Professor Buzz Scherr breaks down the felony indictment of former President Donald J. Trump in New York State Supreme Court and the political situation surrounding it. Produced and Hosted by A J. Kierstead
Read about the indictment: https://manhattanda.org/district-attorney-bragg-announces-34-count-felony-indictment-of-former-president-donald-j-trump/
Read the FiveThirtyEight article on political implications: https://fivethirtyeight.com/features/trump-indictment-2024-election/
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Legal topics include criminal law, elections, fraud, tax, New York, jury
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A. J. Kierstead, Host:
This is the Legal Impact Podcast presented by the University of New Hampshire Franklin Pierce School of Law, now accepting applications for JD and graduate programs. Learn more and apply at law.unh.edu. Opinions discussed are solely the opinion of the faculty or hosts, and do not constitute legal advice or necessarily represent the official views of University of New Hampshire and UNH Franklin Pierce School of Law. I'm your host, A. J. Kierstead, and today I'm joined by Professor Buzz Scherr, director of the International Criminal Law and Justice Program. Learn more about that program at law.unh.edu/iclj. Welcome back to the show.
Professor Buzz Scherr:
Great to be back.
A. J. Kierstead, Host:
All right, so we're going to open up a huge can of worms and talk about a former president that's been indicted in New York, and there's just so much to it. I don't even know where to begin with the Donald Trump indictment because it's a federal crime, but it's being done at the state level. Is it the federal crime? Is it campaign financing [inaudible 00:01:03]?
Professor Buzz Scherr:
It's not as confusing [inaudible 00:01:05].
A. J. Kierstead, Host:
Okay, break it down for me, Buzz.
Professor Buzz Scherr:
Yeah, you're just over-confusing it, so to speak. So there's three layers to it. It is not a crime to have an affair with a porn star, number one. It is not a crime to cover up an affair with a porn star. Both of those we're pretty certain happened, right?
A. J. Kierstead, Host:
Yes.
Professor Buzz Scherr:
There may be two people in the world who believe he actually didn't have an affair with the porn star when his wife was pregnant with their son. But putting that aside, so not a crime to have an affair with a porn star, not a crime to cover up an affair with a porn star. But then the next layer gets more complicated. It depends on how you cover it up. So if you falsify business records in order to cover it up, for example, call the hush money legal expenses, that's a misdemeanor in New York state. And falsifying business records is a very, very, very common misdemeanor when the Manhattan District Attorney is going after a white collar people. It's kind of like getting Al Capone on tax fraud. You go after him on falsifying business records.
Layer number four, if you falsify your business records in order that either you don't get caught playing games with the tax code in New York State, if you do that, so you don't get caught playing games with the tax code by virtue of the way you paid the hush money, that's a felony. Falsifying a business record usually is a misdemeanor in New York. If you do it with the intent to commit a fraud, to defraud, it's a felony. That's one of the set of charges, felony charges against him.
A. J. Kierstead, Host:
And what would that fraud be? Would it be related to the fact he's running for president?
Professor Buzz Scherr:
No, no, no, no. The tax code fraud is he and Michael Cohen played games with... He repaid Michael Cohen extra money in order to cover Michael Cohen for having to put down the 130,000 hush money on his taxes because he got it from him. So that's a tax code violation. That's a crime, monkeying around in the way they were with covering up using a gimmick, illegal tax approach to cover up the hush money. So that's one set of felonies. The other set of felonies is falsifying business records so the money does not appear as if it needs to be reported to either state election authorities or federal election authorities. Because if you had to report that money as paid to Stormy Daniels, it could be discovered by in intrepid reporters like you. And that was his whole goal here was so it couldn't be discovered by intrepid reporters.
