Was Donald J. Trump really found guilty by a New York State, Manhattan Jury, of 34 Counts of falsification of business records in the first degree?

While we saw a New York court room; a judge; a jury; a prosecution; a defense; and a verdict… We did not see a troop of experts who witnessed the facts of the case being presented, consider Trump to be truly “convicted”, at least until the appeals process has run it’s course.

Can any of us say, “convicted felon” without risk of being sued? Yes. Is he technically convicted? Yes.

But lets take a closer look.

These are the New York State statutes Trump was accused of violating, by Alvin Brag and Michael Colangelo:

NYS Penal Code § 175.10 Falsifying business records in the first degree. 

[1]

A person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree

[2]

(NYS PC §175.05) , and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.

Falsifying business records in the first degree is a class E felony.

[3]

A person is guilty of violating NYS Penal Code § 175.05 when:

1. Makes or causes a false entry in the business records of an enterprise; or

2. Alters, erases, obliterates, deletes, removes or destroys a true entry in the business records of an enterprise; or

3. Omits to make a true entry in the business records of an enterprise in violation of a duty to do so which he knows to be imposed upon him by law or by the nature of his position; or

4. Prevents the making of a true entry or causes the omission thereof in the business records of an enterprise.

Falsifying business records in the second degree is a class A misdemeanor.

Here is a quote from Donald J. Trump’s Indictment: 

The defendant, in the County of New York and elsewhere, on or about February 14, 2017, with intent to defraud and intent to commit another crime and aid and conceal the commission thereof, made and caused a false entry in the business records of an enterprise, to wit, an invoice from Michael Cohen dated February 14, 2017, marked as a record of the Donald J. Trump Revocable Trust, and kept and maintained by the Trump Organization. (Quoted from Count 1, all subsequent counts basically are the same allegation, with different specific records.)

There are 33 variations of count one of the indictment.

The essential elements of §175.05, are as follows:

• Makes an entry into a business record.
• That entry is false.
• The false entry was done with the intent to “defraud”.

What is the legal definition of “defraud”?

To defraud broadly means trick or deceive someone at the expense of another for personal gain. In the legal sense, to defraud is to commit fraud that leads to civil or criminal liability. In civil litigation, allegations of fraud might be based on a misrepresentation of fact that was either intentional or negligent.

[5]

Donald J. Trump was convicted of 34 counts of making a false entry into a business record with the intent to trick or deceive someone, at the expense of another, for personal gain; to cover up or conceal another crime.

What is the “other crime”?

Nowhere in the indictment, or during the trial is the “other crime” accused as convicted. Donald Trump was NEVER charged with “another crime”. The DA, during the entire trial, NEVER pointed to that other crime. It was insinuated that the “other crime” was a federal campaign finance law, but that crime was never referred to, specifically, with a trial date or conviction date. There was NO underlying crime. Only the insinuation that there was an underlying crime.

Also, the specific “falsified records” without a victim who was defrauded, means that the chief element of the crime wasn’t there, either.

So if I put “legal fees” on a check what was really meant to pay for my kid’s graduation, the DA would have to prove that I used that classification in a business and that classification was used to defraud someone. For example the IRS or a Trustee. Maybe the “legal fees” were tax deductible but “kids graduation” was not. THAT would have a victim. Or, if I said “legal fees” because a Trustee would be obligated by a contract, to pay me back for that expense, but my “kids graduation” was not something the trust would have to repay me for. That, would have a victim.

In Donald Trump’s case, there was NO victim. No victim in the indictment. No victim during the trial.

On top of that, the “entry” has to be “knowingly false”. It can’t be a mistake, or based on perception. “Legal fees” for paying someone to keep something to themselves can be construed as a legal fee, when no other definition is available. It was a legal matter, and money was paid to satisfy that legal matter.

So while Donald Trump was convicted on these 34 counts; according to the best legal minds in the country, he should not have.

Also, during the trial, the prosecutor never alleged the underlying frauds mentioned in the indictment, which would satisfy the second degree business record falsification. Every time the prosecutor detailed a document that was falsified, it never said, how it was falsified. The indictment just said is was false. Never what would make the documents, NOT false.

Why? Because every single reason for the allegation of falsehood, was open to interpretation. Trump said “legal fees” but the prosecutor said, “NDA payment”. There is no “Blacks Law Dictionary” entry saying “legal fees” can ONLY be this or that.

Trump was convicted of nothing because the judge allowed nothing to be a crime.

Footnotes