Of course, we’ve known for decades that the man was a ham. Yesterday, however, unethical prosecutor Alvin Bragg provided decisive evidence that the former POTUS is also a ham sandwich, with an abusive grand jury indictment that perfectly embodied the old saw (first coined by former Chief Judge of the New York Court of Appeals Sol Wachtler) that district attorneys could get grand juries to “indict a ham sandwich.”
When the breathlessly anticipated indictment finally came down from the grand jury (here is the indictment), it fulfilled the worst predictions of critics.
“Oh, we have to wait to see the indictment” was the mantra from Bragg’s defenders, and that was sort-of true. However, we already knew that this was a bad case: the statute of limitations has lapsed, Bragg has no jurisdiction to enforce federal law, the act of paying for a non-disclosure is not a crime, the claim that the pay-off was really a campaign contribution is based on circumstantial evidence at best, the key witness is Michael Cohen, one of the sleaziest lawyers in the professions long line of sleazy lawyers and convicted perjeror, and both the Justice Department and Bragg himself had already decided it was too weak to prosecute, at least to prosecute ethically. Moreover, Bragg’s “statement of facts” before the indictment (which you can read here), made the case sound just as weak as many suspected it was.
When we learned that there were 34 counts, we thought, or at least I did, “Wow! Bragg must have a lot more to pin on Trump than Stormy Daniels and Michael Cohen!”
Uh, no.
In the post about this issue three days ago, I highlighted the analysis of three of astute and knowledgeable and trustworthy legal analysts who have managed to keep their heads over the past seven years while all around them were losing theirs and blaming it on Trump. One, Professor Jonathan Turley, is a constitutional law expert; one, Alan Dershowitz, is a renowned defense attorney, criminal law professor and author, and the last is Andrew McCarthy, who was an assistant U.S. attorney for the Southern District of New York before becoming a writer and pundit. All seemed to agree with Dershowitz’s assessment that Bragg’s conduct might turn out to be the “worst case of prosecutorial abuse” they “have ever seen.” None could be called Trump supporters (except in the tortured logic of some Ethics Alarms commentators, who embrace the binary approach of “if you don’t want to see him destroyed by any means necessary, you’re a supporter”).
McCarthy particularly has been a fierce critic of Trump, and he is the first to provide an expert analysis of the indictment. He writes that the indictment “is even worse than I’d imagined.” His essay in the National Review (an anti-Trump conservative publication) sounds angry and frustrated to me; he even uses the description “moronic,” which is more typical of me than him. His piece concludes,
Put aside, though, that Bragg does not have the nerve to actually charge the federal crimes he is coyly intimating. To show how moronic this is, let’s pretend that these hush-money deals were in-kind campaign expenditures, that Trump decided to regard them as such, and that Trump’s campaign disclosed them to the Federal Election Commission as Bragg’s fantasy version of the law mandated. Even if all that were true, the law would not have required the Trump campaign to disclose the expenditures until the next reporting period after they occurred, sometime months into 2017. That is, such disclosures would not possibly have influenced the 2016 election. What a disgrace.
Along the way to that verdict, he points out:
Bragg’s indictment fails to state a crime. Not once . . . but 34 times. On that ground alone, the case should be dismissed…
The 34 counts are arrived at by taking what is a single course of conduct and absurdly slicing it into parts, each one of which is charged as a separate felony carrying its own potential four-year prison term.
Trump reimbursed Michael Cohen in monthly installments during 2017 for the $130,000 paid to porn star Stormy Daniels right before the 2016 election for her silence about an alleged affair. That, in reality, is a single transaction: Trump paying back a debt to Cohen. Yet, because Trump paid in installments and each installment includes an invoice from Cohen, a bookkeeping entry by the Trump Organization, and a payment to Cohen by check, Bragg not only charges each monthly installment separately; he subdivides the installments into installments (as if the invoice, book entry, and check were independent criminal events). Voilà, one transaction becomes 34 felonies!
Yup, that’s how he gets to 34 charges! When I took a law school course in prosecutorial ethics, my instructor, Watergate prosecutor Seymour Glanzer, specifically condemned this technique of over-charging as unethical and prosecution abuse. He compared it to using every shot fired that missed in a handgun murder as an attempted murder charge to go with the murder charge from the one bullet that found its mark. Back to McCarthy:
The tactics only further demonstrate the shoddiness of the case. A prosecutor holding a weak hand tries to hoodwink the jury into believing the defendant must be an incorrigible criminal, despite the lack of evidence; hence the dozens of counts. A prosecutor holding a weak hand also hedges his bets in this way: The jury may flush most of the indictment down the drain, but the unscrupulous prosecutor knows if he can secure a single guilty verdict, even with 33 acquittals, he has achieved his objective of branding his target a felon.