And so there's a state election law violation there when you are... This looks like a contribution to... an in-kind contribution. He's helping his election campaign by paying this hush money is basically how it comes out. And that can be... The non-reporting of that there, that is, he's helping his election campaign by covering this up, by paying this hush money. And part of that, the start of that train, is falsifying the business records in order to cover up what actually counts as a contribution under the New York State election code and the federal election code. So that's the sum of it. This isn't about hush money. It's not about having an affair with Stormy Daniels. It's not about paying hush money. It's the stupid way he did it. But you and I, speaking for you in this case, A.J., you and I know whether it's the games he played with valuing his property high to show he has a lot of assets, valuing it low so he doesn't have to pay much money on taxes, that game-
A. J. Kierstead, Host:
Donald Trump and Michael Cohen are not naive to the legal system and how it works in the state of New York.
Professor Buzz Scherr:
No. So this, not that this kind of evidence, what he does elsewhere, the games he plays elsewhere, but this is completely consistent with how he's made his way through the business world for the last 30 or 40 years, however long it's been. So that's the basic lay of the land. The Manhattan District Attorney's office has charged felony falsifying business records many times where the intent to defraud piece... There's two parts to it, the falsifying the business records and the intent to defraud. They've done it with all sorts of different claims of intent to defraud. What's interesting about it and what has confused some people is, at the federal level, intent to defraud is interpreted very narrowly and only means intent to defraud for financial or pecuniary gain, just very limited in that way. And so some of the commentators who've been talking about this case said, "Well, it's really a risk going for the felony and the intent to defraud piece because there's no pecuniary gain or financial gain really from it."
That's not how courts in New York have interpreted intent to defraud in this context. There's a lot of case law out there that intent to defraud can be a lot of different things, including tax fraud, including election shenanigans. So in that sense, I think it's overstating it to say that making these falsifying business record charges felonies is a reach. It really isn't a reach. We'll see whether they have proof problems. We'll see. It's an interesting question whether... He's not charging Trump in a formal New York State indictment with violating federal election law. He's just making that an attendant circumstance to the state law violation of falsifying business records. So the piece about federal elections law, there might be some shenanigans on that in that area, and the judge might not buy it. Some people say it feels wrong that New York State can charge him with a federal crime.
A. J. Kierstead, Host:
That really stood out too like-
Professor Buzz Scherr:
Yeah, instinctively, it doesn't sound right, but they're not really charging him with a federal crime. They need to show that he had intent to defraud, but it's not an independent crime.
A. J. Kierstead, Host:
And the felonies are also important with regards to everything because of the statute of limitations in New York too, correct?
Professor Buzz Scherr:
Yeah, that can be an issue too. But the state election law and the state election law, intent to defraud claims, state tax fraud claims, those are unremarkable ways to use felony falsifying business records.
A. J. Kierstead, Host:
Now, what, in your opinion, is the chance that this actually gets sorted out, A, before the next election, and B, I mean, maybe short term, whether honestly it ends up happening in the... I think they're predicting like December or something like that, possibly going to court. The way Trump and Cohen, especially over decades have really done, I don't want to say a fantastic job, but an efficient job, maybe, at making sure things keep getting pushed back on and on and... He wants this to happen either closer to the election or-
Professor Buzz Scherr:
Yeah, I wouldn't call it an efficient job, an effective job at postponing, postponing, postponing. The problem he is running into, is starting to run into, is he's not as in control... Now that he is been indicted, he's not as in control of his life as he used to be when he was just playing the game in the media and postponing things. And he's not as in control he was in civil cases where he have a lot more control over scheduling. He's got a judge who has asked them already when they want to go to trial. The Trump people, one side said... I think the prosecutors said January of '24, and Trump said April of '24. It wouldn't be unusual, particularly since the judge is fully aware of Trump's behavior, the judge could just say, "We're going to trial this October. File all your motions by this deadline. File all the motions you ever want to file in this case by July 1st. We'll spend the month of July having hearings on your blizzard of motions, of which there will be, and then we'll go to trial in October. Get ready."
A. J. Kierstead, Host:
Are judges elected in this jurisdiction in New York?
