Tag Archives: Joshua Steinglass

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President Trump: Convicted Felon or Political Target | Part III

The is is Part III of a four part series that’s looking at the details of the case that was made against President Trump that resulted in him being labeled a convicted felon.

Here’s how the prosecution’s case is constructed…

We’re now on #2, Federal Election Law…

#2 Federal Election Law – The prosecution insisted that Trump’s payment to Stormy Daniels violated Federal Election Law.

Here’s the problem…

The FEC declared President Trump innocent of any wrongdoing involving his payment to Stormy Daniels in 2021.

 

Statute of Limitations

The crimes Trump was convicted of date back more than five years, but they withstood an initial court challenge because of a pandemic-era extension.Trump was indicted on March 30, 2023, more than six years after the earliest charge in the indictment, which dates to Feb. 14, 2017. That’s beyond the five years typically allowed by the statute of limitations, but there’s a catch: Former New York Gov. Andrew Cuomo extended the time limit to file charges in all criminal cases when courts were disrupted by the COVID-19 pandemic in 2020.

Trump’s lawyers moved to dismiss the case in its early stages based on the statute of limitations, but Merchan rejected the argument. In a pretrial decision, the judge said the pandemic extension stretched out the deadline for the prosecution by one year and 47 days.

“In other words, this felony prosecution had to be commenced within six years and 47 days from when the crimes were allegedly committed,” Merchan wrote.

Trump was charged within days of the potential deadline. The extension “brought the conduct described in the indictment within the prescribed five-year time limit,” Merchan wrote. (USA Today)

The Federal Elections Commission (FEC) had closed its investigation into whether former President Trump illegally made hush money payments to women prior to the 2016 election.

The FEC voted 4-1 to close the inquiry after failing to find that Trump or his campaign “knowingly and willfully” violated campaign finance law when his former attorney Michael Cohen paid $130,000 to porn star Stormy Daniels to keep her from disclosing an alleged affair.5

The FEC declared President Trump innocent of any wrongdoing involving his payment to Stormy Daniels in 2021. Yet, the State of New York decided to ignore that verdict and attempted to charge him with the same crime in 2024.

Another weakness in the prosecution’s case is the fact that President Trump’s alleged violation happened six years ago – a full year beyond the state’s statute of limitations. While a provision was made to extend that timeframe, given the way courts were disrupted by COVID-19, the fact that under any other circumstance, the prosecution’s case would never have made it to trial.

Bear in mind that a falsified business record is a misdemeanor. In order for it to be classified as a felony, the prosecution had to allege that the money was intentionally misrepresented in order to conceal another crime. But not only did that misdemeanor have to be linked to another crime in order for it to qualify as a felony, it had to be asserted as a felony in order for an exception to the statute of limitations to apply.

#3 State Election Law – According to Judge Merchan, New York State Election Law Section 17-152 was violated.

Here’s the problem…

State courts have no jurisdiction in cases such as this as defined by the Federal Election Campaign Act of 1971.

Again, in order for the 34 counts of falsified business records to resonate as felonies, it has to be proven that they were falsely documented in order to conceal another crime. The prosecution asserted that one of the three possible crimes was a violation of New York State Law Section 17-152  which refers to a “Conspiracy to promote or prevent election.” It goes on to say that, “Any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor.”6

At one point, Judge Merchan elaborated by saying, “Under our law, a person is guilty of such a conspiracy when, with intent that conduct be performed that would promote or prevent the election of a person to public office by unlawful means, he or she agrees with one or more persons to engage in or cause the performance of such conduct.”7

The problem, however, is that the state has no jurisdiction when it comes to Federal elections. In other words, if the FEC declares that the money paid by President Trump to Michael Cohen was not in violation of the law, that ruling supersedes and preempts any provision of State law with respect to election to Federal office.8

Judge Merchan and the prosecution were completely wrong in making a violation of State Election Law as part of the trial because Federal Law renders any attempt on the part of the state to override a Federal ruling a moot point.

#4 Tax Fraud – Prosecution accused President Trump of tax fraud when he disguised payments to Michael Cohen.

Here’s the problem…

The DA introduced no evidence to support the claim and the court didn’t rule on the issue.