Then McCarthy gets really indignant:
The worst due-process abuse of Bragg’s indictment, however, is that . . . it’s not an indictment. The Constitution’s Fifth Amendment guarantees that Americans may not be accused of a serious crime — essentially, a felony — absent an indictment approved by a grand jury. The indictment has two purposes. First, it must put the defendant on notice of exactly what crime has been charged so that he may prepare his defense. Second, the indictment sets the parameters for the defendant’s closely related right to double-jeopardy protection, also set forth in the Fifth Amendment. That is, by stating the crime charged, the indictment enables the defendant to claim a double-jeopardy violation if the prosecutor attempts to try him a second time on the same offense.
Here, the indictment fails to say what the crime is. Bragg says he is charging Trump with felony falsification of records, under Section 175.10 of New York’s penal code. To establish that offense, Bragg must prove beyond a reasonable doubt that Trump caused a false entry to be made in his business records, and did so with an intent to defraud that specifically included trying to “commit another crime or aid or conceal the commission” of that other crime.
Nowhere in the indictment does the grand jury specify what other crime Trump fraudulently endeavored to commit or conceal by falsifying his records. That is an inexcusable failure of notice. The indictment fails to alert Trump of what laws he has violated, much less how he violated them. If any prosecutor were ever daft enough in the future to accuse Trump of falsifying records to conceal, say, a federal campaign-finance crime, Bragg’s indictment would be useless for double-jeopardy purposes because it doesn’t specify what criminal jeopardy Trump is in.
We needn’t speculate why Bragg is being so coy about this. He doesn’t have another crime.
This is why McCarthy believes that the indictment should be thrown out of court, and why Dershowitz speculated that a “first year law student” could defeat it. I won’t hold my breath waiting for that result, however. The judiciary is full of partisan and incompetent judges who would be happy to allow a political prosecution of Donald Trump to succeed. As for juries, well, they are made up of members of the public, the public is getting dumber by the hour, and the news media has convinced a majority of them that special rules should apply to Donald Trump because he’s just a bad guy, like Hitler.
Thus it is no surprise that a new CNN poll claims that more than half of all Americans approve of the indictment though no one surveyed had seen it when they answered questions about it. (Which means the poll should not have been taken…but This Is CNN.) The poll was taken between March 31 and April 1. 94% of Democrats approve of the indictment, and are apparently in favor of arresting, trying and imprisoning political opponents. A majority of independents (62%) agree.
(There you are, Geena! I wondered what was taking you so long!)
Don’t bet on a New York jury caring about “guilt beyond a reasonable doubt” any more than the Minneapolis jury that convicted Derek Chauvin did. Remember, Nancy Pelosi just framed the current legal system as one in which defendants have to prove their innocence.
***
Addendum: Another legal analyst who has suddenly become a “Trump supporter,” John Bolton (Bolton hates Trump), weighed in with an analysis similar to McCarthy’s:
Ethics Alarms 
I read another analysis that said the New York statute on falsifying business records applies to “enterprises.” The checks were evidently written on personal Trump accounts and a Trust account. Thus, the records were not enterprise records. Who is entitled to review and rely upon personal business records? The statute just seems weird. I can see the SEC going after public companies for falsified statements, but privately held companies and individuals? If I placed a goofy note on a check in 1972 on my checking account at the Hayes National Bank in downtown Clinton, N.Y., should I worry about an indictment from Mr. Bragg’s crack staff? I doubt any statute of limitations will be of any help to me.
Are indictments really allowed to forego specifically identifying the laws alleged to have been violated? Can that be? Isn’t this taking notice pleading too far and then applying it to Criminal Law?
I’d never heard the term “count stacking” until last week. Very apt. And thanks for the source on the “ham sandwich” line. I had no idea a judge uttered it. It seemed to just be in the air. I thought perhaps it was a line from an old “Law & Order.” Hah!
And I too am mightily tired of and angry about being condemned for not being sufficiently apoplectic about Donald Trump’s very existence.
This is beginning to feel like Ground Hog Day. Phil saw his shadow and there’s going to be four more indictments and four more years of outrageous behavior by the AUC. It’s as if Trump just got elected and the Dems are announcing he’ll be impeached before he’s even sworn in. More indictments will follow just as the two impeachments and the Mueller investigation, so called, followed the 2016 upset. Very depressing.
Wow. Bolton is impressive. I really admired his statutory history on the Federal Election Commission statute and its preemption of state law.