Professor Buzz Scherr:
Yes.
A. J. Kierstead, Host:
I mean, this is something that's definitely to be considered with regards to maybe the leaning of how quickly the judge may want to make it happen and maybe what direction the case might go.
Professor Buzz Scherr:
Yeah, I think it's fair to say a Manhattan judge, if one believes that their political leanings will be predictive of how they'll manage the case, which is an open question, but in Manhattan where this was charged, ain't no Republican judges in Manhattan.
A. J. Kierstead, Host:
Exactly. And I mean, ultimately, do we know if this will be jury at this point?
Professor Buzz Scherr:
Yes. Unless he waives a jury, but no way, and expletive deleted, he'll waive a jury.
A. J. Kierstead, Host:
He'll want that chance, especially in Manhattan. Once again, he's going to want that chance that maybe someone gets convinced on the jury.
Professor Buzz Scherr:
He's trying to get a change of venue to Staten Island.
A. J. Kierstead, Host:
Oh yeah. Oh yeah, of course. That makes so much sense.
Professor Buzz Scherr:
Or if I were him, I'd look for Long Island too. It's kind of BS motion because the argument for a change of venue is publicity. He's not going to win for two reasons. One, it's not like the publicity among Staten Islanders is any... They're not less subjected to Trump publicity, negative or otherwise than Manhattan or Long Island ones, number one. Number two, the lead case in this area, federally, although it's not in federal court, but the US Supreme Court has said no problem in the marathon bombing case of having a change of... the judge not granting a change of venue away from the jurisdiction that was locked down for three days while they looked for the marathon bombers. The federal district court judge there didn't change the venue even in that circumstance. And some of the people on the jury had been locked down. Federal Supreme Court said, "Not a problem." So he's not going to win. But that's just one of a bazillion blizzard of motions he's going to file.
A. J. Kierstead, Host:
What about the amount of time it's taken to bring this to indictment at this point? I mean, there's nature that the election's coming up. I'm not giving my political opinion one way or another on it, but this has been considerable amount of conjecture that this is very politically motivated and that this prosecutor, with the funding where his campaign came from and things like that, has been brought into question considerably.
Professor Buzz Scherr:
Yeah, let me address several of those things. I think a PAC that got $5,000 from George Soros, the bugaboo of all far right people... I don't know why, but... The PAC that got $5,000 from him and that raised millions of dollars for Alvin Bragg's election campaign, that's the argument, the political contribution. I mean, I think it's BS, that argument. There's really nothing there, but for those who are of the faith, the Trump faith, it makes them feel good about that. Number two, there's two sides to "it took a long time." One side is the prosecutor wanted to be immensely careful to make sure there really was solid charges here before they brought an indictment. Any good prosecutor would do that.
A. J. Kierstead, Host:
A lot of this came down to Michael Cohen. Did he confess? I can't remember exactly what-
Professor Buzz Scherr:
Yeah, yeah. He testified in front of the grand jury in this case. He's going to be one of their main witnesses. But they need to develop more evidence than just Michael Cohen. They don't want to go to trial with Michael Cohen as their [inaudible 00:16:44].
A. J. Kierstead, Host:
He's not exactly the most reliable narrator.
Professor Buzz Scherr:
Well, I mean, the irony of what Trump is saying, "He's not a reliable narrator," is, why is he not a reliable narrator? Because he got lied trying to protect you.
A. J. Kierstead, Host:
Yeah, exactly.
Professor Buzz Scherr:
Yeah. So I mean, that's kind of ironic. But the other piece of it is people in New York, in Manhattan, get indicted in a heartbeat. Poor schlumps like you and me, if we were to commit a crime in Manhattan, they'd bring a cop in front of the grand jury, and you wouldn't believe how fast you'd get indicted. So in spite of his pissing and moaning publicly about the unfairness of it all, boy, he sure got a very big bite of the due process apple in terms of them being very careful before they indicted him.
