Will Trump be convicted of felonies - or misdemeanors?

It depends on whether there was "another crime" and whether that crime can be a federal one. And one of Trump's other NY cases may hold the answer.

First off, I want to say thank you.

I am still absolutely gobsmacked at the response to the launch of this newsletter, and I still cannot entirely believe that so many people actually want to read anything I have to say. And it’s bowled me over so much that I haven’t known what to do next. Hence my radio silence of late.

(Then I realized I haven’t really written anything lengthy since I handed in the final manuscript of the book. Which then led to an entirely new wave of procrastination. Suffice it to say I now have an exceptionally well-organized and well-stocked office, and I have now purchased enough pens to survive a total penpocalypse, penmageddon, or pendemic.)

So what has finally helped me shake off the doldrums? Knowing that you’re looking forward to my next post — and wanting to be there for you, as you’ve been there for me. I’m deeply grateful to have this opportunity, and there will be much more to come soon (and with a more predictable schedule, I hope), especially as we finally begin the first of Donald Trump’s criminal trials on Monday.

Ahh, isn’t that a nice thing to say? Did we ever think that this day would come? Don’t you feel as though something is going to happen, today, or bright and early Monday morning, and Trump will win himself yet another delay?

Well I, for one, did think that this day would come. And the other trials are going to happen too. And Trump may weasel his way into additional delays and diversions, but he cannot stop justice from happening now. He may be able to forestall the inevitable for a time, but it is inevitable all the same.

We begin with what has unfortunately become known as “the hush money case.” (I will have a whole rant coming soon about how it should not be known as “the hush money case,” but I digress.)

The case is actually about falsifying business records — it’s about Trump deliberately covering up the hush money payments by disguising them as payments for legal fees to Michael Cohen, who was at that time the head attorney for the Trump Organization.

For now, let’s put aside the factual questions. There is clear and ample evidence that the phony documents were created and the phony payments were made, all on Trump’s orders; that will all get presented at the trial, and I believe that it will be more than enough for a jury to find that business records were indeed intentionally falsified.

The case instead hinges on a question of law: Is this a first-degree case, or a second-degree case?

Falsifying in the first degree is a felony. Falsifying in the second degree is a misdemeanor.

The law in question is New York Penal Law § 175.10, which provides that falsification is in the first degree if the defendant’s “intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.”

So we need to find “another crime” that Trump was covering up — and thus the next question is what qualifies as “another crime.” Must it be another New York state crime? Or can it be a federal crime? If federal crimes are fair game, it greatly expands the options for the prosecution in their efforts to persuade the court that “another crime” existed. Specifically, the inclusion of federal law would make it more likely that a campaign finance violation could be the second crime.

This is the biggest legal question in the case, and it will initially hinge on a forthcoming decision by the trial court judge, Justice Juan Merchan. Then, if Trump is convicted, it will likely be the biggest legal question in the appeals process.

Yet one of Trump’s other New York cases may hold the answer here. The New York Attorney General’s civil fraud case against the Trumps, which yielded a $464 million judgment that Trump is trying to appeal, rests on violations of a different statute, New York Executive Law § 63(12).¹ Pursuant to that statute, the AG has the power to prosecute “any fraudulent or illegal act.” And New York courts have long found that federal crimes — and federal regulatory violations — do indeed qualify as “illegal acts” under Section 63(12). The same result should be found with regard to Penal Law 175.10.

To be clear, any other result would be absurd. Neither statute says “another state crime” or “any illegal act under the laws of this state.” Absent such a qualifier in the statutory language, it is clear that the New York legislature intended these statutes to encompass both federal and state law. (I also imagine there are other New York laws that have been interpreted similarly; this is something I’ll be digging into more soon.)

If Justice Merchan rules accordingly, then the ultimate question for Trump will be a factual one to be decided by the jury. If they find that Trump intentionally used the falsified records to conceal what was in fact an unreported in-kind contribution to his presidential campaign, then Trump will get convicted of first-degree falsifying — which is a Class E felony that can carry a sentence of one to five years.

I’ll undoubtedly return to this subject as the case progresses. But in the meantime, as we get ready for next week…

What questions do you have? What ideas do you have for topics to discuss? Send along your thoughts in the comments, have a great weekend, and see you next week!

1. This was also the law the New York AG used to prosecute Trump University and the Trump Foundation, so I end up talking about it way too much in the book.