Legal experts: “Surprise accusation” in Bragg indictment could make it easier to convict Trump

"The state tax violation is a more straightforward and easier case to make," law professor says

By Areeba Shah

Staff Writer

Published April 5, 2023 3:23PM (EDT)

Former President Donald Trump leaves the Manhattan Criminal Court in New York City on April 4, 2023. (ANDREW CABALLERO-REYNOLDS/AFP via Getty Images)
Former President Donald Trump leaves the Manhattan Criminal Court in New York City on April 4, 2023. (ANDREW CABALLERO-REYNOLDS/AFP via Getty Images)

The indictment of Donald Trump unsealed in Manhattan on Tuesday included a new allegation that could aid District Attorney Alvin Bragg's case against the former president.

The indictment featured a "surprise accusation," The New York Times' Charlie Savage noted, laying out prosecutors' claim that Trump falsified tax records in part to deceive tax authorities. 

"Pundits have been speculating that Trump would be charged with lying about the hush money payments to illegally affect an election, and that theory rests on controversial legal issues and could be hard to prove," Rebecca Roiphe, a New York Law School professor and former state prosecutor, told the outlet. "It turns out the indictment also includes a claim that Trump falsified records to commit a state tax crime. That's a much simpler charge that avoids the potential pitfalls."

Bragg in a statement of facts that accompanied the indictment laid out how Trump and other participants allegedly "took steps that mischaracterized, for tax purposes, the true nature of the payments made in furtherance of the scheme." 

While bookkeeping fraud is normally a misdemeanor, it can be elevated to a felony if it was part of an attempt to cover up another crime. 

In this case, Bragg alleges that Trump used his business records to conceal hush-money payments, which amounts to conspiracy, tax fraud and violations of state campaign finance laws.

"Under New York State law, it is a felony to falsify business records with intent to defraud and an intent to conceal another crime," Bragg said at a press conference after Trump's arraignment. "That is exactly what this case is about."

Now, the Manhattan DA must convince the jury that all of the criminal record-keeping was done in order to cover up some larger crime. When someone intentionally makes a fraudulent entry in business records in order to conceal another crime, that is a Class E felony. 

"Lying to affect an election would be extraordinarily difficult to prove," John Kaley, a former assistant U.S. attorney from the Southern District of New York, told Salon. "Every politician and every statement would come under scrutiny. It would become a war among the political parties with few survivors. False documents are much easier. It's either true or false."

Catherine Ross, a constitutional law professor at George Washington University, agreed and pointed out that Trump's business even falsely noted the payments as a legal expense on its taxes even though Trump later wrote personal checks.

"The state tax violation is a more straightforward and easier case to make," Ross said. "It is implied in the statement of facts – particularly re: the payments to Cohen reflecting a joint intent that he falsely report the reimbursement as income and providing him with funds to cover that cost. It should not matter that Cohen paid money in. He filed a false tax return."

The charges that the former president is facing are connected to his $130,000 hush money payment made to adult film star Stormy Daniels.

Former Trump attorney Michael Cohen pleaded guilty to multiple federal charges in 2018, including campaign finance violations related to the hush money payment — which he said Trump reimbursed him for. 

New York prosecutors alleged that Trump illegally falsely characterized the reimbursements related to the Daniels hush money payment as being legal services performed in 2017, leading to 34 false entries in New York business records. 

Trump pleaded not guilty to the charges Tuesday and has repeatedly denied any wrongdoing. 

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The statement of facts also shed light on how Trump paid Cohen more than his lawyer had paid Daniels in order to compensate him for the taxes he would owe.

"He could not simply say that the payments were a reimbursement for Mr. Cohen's payments to Stormy Daniels," Bragg said. "To do so, to make that true statement, would have been to admit a crime. So instead, Mr. Trump said that he was paying Mr. Cohen for fictitious legal services in 2017 to cover up an actual crime committed the prior year."

Prosecutor Christopher Conroy on Tuesday accused Trump of causing his company to create a series of false business records, adding that he "even mischaracterized for tax purposes the true nature of the payment," The New York Times reported

"The reference to false tax filings," New York University Law Professor Ryan Goodman told The Times, "may save the case from legal challenges that may arise if the felony charges are predicated only on federal and state election laws."

By Areeba Shah

Areeba Shah is a staff writer at Salon covering news and politics. Previously, she was a research associate at Citizens for Responsibility and Ethics in Washington and a reporting fellow for the Pulitzer Center, where she covered how COVID-19 impacted migrant farmworkers in the Midwest.

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Alvin Bragg Donald Trump Furthering Michael Cohen Politics Stormy Daniels