Oct.09

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Trump's Lawyers Reveal Their Plans in the Hush-Money Case

Of the four criminal cases filed against Donald Trump, the weakest and least important is the one brought by Manhattan D.A. Alvin Bragg. Bragg is claiming that the way Trump reported the hush money payments to Stormy Daniels and Karen McDougal violates state law because he falsified business documents. If Trump had been smarter, he would just have paid the two women in cash out of his own pocket and not used company money. Then everything would have been perfectly legal. But he is a cheapskate, used company money, and then cooked the books to hide it. It is the latter that got him indicted. It is not illegal to pay someone money in return for their not talking to the media about something. Claiming the payment as a deductible business expense is illegal.

The trial is scheduled for March 4, 2024, but is almost certain to be pushed back because the federal conspiracy trial will very likely begin on that date. Nevertheless, court filings are now proceeding on the assumption that the trial will start March 4. Based on these filings, an outline of Trump's defense is now out there. One of Trump's lawyers in that case is Joe Tacopina. This is the guy who represented Trump in the first E. Jean Carroll case and lost bigly. He loves being in the media and loves acting like a tough guy there. It turns out that is useless in court. Who knew? But since the A- and B-teams refuse to work for Trump, he needs to go with the C-team.

Here is an outline of Tacopina's plan.

• Selective prosecution: "It is a witch hunt. They wouldn't go after an ordinary businessman who falsified records. It's political persecution of Trump." This is a dumb defense. Bragg can show his office has a long history of going after unknown businessmen who falsify records. He does it all the time whenever he gets wind of a falsification. Tacopina is hoping some juror is convinced it is a witch hunt and won't budge, leading to a hung jury.
  
  
• It's too late: When Bragg was elected D.A., two veteran prosecutors were already on the case. He told them to drop it and they both quit. One of them, Mark Pomerantz, later wrote a book calling the charge a "zombie theory" because after the prosecutors quit, Bragg restarted the case. Tacopina will argue that when the case was restarted, the statute of limitations had passed. But during the pandemic, then-governor Andrew Cuomo extended the statute of limitations. Also, under New York State law, when a defendant is out of the state, the clock stops, thus extending the statute of limitations. This is a very nerdy and technical defense that doesn't really address the issue. Expect Justice Merchan to rule on this issue before it ever reaches the jury.
  
  
• The charges are legally defective: Tacopina will argue that the false records—invoices, checks, and ledger entries—are not business records. Nobody is going to believe that. Also, falsifying business records is a misdemeanor unless they were falsified to cover up a second crime. In this case, the second crime is a federal crime (violating federal election law), not a state crime. The jury isn't going to care about this, but an appeals court could rule that the crime being hidden also has to be a state crime. This is not an argument for winning the case in court, but for having the verdict thrown out on appeal.
  
  
• Preindictment leaks: Tacopina will argue that leaks from the grand jury proceedings put pressure on Bragg to indict Trump. This is awfully weak, and doesn't deny that Trump falsified documents, which is a crime. This is essentially the "witch hunt" defense again.
  
  
• Move to federal court: Trump thinks he would be better off in federal court because then the jury pool would be from a much broader area than just Manhattan. Earlier this year, Tacopina asked for removal to federal court and the judge said "no." That is on appeal now.
  

What is interesting here is that none of the arguments claim Trump didn't do it or what he did do is legal. All the defenses are very technical in nature. Jurors aren't going to understand them. Bragg will say: "Trump falsified business records to hide the fact that he paid the women off in a way that violated federal election law. When you falsify records to hide a crime, that is a felony in New York State." That is something the jury is going to understand. It is a weak case to start with, but the defenses are probably too nerdy for most jurors to understand. No matter how loudly Tacopina bellows at Bragg, it is not likely to work with most jurors. Clearly he is hoping there are one or two die-hard Trump supporters on the jury and he can get a hung jury. When you are going with the C-team, this is what you get. (V)