The NY County DA’s office really could be called “Alvin and the Chipmunks.”
And he’s a double Harvard Graduate!
The Uncle Georgie bandwagon might provide a…um…different type of ride.
You’re not wrong about the public, especially Democrats. A co-worker of mine posted on Facebook today that Stormy Daniels should be given the Congressional Medal of Honor.
Yep, we do need to be afraid. Very afraid.
I think the time for fear was 6 years ago when the descent into fascist totalitarianism became obvious. At this point, fear is pointless.
“Fear is pointless.” Better than FDR. Words to live by, N.P.
Nice post, by the way. Summarizes all the worthwhile analyses out there for the readers.
We have to be careful that the “legal experts” we’re listening to are actually experts on New York criminal law. Does anyone have the case law on whether an indictment relying on a predicate offense must state the particulars of that offense? My gut reaction is that it obviously must, but NY courts have been humming along for centuries before my gut came along.
You’d think McCarthy’s points about the Fifth Amendment and double jeopardy would be determinative, Dave. How can you respond to a charge without knowing the specifics of the crime alleged? Talk about hiding the ball….
I agree it seems intuitive. But if the intuitive answer were always the right answer, people wouldn’t spend three years in grad school before they could be licensed to practice.
But law school is about training people to be able to intuit things, for starters. Knowing applicable principles is what it’s all about. Law schools don’t teach the case law of individual states.
I’ve never been, so I wouldn’t know. But I do know that the case law, not the intuition, is what matters to the appellate division.
True. But we’re just spit balling from the peanut gallery here. Hah.
Plus, rules of criminal procedure are pretty uniform these days. Except in Louisiana where your milage may vary.
I wonder if the predicate offense being under federal law wouldn’t mean under normal circumstances (i.e., no TRUMP!) the U.S. Attorney for the Southern District of New York wouldn’t swoop in and request the case be removed to federal court? Unlikely insofar as the statute of limitations has run on the alleged FEC violation, I think?
All right. So I’ve been reading up on New York’s Criminal Procedure Law, and found this about the content of the indictment:
Sec 200.50(7):
So that settles it, right? Not exactly. The CPL seems to envisage a procedural remedy to an overly vague indictment short of dismissal. To whit, under section 200.95, the defense may request a “bill of particulars”, specifying what information is required and alleging it to be necessary for the preparation of their defense. So it looks like that’s the next stop for the Trump defense team.
The indictment is literally a copy and paste job, treating each individual check and entry into the ledgers as a separate count. It truly was absurd to read. Newspapers presented it without comment because they hoped people wouldn’t.
The entire theory of crime was that these entries into the ledger were fraudulent, because they were recorded as payment towards a “legal retainer”, rather than “reimbursement for a legal settlement”.
At face value, this “fraud” is a misdemeanor. It becomes a felony if these purported fraudulent entries were done to advance another crime.
Bragg is NOT charging Trump with this alleged underlying crime. Just for the purported fraudulent business entries to advance that hypothetical underlying crime.
Moreover, the indictment NEVER states what the purported underlying crime is. Never. Not once in the 34 copy-and-pasted counts. Just that Trump intended to advance an unspecified crime by “fraudulently” entering the settlement payments into his business ledger.
The entire indictment is that Donald “fraudulently” mislabeled the settlement reimbursement payments as “legal retainer” payments 34 individual times on various ledgers and individual written checks, to advance an unspecified crime. There is literally nothing more written in the indictment itself.
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If we then look to the statement of facts (disclaimer, I read the full indictment, but only the introduction to the statement of facts), the underlying crime purportedly advanced is sort of spelt out.
Essentially, the settlement with Stephanie Clifford is purported to be an illegal campaign contribution. This is stated as a “fact” because Michael Cohen pleaded guilty to making an illegal campaign contribution by facilitating the settlement with Ms. Clifford. (The case sounds painfully boring if we use her birth name, doesn’t it).
Again, Trump is NOT being indicted on making an illegal campaign contribution (to himself) by settling with Ms. Clifford, only that he wrote several check and ledger entries that advanced the purported illegal election contribution.
The underlying crime has never been tested by a jury, let alone a jury seated for a criminal trial against Donald Trump. The crime has only been established because Michael Cohen pleaded guilty rather than risk a greater prison sentence.
The entire theory of the indictment of Donald Trump rests on Michael Cohen being too broke and/or cowardly to defend himself against the campaign finance violation alleged against him for facilitating the settlement with Ms. Clifford.
I don’t recall the details, but I imagine Cohen waived his right to appeal the case in his plea bargain, so the underlying purported crime Donald Trump purportedly advanced with “fraudulent” ledger entries may never be properly contested in court.
