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THURSDAY, MAY 16, 2024

PERSPECTIVE

Trump's criminal case as the prosecu�on's favorite trick

A
s you know, at the beginning Let us now understand what the all persons accused of falsifying business resorted to its favorite trick, mentioned in
of 2018, the Wall Street criminal law means by falsifying business records were always charged with a the headline of this article. It consists of
Journal reported that in records. The definition of falsification collateral offense. making a deal with Cohen, giving him a
October 2016, shortly before itself is set out in PEN § 175.5. Therefore, the prosecution needs verdict that cannot be challenged, and
the US presidential election, Michael As stated there, "a person is guilty of another collateral offense and they find then presenting both the verdict and
Cohen, the lawyer for then-presidential falsifying business records...if, with intent one with Michael Cohen's assistance. Cohen's testimony as indisputable
candidate Donald Trump, arranged a to defraud, he makes or causes to be made Let's see how they did it and whether such evidence of Trump's crimes. The benefit
$130,000 payment to pornographic film a false entry in the business records of a a witness can be trusted. of this scheme is that Cohen can no longer
actress Stormy Daniels to prevent her company; alters, erases, obliterates, Cohen's troubles began in April 2018, change his testimony or retract it because
from disclosing an affair she allegedly had deletes, removes or destroys a true entry when he came under federal investigation it is enshrined in his conviction.
with Trump in a hotel at Lake Tahoe in in the business records of a company; fails and the FBI raided his office, his home, Why would the prosecution want such a
July 2006. to make a true entry in the business and even the hotel where he was staying. scheme? The fact is that they just don't
In March 2024, seven and a half years records of a company in contravention of In August 2018, Cohen pleaded guilty to have any evidence against Trump, and
after this alleged encounter, Trump was a duty to do so which he knows to be eight criminal charges. they can't put any pressure on him.
indicted by the New York District imposed by law or by the nature of his Firstly, he evaded taxes. There were five Without Cohen's conviction, it was legally
Attorney's Office for a felony with position; prevents the making of a true such offenses, as a result of which he did impossible to prosecute Trump for
aggravating circumstances. It is claimed entry in the business records of a not pay more than 1.4 million dollars to falsifying business records of the first
that he orchestrated a scheme with other company or causes it to be omitted." the state. Each of these offenses carries a degree.
participants, who helped him look for This is an exhaustive list. We see that it maximum of five years in prison, which is The principle behind this trick is
stories that could negatively impact the boils down to the fact that there must be a a total of 25 years. beautifully called "collateral estoppel."
election and buy those stories to keep discrepancy between the accounting That's not all—Cohen defrauded a This principle prevents the relitigation of
them out of the public eye—one of which records and the actual state of affairs. For federal bank to obtain a $500,000 loan (it issues that have already been decided in
was his alleged affair at Lake Tahoe. example, a company pays more but was from this account and with these an earlier case involving the same parties
According to the charges Trump allegedly records a lower amount, or vice versa, etc. funds that he recklessly paid $130,000 to or their privies. Although more commonly
paid Stormy Daniels $130,000 for her This is quite logical. Stormy Daniels). Knowingly providing applied in civil law, it can sometimes be
silence with the help of lawyer Michael In fact, there is none of the above in false information to a banking institution applied in criminal cases.
Cohen—another participant in the Trump's case. We can see that his is punishable by up to 30 years in prison. However, there is another, more
scheme. The prosecution alleged that after business records exactly match the cash Thus, Cohen's crimes, unrelated in any important principle in American criminal
the election, Trump reimbursed Cohen for flow and nothing else—Cohen invoiced way to the Trump case, were potentially law, which is mentioned in the Fifth
the illegal payment through a series of $35,000 in January 2017—Trump paid punishable by 55 years in prison. Amendment—every defendant is
monthly checks. Each check was $35,000 and reflected that precisely in Understandably, having found such a guaranteed due process and the
disguised as a payment for legal services his business records. Of course, treasure trove, the DA's office made him presumption of innocence in criminal
under a sham retainer agreement. prosecutors will argue that the purpose an offer he couldn't refuse. proceedings i.e. any facts and evidence
As a result, Trump allegedly "repeatedly of the payment is wrong (to avoid an As a result, in August 2018, he reached established in one criminal case are
and fraudulently falsified New York indictment, it would have to say an agreement with prosecutors that he generally not relevant to another case
business records to conceal criminal something like "reimbursement of would receive no more than 63 months in involving a different defendant—each
conduct from the voting public during the expenses for porn star agreement") but prison in exchange for pleading guilty to criminal case should be considered on its
if serious, there seems to be no offense
2016 presidential election" (PEN § all charges and not appealing the own merits.
according to the above list. In addition,
175.10.) sentence. In addition to the main charges Thus, the direct use of Cohen's
a retainer agreement can be concluded
What seems odd about this accusation? described above, he pleaded guilty to conviction in Trump's criminal case would
verbally, it does not contain the
The first is the prosecution's disregard "committing two campaign finance crimes violate Donald Trump's constitutional
purpose of payment, i.e. the lawyer
for the statute of limitations on the crime on the eve of the 2016 presidential rights to due process and the presumption