That's the advantage of being rich and famous and having lawyers. They're very careful before they indict you. So that's actually a much more logical interpretation of the delay in time. And that stuff, that's a optics issue. It's not going to affect the trial, not going to affect whether these charges stick or not. Now, from now on, it's going to be a bunch of legal motions, and there'll be tons of them. And the most interesting part of this is going to be watching how much the judge takes control of things and keeps moving things along or not.
A. J. Kierstead, Host:
Yeah, especially with both the prosecutor and the defense in the situation, they're going to try and put as many motions and information as they possibly can, and the judge is going to want to push this along very quickly if at all possible.
Professor Buzz Scherr:
So answer this question for me, A.J. Is it to Trump's advantage if this case is being tried in the summer of 2024, assuming he's the Republican nominee? Is it to his advantage his being tried in the summer of 2024 or the fall of 2024? Or is it not to his advantage?
A. J. Kierstead, Host:
I think 538 did an amazing writeup on this that I've referenced on previous other things, and it did a great job. Definitely check that out. It definitely could go either way. If it's closer... I mean, ultimately, if you're talking politically, it's martyrdom. And he can say, "Look at what they're trying to do to me when they lead up to the election." If they do it too early, it's definitely going to hurt him because then all the PR goes away too quickly and it won't matter. And [inaudible 00:19:50].
Professor Buzz Scherr:
The interesting question though, in terms of martyrdom, I think you and I would probably agree that a Trump-Biden rematch, the winner is going to get more of the suburban moderates than the loser. Now, I don't think martyrdom gets any of the suburban moderate conservatives or moderate liberals. That's kind of my political read. Now, I've not made a ton of money as a political prognosticator, but if the election turns out to be about suburban women who voted in larger numbers the first time around for Trump than in the 2020 election, I think... I think the trial, whenever it happens, is going to draw the faithful. But I think the general reaction to that middle that matters is going to be, "We're so sick of this guy." And that doesn't help him, whenever the trial occurs.
A. J. Kierstead, Host:
Yeah. And all the polls show that and that's for sure. And then also add in there's also investigations in other states like Georgia with regards to the vote that happened down there.
Professor Buzz Scherr:
Put aside the documents thing, which is a pretty strong case, but it feels like a more tangential kind of Al Capone tax fraud, the January 6th one, which is a behemoth. But the Georgia ones, boy, that phone call is a killer phone call, and-
A. J. Kierstead, Host:
There's a conservative legal pundit, Josh Hammer, doesn't matter your political opinions, but either way, he outright says that the Georgia thing is the one to really watch.
Professor Buzz Scherr:
I mean, it sure looks like he orchestrated a conspiracy. He had Giuliani doing this, he had Lindsey Graham doing that. He had a bunch of other people developing replacement electors. I mean, none of that looks good whatsoever for him. So yeah, I think the, excuse me, the Georgia situation's a real danger for him. And I wouldn't be surprised if those indictments come down in May or June.
A. J. Kierstead, Host:
Yeah, we'll be definitely following that here on the Legal Impact, because how could we not? It's fascinating from a legal perspective, a former president being indicted, and there will be much more news along this over the next several months, if not the next year and a half.
Professor Buzz Scherr:
Oh, and then it's three years.
A. J. Kierstead, Host:
Oh yeah, three years, definitely. This will get dragged out for all these different suits. We're about out of time, unfortunately. Professor Buzz Scherr, thanks so much for joining me.
Professor Buzz Scherr:
My pleasure, A.J.
A. J. Kierstead, Host:
Thanks for listening to Legal Impact presented by UNH Franklin Pierce School of Law. [inaudible 00:22:58] about the show, please be sure to subscribe and comment on your favorite podcast platform, including Apple Podcasts, Google Podcasts, and Spotify. Get the back episodes of the show and podcast links at law.unh.edu/podcast.