The theory is thus that Trump committed a crime by obtaining an otherwise legal settlement during the election. Trump has NOT been charged with this purported crime, only that he made 34 fraudulent business entries to advance that crime.
And linchpin Michael Cohen is represented, likely pro bono, by none other than Clinton consiglieri Lanny Davis! What a coincidence!
I’m guessing there’s some major quid pro quo involved in that representation.
On what dates were these payments supposedly made and what entity actually made the payments? I.E. were the payments made from Trump’s personal account, or from one of the business accounts? From what I have read elsewhere they were made from the business accounts after Trump had divested himself of the company. Meaning it was not actually Trump himself who made the payments that were supposedly fraudulent because the company was in a blind trust and he could not have known they were made at all.
From: https://www.politico.com/news/2023/04/04/trump-indictment-takeaways-analysis-00089988
“For Trump to be convicted of falsifying business records, the records at issue have to be, well, business records.
The New York law at issue requires that the falsification involve the records of “an enterprise,” and each count of the indictment claims that Trump falsified records “kept and maintained by the Trump Organization.”
The facts are more complicated. It’s true that the checks sent to Cohen, which labeled the payments as legal expenses, were issued by employees working for Trump’s business empire. But they were not charged to Trump’s businesses. Instead, the payments were made from one of Trump’s personal accounts or from a Trump family trust.
The key question, and one that is sure to feature in efforts by Trump’s lawyers to derail the case, is whether documents that happened to pass through the Trump Organization or handled by Trump Organization personnel are automatically classified as business records, even if the source of the funds was Trump’s personal accounts.
Bragg’s statement of facts declares that “each check was processed by the Trump Organization” and gives further details about how Cohen arranged payment from bookkeepers at the Trump companies. Prosecutors say at least two of the payments were approved by longtime Trump Organization chief financial officer Allen Weisselberg, who pleaded guilty to unrelated tax evasion charges in 2021.
“The TO CFO approved the payment, and, in turn, the TO Controller sent the invoice to the Trump Organization Accounts Payable Supervisor (the “TO Accounts Payable Supervisor”) with the following instructions: ‘Post to legal expenses. Put ‘retainer for the months of January and February 2017’ in the description,’” the prosecutors’ filing says.
Legal experts said they expect Trump’s lawyers to argue to the judge and, if necessary, a jury that wholly personal expenses that are simply handled by an accountant or other clerical personnel don’t become the “records of an enterprise” just by virtue of that process.”
Thank you. That clears up several questions I had.
You’re welcome. It strikes me as a good, close analysis of a significant legal point that should ordinarily be critical in, you know, a legal proceeding.
Minor correction: the giggling idiot is the foreman of the grand jury in Georgia, not this New York grand jury (though both juries appear to be composed primarily of idiots).
Oops. I forget that they are playing “Get Trump” in so many jurisdictions. Fixed.
It’s kind of like keeping track of the NCAA basketball tournament while it is in progress.
Bragg is counting on getting a jury that has already made up its collective mind to convict Trump, and all evidence is irrelevant. To that end, expect Bragg to vigorously oppose any change of venue request.
BTW Jack, You said: but the unscrupulous prosecutor knows if he can secure a single guilty verdict, even with 33 acquittals, he has achieved his objective of branding his target a felon.
Since these 34 charges are essentially clones of each other, how can one reasonably convict on one charge yet acquit on the others?
That was Andrew, not me. But it’s a good question.
To the lawyers here who helped non lawyers understand what is important, I thank you.
It seems to me that if the process works HRC could be in line for a 30,000 count indictment for obstruction of justice by deleting all those emails on her illicit mail server when she was being investigated.
Good one, Chris! To paraphrase Noah Cross (John Huston in the epic Chinatown):
You Gotta Nasty Way Of Lookin’ At Things; I Like That!
Or how about her showing her payments for the Pee Tape Dossier as legal fees? Uh, Alvin, wouldn’t that ring every bell in your Trump indictment? How’s that for paying for honest-to-God election interference (unambiguous intent) with campaign funds and then calling them something else? Incredible arrogance and hutzpah.
And the Clintons are New York residents!
Great headline, by the way. Cracked me up this morning when I could use it. I think I’ll prepare Mrs. OB and myself ham sandwiches this afternoon in honor of recent events.
[Grace and I had many a wonderful ham sandwich thanks to you!]
Bueno.
“Of course, we’ve known for decades that the man was a ham.”
Dammit, Jack, that’s another keyboard you owe me!
–Dwayne