In his legal review, Professor Gregory Germain elaborated on the issue of tax fraud as presented by the prosecution:

Early in the case, the District Attorney suggested that Trump might have been disguising the payments to commit tax fraud. But the DA introduced no evidence to support that claim. Trump asked Judge Merchan to prevent the District Attorney from arguing the tax fraud point. The District Attorney argued that falsifying the payment as income to Cohen rather than a reimbursement was a “tax law violation,” but Trump pointed out that there is no evidence that anyone received a tax benefit from the characterization. The court did not rule on the issue.9

So, however “tax fraud” might’ve been documented in the prosecution’s “Bill of Particulars,” it was never proven let alone discussed.

And the hits just keep on comin’!

Stay tuned for the exciting conclusion…

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President Trump: Convicted Felon or Political Target | Part II

This is Part II of a four part series that looks at the case New York state brought against President Trump that resulted in him being effectively labeled a “convicted felon.”

But when you take the time to look at the accusations and contemplate all of what the case was actually built upon, it’s obvious there’s more – and less – to this case than what meets the eye.

We ended the last post by enumerating the 34 felonies that President Trump was charged with. Each one of them represented a falsified business record, which is a misdemeanor, unless you can prove that the mischaracterization was done for the purpose of concealing another crime.

New York state insisted that the crime being concealed was a violation of either Federal Election Law, State Election Law, or Tax Fraud.

Take your pick. It could be one or all of the above.

It looked like this…

But at each stage of the prosecution’s case, you have some toxic flaws that neither the judge, nor the jury, nor the prosecuting attorney’s seemed willing to acknowledge.

Let’s take a look…

#1 Hush Money – the money paid to Stormy Daniels, according to the prosecution, should’ve been reported to the FEC as a campaign expenditure. It was intentionally documented incorrectly in order to cover up either a violation of Federal Election Law (2), State Election Law (3), or an instance of Tax Fraud (4).

Here’s the problem…

The money paid to Stormy Daniels DID NOT have to be reported to the FEC as a campaign expenditure. However he documented it, the prosecution is wrong in insisting that the money should’ve been reported to the FEC.

Washington Examiner reporter, Byron York, explains:

Manhattan District Attorney Alvin Bragg has charged Trump with falsifying bookkeeping records of a nondisclosure payment in order to commit or conceal another crime, Bragg still hasn’t revealed what that other crime is. It’s really the key to the whole case. Without the other crime, there would be no charges against Trump in this matter. The fact that we — and that includes the defendant — still don’t know what the other crime is is one of the great injustices of a felony prosecution that never should have happened…[Bragg’s] theory is that if Michael Cohen paid Daniels $130,000 in the fall of 2016 to keep her from going public with her story that she and Trump had a sexual encounter and then Trump repaid Cohen in 2017, then that was a campaign contribution and should have been reported to the FEC. The payments were made “for the purpose of influencing any election,” the theory continues, and the Trump campaign should have filed a document with the FEC listing among its campaign contributions and expenditures that it received and spent $130,000 for “hush money.”

If you think that sounds a little odd for an FEC disclosure, you’re right. That’s where one of the critical witnesses to be called by the Trump defense comes in. Bradley Smith is a former chairman of the FEC, and on many occasions, including long before Trump, he has argued that there are all sorts of things a candidate can spend money on that are not legally classifiable as “for the purpose of influencing any election.” … Smith, having headed the FEC, has many examples from the commission’s enforcement of federal election law that illustrate his point. He knows what he is talking about, and it seems clear that his expert opinion is that paying off Daniels, no matter what one might think of it, is not a campaign expenditure or donation that FECA requires a candidate to disclose. The Trump defense plans to call Smith as a witness. Not because he has any personal knowledge of the Trump transaction but because he understands, and has enforced, the campaign law that Bragg’s prosecutors appear to be planning to use against Trump. But Merchan has forbidden Smith from testifying about most of the issues involved in the case.3

The Lost Testimony of Bradley Smith
Bradley Smith’s testimony would’ve severely undermined the prosecution’s case. He tweeted some of what he would’ve said had Judge Merchan allowed him to take the stand and elaborate on how Campaign Law actually applied to President Trump’s situation…

