New York’s Political Prosecution of Donald Trump

Jacob Hornberger is seeking the 2024 Libertarian Party presidential nomination. View his video blog and written blog at his campaign website: www.jacobforliberty.com.

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Electing Donald Trump to the presidency again would be an absolute disaster for the American people, but that also applies to every other potential or actual Republican presidential candidate. 

For that matter, it also applies to President Biden, Kamala Harris, and every other potential presidential candidate in the Democrat Party. 

That’s because all of these people are firmly committed to the continuation of the welfare-warfare state way of life that both Republicans and Democrats have foisted upon our land and that is taking our country down from within, especially given the out-of-control federal spending, debt, and inflation that come with it.

But the way to defeat these people is at the election box, not by using the criminal-justice system to harm or defeat their political candidacies, which is precisely what New York prosecutor Alvin Bragg, in my opinion, is doing with his plan to secure a criminal indictment against Trump for hush money that he allegedly paid to porn star Stormy Daniels. 

Trump’s payment to Daniels became public in January 2018, when the Wall Street Journal published a story about it. 

Bragg, a Democrat, assumed office as District Attorney on January 1, 2022.

Grand juries are customarily rubber stamps for prosecutors seeking indictments. Since the matter had been public for four years, Bragg had all the evidence he needed to seek an indictment immediately after assuming office. If he had done that, the case would be over by now. 

Instead, Bragg waited for more than a year to seek an indictment, knowing full well that a criminal trial would take place at the height of the presidential campaign. Therefore, from a political standpoint, the timing of Bragg’s indictment is obviously highly suspicious.

More important, in my opinion, it is highly unlikely that Bragg will be able to prove beyond a reasonable doubt that Trump violated the statute under which he is stands to be charged. 

The facts being alleged are as follows: Trump had sex with Daniels. To keep her quiet during his 2016 campaign for president, he paid her $130,000. Trump’s attorney, Michael Cohen, actually paid her the money on behalf of Trump. Trump then reimbursed Cohen with payments that were disguised as attorney’s fees. 

Therefore, the criminal charge would be that Trump falsified his business records by making it look like his payments to Cohen were for attorney’s fees rather than reimbursement for hush money. But the law does not simply criminalize the filing of false business reports. The law requires more than that before a person can be convicted. The New York statute states:

“A person is guilty of falsifying business records in the second degree when, with intent to defraud, he (1) makes a false entry in the business records of an enterprise….”

The operative words are: “with intent to defraud.” 

In every criminal prosecution, the state must prove beyond a reasonable doubt all, not just some, of the essential elements of the crime. The essential elements of the crime are set forth in the law itself. Here, there are two essential elements, not just one. Those two essential elements are:

1. That Trump falsified business records. That should be fairly easy to prove.

2. That Trump falsified those business records with an intent to defraud. That essential element could prove to be a major obstacle to securing a criminal conviction of Trump.

After all, who did Trump intend to defraud? There is really only one reasonable possibility. If Trump took a deduction on his New York income-tax returns for the money he paid in “legal expenses” to Cohen, then he could be in hot water. But it is difficult for me to imagine that he would be that stupid. My hunch is that he did not take that deduction. 

If he didn’t take the deduction, then who did he intend to defraud? The answer is: No one. He simply falsified business records, which is not sufficient for a conviction. The state must also prove that he did it with the “intent to defraud.”

Black’s Law Dictionary defines “defraud” as follows: “To practice fraud; to cheat or trick; to deprive a person of property or any interest, estate, or right by fraud, deceit, or artifice.”

Who did Trump cheat or trick out of money or other property interest with the payment of hush money to Daniels? Answer: No one.

The Washington Post reported that "executives at Trump’s company agreed to pay Cohen $420,000 for his trouble, a figure intended to reimburse him not just for the Daniels payment, but additional tax payments….” 

Therefore, it’s reasonable to assume that Cohen paid income taxes on the money that Trump paid Cohen as “attorney’s fees.” If so, then the state of New York has actually been unjustly enriched, given that Cohen’s firm didn’t need to report Trump’s reimbursement as income. It’s even possible that the amount of that unjust enrichment exceeds the amount of money the state of New York lost if Trump did, in fact, take a deduction for the payment. 

Take a look at this article entitled “Survey of Past New York Felony Prosecutions for Falsifying Business Records.” It lists many cases that have been brought under the statute under which Trump would be prosecuted. Every single one of them involves cheating another person or the state of money or some other property interest.

Assuming that Trump did not cheat the state of New York out of tax revenue by claiming a deduction for the hush money that he disguised as “legal expenses,” my hunch is that New York District Attorney Alvin Bragg is going to fall flat on his face in his criminal prosecution of Donald Trump. But like in other countries where political leaders use the criminal-justice process to prevent people from running against them (e.g., Russia and Nicaragua), the political damage will have already been done.