigation, Bragg’s predecessor, Cyrus
Vance, Jr., started this investigation, but was delayed by Trump’s prolonged
challenges to grand jury subpoenas for his financial records, taking his
objections all the way to the U.S. Supreme Court.
When Vance retired and Bragg was elected, Bragg insisted on reviewing the
evidence before deciding whether to continue with the case. Ultimately, he
decided to go forward. All of these factors contributed to the delay.
Myth: Justice Juan Merchan was biased
because of his $35 financial contribution to Joe Biden and because of his
daughter’s work as a democratic political consultant.
Response: Justice Merchan sought an opinion from the New York Advisory Committee on Judicial Ethics,
regarding both of these issues, and received an opinion that he need not recuse
himself from the case. The finding of Trump’s guilt was made by a jury that
Trump’s lawyers helped select.
Myth: Juan Merchan is a judge on the
New York County Supreme Court.
Response: Merchan’s correct title is
“justice,” even though he presides in one of New York’s trial courts, which are
called the Supreme Court of each county. The state’s highest court is called,
oddly enough, the New York Court of Appeals.
Myth: Justice Juan Merchan violated
Trump’s rights to defend himself by refusing to permit him to call an expert
witness.
Response: In Trump’s defense, he wanted to
call Brad Smith, a former member of the Federal Election Commission, as an
expert witness on federal election law. Expert witnesses are permitted to
testify in trials to assist the jury in understanding facts about matters
beyond ordinary understanding. Matters of law, in contrast, are for the judge
to provide.
Justice Merchan did not prohibit Smith from testifying, but when he ruled that he could testify only about facts, and not law,
Trump’s team decided not to call him as a witness. Contrary to this myth,
Justice Merchan would have erred if he had permitted
Trump to call an expert witness to testify about the law.
Myth: Justice Merchan violated Trump’s
First Amendment rights to free speech and to testify in his own defense by
imposing a gag order in the case.
Response: The gag order entered by Justice Merchan and upheld by the
five-judge appeals division did not prevent Trump from
testifying in his own defense, a right Merchan expressly explained to Trump in open court
during the trial. Trump had every right to do so, and chose to instead exercise
his right to remain silent at trial.
The gag order restricted the defense from making
statements outside of court that targeted witnesses, jurors, staff and family members of the court and prosecution team,
though not Justice Merchan or Bragg himself. The court of appeals found that
the order properly protected witnesses and the fair administration of justice.
Myth: The U.S. Supreme Court may
intervene and overturn Trump’s conviction before his sentencing on July 11,
which is four days before the GOP convention.
Response: Trump may appeal his conviction
after he is sentenced on July 11. The case could not go before the U.S. Supreme
Court until he exhausts all of his appeals in the New York state court system,
which likely will take more than a year. Then, Trump could ask the U.S. Supreme
Court to review his case, but only for alleged errors applied to federal
statutes or the U.S. Constitution, such as the due process clauses of the 5th and 14th Amendments.