Judge Merchan has so restricted my testimony that defense has decided not to call me. Now, it’s elementary that the judge instructs the jury on the law, so I understand his reluctance. But the Federal Election Campaign Act is very complex. Even Antonin Scalia—a pretty smart guy, even you hate him—once said “this [campaign finance] law is so intricate that I can’t figure it out…

Someone has to bring that knowledge to the jury. That—not the law—was my intended testimony. For example, part of the state’s case is that they wrongly reported what they knew to be a campaign expenditure in order to hide the payment until after the election. Cohen even testified they just wanted to get past the election…

So, we were going to go over the reporting schedules, showing that even if they thought it was a campaign expenditure to be reported, an expenditure made on October 27 (when $$ sent to Daniels atty) would not, under law, be reported until Dec. 8, a full 30 days after election. But while judge wouldn’t let me testify on meaning of law, he allowed Michael Cohen to go on at length about whether and how his activity violated FECA. So effectively, the jury got its instructions on FECA from Michael Cohen! (What an Expert Witness for Trump’s Defense Would Have Told Jurors If He Hadn’t Been Muzzled by the Judge)

Everything about the prosecution’s case requires the money paid to Stormy Daniels to be categorized as illegal in the context of Election Law. If the priority is a fair trial, it only makes sense that you would seek out the clarity provided by someone who can speak with authority as to whether or not Trump did, in fact, break the law from the standpoint of the FEC.

Bradley Smith is that authority and Bradley Smith was forbidden by Judge Merchan to provide that clarity.

Jonathan Turley is a professor at George Washington University Law School and has testified in United States congressional proceedings about constitutional and statutory issues. Since the 1990s, Turley has been a legal analyst for several major news networks and is currently a legal analyst with Fox News. He said this about the prosecution’s closing argument made by Joshua Steinglass:

Steinglass just said that it is a fact that these were campaign violations. Nothing from the judge and nothing for the defense. This jury has now been told dozens of times that the payments were campaign violations and the Judge is letting that false claim stand uncontradicted…He literally said that Trump lied in denying that these were campaign contributions because they were in fact such violations. Merchan is treating this all as argument. However, Steinglass is making a statement of law that is contradicted by a wide variety of experts.4

Among the “wide variety of experts” that Turley is referring to is Bradley Smith, whose testimony would’ve prevented Steinglass from invoking the discredited assumption that Trump had violated Election Law as an established fact (see “What an Expert Witness For Trump’s’ Defense Would Have Told Jurors if He Hadn’t Been Muzzled by the Judge” sidebar).

It’s as though the court wasn’t really looking for the truth as much as it was looking for an excuse to find Trump guilty.

Stay tuned for Part III!

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President Trump: Convicted Felon or Political Target | Part I

Imagine buying a printer and documenting it as a business expense.

Perfectly legal.

But pretend for a moment that instead of buying a printer, you bought heroin. Now, not only are you breaking the law by purchasing illegal drugs, but you’re also committing a crime in the way you reported it as “something for the office.”

If instead of buying a printer, you bought an ice cream cone, you’ve got a “falsified business expense,” but that’s not necessarily a problem. What makes it criminal is the crime being concealed by documenting the expense as something legitimate.

If someone is going to accuse you of committing a felony because of a falsified business expense, they have to prove to the jury that you’re guilty of committing a crime that was funded by the money you reported as a legal transaction. In the case of our example, the purchase of heroin.

But if you bought ice cream, that’s not illegal and however you accounted for it is not a felony and…

…they don’t have a case.

These are the 34 “felonies” that President Trump was charged with:

 Invoice from Michael Cohen, marked as a record of the Donald J. Trump Revocable Trust 2/14/17
 Entry in the Detail General Ledger for the Donald J. Trump Revocable Trust, bearing voucher number 842457 2/14/17
 Entry in the Detail General Ledger for the Donald J. Trump Revocable Trust, bearing voucher number 842460 2/14/17
 Check and check stub, Donald J. Trump Revocable Trust Account, bearing check number 000138 2/14/17
 Invoice from Michael Cohen, marked as a record of the Donald J. Trump Revocable Trust 3/16/17
 Entry in the Detail General Ledger for the Donald J. Trump Revocable Trust, bearing voucher number 846907 3/17/17
 Check and check stub, Donald J. Trump Revocable Trust Account, bearing check number 000147 3/17/17
 Invoice from Michael Cohen, marked as a record of Donald J. Trump 4/13/17
 Invoice from Michael Cohen, marked as a record of Donald J. Trump 5/22/17
 Entry in the Detail General Ledger for Donald J. Trump, bearing voucher number 855331 5/22/17
 Check and check stub, Donald J. Trump account, bearing check number 002700 5/23/17
 Invoice from Michael Cohen, marked as a record of Donald J. Trump 6/16/17
 Entry in the Detail General Ledger for Donald J. Trump, bearing voucher number 858770 6/19/17
 Check and check stub, Donald J. Trump account, bearing check number 002740 6/19/17
 Entry in the Detail General Ledger for Donald J. Trump, bearing voucher number 858772 6/9/17
 Check and check stub, Donald J. Trump account, bearing check number 002741 6/19/17
 Invoice from Michael Cohen, marked as a record of Donald J. Trump 7/11/17
 Entry in the Detail General Ledger for Donald J. Trump, bearing voucher number 861096 7/11/17
 Check and check stub, Donald J. Trump account, bearing check number 002781 7/11/17
 Invoice from Michael Cohen, marked as a record of Donald J. Trump 8/1/17
 Entry in the Detail General Ledger for Donald J. Trump, bearing voucher number 863641 8/1/17
 Check and check stub, Donald J. Trump account, bearing check number 002821 8/1/17
 Invoice from Michael Cohen, marked as a record of Donald J. Trump 9/11/17
 Entry in the Detail General Ledger for Donald J. Trump, bearing voucher number 868174 9/11/17
 Check and check stub, Donald J. Trump account, bearing check number 002908 9/12/17
 Invoice from Michael Cohen, marked as a record of Donald J. Trump 10/18/17
 Entry in the Detail General Ledger for Donald J. Trump, bearing voucher number 872654 10/18/17
 Check and check stub, Donald J. Trump account, bearing check number 002944 10/18/17
 Invoice from Michael Cohen, marked as a record of Donald J. Trump 11/20/17
 Entry in the Detail General Ledger for Donald J. Trump, bearing voucher number 876511 11/20/17
 Check and check stub, Donald J. Trump account, bearing check number 002980 11/21/17
 Invoice from Michael Cohen, marked as a record of Donald J. Trump 12/1/17
 Entry in the Detail General Ledger for Donald J. Trump, bearing voucher number 877785 12/1/17
 Check and check stub, Donald J. Trump account, bearing check number 003006 12/1/17

These were all identified by the prosecution as falsified business records.

34 falsified business records, 34 felonies.

But remember, in order for a falsified business record to quality as a felony, it has to be proven that the money was intentionally categorized to conceal the fact that the law had been broken.

An excerpt from Manhattan prosecutors’ bill of particulars in the Donald Trump hush-money case referenced in the “Old, unused, and ‘twisty’ — meet the obscure NY election-conspiracy law that just might get Trump convicted” article printed in the Business Insider, April 27, 2024.

But what was the crime?

You can’t tell by looking at the business records, apart from the name, “Michael Cohen.”

In 2018, the Wall Street Journal reported that Michael Cohen, Donald Trump’s lawyer, cut a check to Stormy Daniels in exchange for her discretion when it came to her relationship to Donald Trump, given its sordid characteristics that occurred in 2006. That same check was later categorized as an illegal contribution to Trump’s presidential campaign and Cohen wound up serving three years in prison.1

Later, however, it was alleged that Trump tried to reimburse Cohen for the money paid out to Daniels and used a series of falsified business records in order to conceal the true nature of the payment made to the former porn star. In doing so, at least one of three crimes were committed (see sidebar):2

  • Violation of State Election Law
  • Tax Fraud
  • Federal Election Law

But you can’t simply list 34 transactions and call them 34 felonies. You have to prove that every one of those line items was intentionally mis-categorized in order to conceal a violation of either State Election Law, New York Tax Law, or Federal Election Law.

Get ready for Part II…!