under such agreement can provide any
committed. This is clearly illustrated by legal services at the request of the client. election with the intent to influence the of innocence. It is impossible to lawfully
the example of Karen McDougall, whom So why does the prosecution consider outcome of that election by making prove Trump's guilt of second-degree
the prosecution alleges that Trump also that Trump's reimbursement to Cohen for payments to silence two women... with falsification of business records without
paid $125,000 for her silence in October his costs in the Daniels deal even took and at the direction of Donald Trump." fully charging him with complicity in
2016. Although this episode is mentioned place? Cohen paid Stormy Daniels the Finally, Cohen was sentenced to 36 Cohen's actions. Therefore, if the court
in the indictment, Trump is not charged sum of $130.000 and Trump transferred months in prison, of which he served only does not build its sentence on the Cohen
with it. The fact is that the statute of $420,000 to him in twelve monthly 16 months. case, Donald Trump can only and only be
limitations for aggravated falsification of payments of $35,000 each as an upfront Well, what can be said? It seems quite charged with falsification of business
business records in New York is 5 years, payment for legal fees. Why should we obvious that Cohen's plea to election records of the second degree, which is a
so the prosecution period for the Karen believe the accusation that some of this interference is involuntary and made Class A misdemeanor and has a statute of
McDougall payment ends in October money is reimbursement? Probably under pressure. Of course, you can try to limitations of two years—but the deadline
2021. because that's what Michael Cohen is convince the gullible that the publication for bringing such a charge has already
So why was there an indictment for the claiming. However, we will see below of a Lake Tahoe encounter could have passed.
payment to Stormy Daniels? The fact is whether we should trust his testimony. fundamentally affected the outcome of the If the court accepts all of the
that under New York State law (CPL § The third interesting aspect of this election, but it seems improbable. Many prosecutors' shaky and far-fetched
30.10) if a person holds an official indictment is that Trump has been charged factors influence elections—for example, arguments in this case and applies
position, prosecution for any offense with a Class E felony (PEN § 175.10), the physical attractiveness of a candidate. collateral estoppel, this verdict should be
relating to misconduct in public office by which requires not only the actual Should we accuse a candidate, for immediately dismissed and the case
a public servant, including corruption falsification of business records but also example, of having plastic surgery and should be remanded for a new trial
offenses, may be brought within five years "an intent to defraud includes an intent to concealing this fact from the voters? I because Trump's defense rights would be
after the termination of such service. VICTOR S. DOROKHIN,
don't think so. PhD, is a legal dramatically violated.
commit another crime or to aid or conceal expert, attorney, lecturer and the
Thus, the prosecution believes that since the commission thereof." From an economic point of author
view, it is
Trump left office in 2021, he can be of the book "Law, Morality, and
much more likely that Daniels herself VICTOR S. DOROKHIN, PhD, is a legal
So, to put it simply, a second offense is Economics". He can be reached at expert, attorney, lecturer and the author
indicted up to 2026. required to be charged under PEN § may have held this story up until the
[email protected] of the book "Law, Morality, and
But I suppose it's impossible to agree 175.10. But Donald Trump has not been election to get a better price for it.
with this approach because Trump wasn't Unfortunately, her testimony also cannot Economics". He can be reached at
charged with such a collateral offense. He
acting as a public official and and did not be trusted as she has repeatedly stated that [email protected]
was also not charged with concealing any
use his official position when he paid this crime. But this is very unusual because it she hates Donald Trump (apparently
money to Cohen as an alleged is hard to find similar examples in New because he did not invite her on his show
reimbursement for the Stormy Daniels York State jurisprudence where a person "Apprentice").
payment—it was a private settlement has been charged with aggravated Going back to Cohen, we can see
agreed before the election, let alone the falsification of business records without clearly that he is a persistent tax offender,
inauguration, even though all payments being charged with a second, related a crook who defrauds federal banks with
were made after Trump took office. Thus, crime. Look at such well-known cases as ease.
the prosecution is wilfully ignoring the People v. Taveras or People v. Bloomfield He also, like Daniels, hates Trump from
statute of limitations by framing Trump's and it will be clear that such a charge the bottom of his heart because Trump
deal as that of a person holding public cannot be brought simply because of the destroyed his American dream by not
office. peculiarities of legal technique: no second offering him a job in a presidential office
In fact, oddly enough, this case is offense—no charge. For example, in ("Jesus Christ, can you fucking believe
reminiscent of the recent Trump civil People v. Taveras, it was a prior sexual I'm not going to Washington after
case. The general trend in these cases is crime; in People v. Bloomfield, it was everything I did for that fucking guy?"
for prosecutors to interfere in the conspiracy to commit fraud; in People v. Cohen said on the call with Keith
relationships of private parties under the Kisina, it was insurance fraud; in People Davidson). So, Cohen has absolutely no
pretext of public interest (see my article v. Myles, it was theft of electrical energy; credibility—he's a biased witness. VICTOR S. DOROKHIN
on this, "Socialism” by Judge Arthur and so on. Significantly, in all these cases, Because of the bias and weakness of [email protected]
Engoron" in LA Daily Journal). key witnesses, the prosecution has