The Manhattan DA's Case

This is the first week where we’ve had major activity in each of the criminal cases against Donald Trump. If you’re having difficulty keeping up, welcome to what’s on tap for us for the remainder of 2024.

On Thursday, there is a hearing on the conflict of interest allegations against Fulton County DA Fani Willis. We’ll assess that situation after we see the evidence defendant Michael Roman can present—his lawyer has hinted that Willis and co-counsel Nathan Wade have been less than candid with the court about their personal relationship. It’s hard to disentangle the salacious from the relevant at this point. That will be Judge Scott McAfee’s job tomorrow, and we’ll stay on top of it as it happens.

Tonight, I want to refocus our attention on the Manhattan DA’s case. It has garnered less attention over the past months, as we discussed in our “The Week Ahead” edition Sunday night. But this hearing seems to have caught Trump’s attention—there are multiple reports he intends to be in court in person (there are also conflicting reports suggesting he will be in Georgia). That may suggest this case is finally getting real for the former president. Judge Juan Merchan is set to rule on key pre-trial issues, including Trump’s motions designed to put an end to the prosecution. If the Judge denies them, he will finalize the trial schedule, currently set to begin March 25. That would make the New York case the first of the four criminal cases against Trump to go to trial.

You can review our discussion from last April of the charges against Trump in Manhattan. But here it is in brief: The indictment charged Trump with 34 felony counts of business records fraud. Some commentators have dismissed this as a case that is “only” about Trump’s payments of hush money to Stormy Daniels to conceal their sexual liaison. That, of course, ignores the context. In the wake of the release of the Access Hollywood tape, where Trump talked cavalierly about grabbing women by the p*ssy and forcing himself upon unwilling women, he feared the impact if the public learned on the eve of the election that he’d been having sex with a porn star while his wife was home with their baby. This case is about Trump’s effort to unlawfully influence the outcome of the 2016 election. Had Joe Biden or Barack Obama done this, Republicans wouldn’t be dismissing it as an unimportant recordkeeping error, and it isn’t. Far from that, these are serious felony charges.

Alvin Bragg, the Manhattan District Attorney, has characterized the case as “a clear-cut instance of election interference, in which a candidate defrauded the American people to win the White House in 2016.” Bragg has said that “The case — the core of it — is not money for sex,” and that “it’s about conspiring to corrupt a presidential election and then lying in New York business records to cover it up. That’s the heart of the case.”

For each count, the government has to prove beyond a reasonable doubt that Trump had:

• an intent to defraud that involved the intent to commit another crime or to aid or conceal the commission of that other crime

• and that he did one of the following:

  • made or caused a false entry in business records

  • altered, erased, deleted, etc., a correct entry in the records

  • omitted to make a true entry in violation of a legal duty he knew he had

  • prevented a true entry from being made or caused an omission

The ruling we expect Judge Merchan to issue tomorrow centers on a motion Trump filed in September of 2023. This is an omnibus motion that covers all of the issues Trump has raised in an effort to have the case dismissed. You can get a sense from the table of contents that this is the type of strategy where a litigant throws a lot of spaghetti against the wall, hoping some of it will stick. Trump makes a large number of arguments, some that are more serious than others, and all of which the Judge will have to rule on to determine whether the case continues to trial.

The DA’s office filed its response in mid-November, attaching an affidavit and exhibits to refute Trump’s effort to dismiss the case. Trump filed his reply just ahead of Thanksgiving and what’s called a “sur-reply,” a second bite at the apple, at the end of the month, where he claimed the charges did not involve serious misconduct. This is one of his key arguments, which goes to whether the charges are felonies or misdemeanors. He argues that regardless of what the law says—the New York state legislature has established that it’s felonious criminal conduct and the DA’s office routinely charges people who engage in this conduct—he’s the victim of a witch hunt. He goes so far in the sur-reply as to say this is a case about subverting the democratic process. Trump is arguing that there is no “object crime” here—the crime the statute refers to that the defendant is trying to commit/conceal by making the false entry in his business records.

If Trump is correct, these charges would be misdemeanors, not felonies, and Trump’s camp suggests that they are “mere” errors in record keeping. But, because we look at the language of the statute here, we can see that’s not the case. The statute says that when the falsification of the business records is done with the intent to commit or conceal another crime, it’s a felony. In the DA’s statement of facts, he identified federal and state campaign finance violations and federal tax violations as possible other crimes. He is not required to be more specific until later stages in the proceedings.

In practice, the DA’s office brings this kind of charge routinely, and they’ve treated Trump consistently with the way other defendants are treated. In the affidavit that accompanied their response to Trump’s motion, the DA’s office noted that in at least six other recent instances, the office had charged violations of Penal Law § 175.10 based on the intent to commit or conceal a federal crime.

Another key point: none of the presidential immunity litigation going on in the District of Columbia and before the Supreme Court will have any impact on this case even if Trump wins (he won’t.) Trump already tried to remove this case to federal court, but was rejected. The court ruled: "Reimbursing Cohen for advancing hush money to Stephanie Clifford [Stormy Daniels] cannot be considered the performance of a constitutional duty. Falsifying business records to hide such reimbursement, and to transform the reimbursement into a business expense for Trump and income to Cohen, likewise does not relate to a presidential duty." This case is the origin story of Trump’s efforts to cheat during elections, but because the conduct occurred before his election, he can’t take advantage of any of the legal protections he’s argued presidents are entitled to in his other cases.

The Judge has the briefs, and although Trump is likely to be present in court tomorrow, it’s unlikely that we’re going to see a lot of sturm and drang in court. The issues have been fully briefed, and the expectation is that the Judge is prepared to rule. Trump suggested in his briefs that the offenses he is charged with committing are not serious because he is not charged with murder. But this will be a uniquely important moment in American history. We’ll get a sense tomorrow of whether the Judge agrees with the DA’s office that conspiring to corrupt a presidential election and then lying in New York business records to cover it up is a serious matter. And we may, by the end of tomorrow, have the first firm setting for a criminal trial for Donald Trump.

Happy Valentines Day to all who celebrate. It’s on days like this—too much chocolate throughout, a good dinner, time with the people we love—that I’m reminded in a fierce way why all of this matters so much. It’s the ability to live the lives we want to live, enabled by the rights the Constitution makes available to us, and to make sure the people we care about the most will be able to do that too. Here’s to the Republic.

We’re in this together,

Joyce