In the week since Donald Trump was arraigned on 34 felony charges, debate about the strength of the case against him has only intensified.
Charlie Savage, a Washington correspondent at The Times, has closely studied the case and explains which side he stands on.
Guest: Charlie Savage, a Washington correspondent for The New York Times.
Background reading:
- Trump could turn to a familiar legal strategy: attack and delay.
- Analysis: A surprise accusation bolsters a risky case against Trump.
For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday.
This is an unofficial transcript meant for reference. Accuracy is not guaranteed.
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from the new york times. I'm like a bar of this is a daily. This case has problems from a kick out the longer I look at it, but the other problems. I sit in the
since Donald trump was arraigned on thirty four felony charges. I think it's strong, prosecutorial tradecraft. This is a well written indictment. The debate
about whether the case against him is either a week for strong has only intensified
I meant is insufficient on its face. It was just a bunch of papers,
worse staple together. These facts are not that squishy. To me, this seems like a straightforward business records fraud case. I think this is even weaker than I feared. It would be if God tapes you ve got records, you ve got a recipe for a very strong kings. This is crap that a free law student shooting up
front of a damn drug. Today, my colleague, Charlie savage, has been
closely studying the case to understand
which side is right,
it's Wednesday April, twelfth.
early when Donald trump was indicted. Last week we were very eager to finally
look inside this case that the manhattan
attorney alvin brag has been building, because we always had a pretty good sense that he was going after trump for false
buying business records that was kind of the base of the case
it is a set of misdemeanours, but we knew that brag would need to prove a second crime in order to make those charges turn into felonies. And then the indictment comes down
we don't get an answer to what that second crime is going to be. We shouldn't have an answer and that's
why it feels like their such a lively debate playing
about whether this case is strong or whether its weak and that's why
You come and because you are a very smart about legal questions and prosecutions. So with all that in mind, where shall we start well, let's start by breaking this down as you'd just mentioned, normally
keeping fraud falsifying business records under a new york. Penal law is a misdemeanor to make it into a felony that crime had to be committed with the intention of concealing or committing some
second crime, and so the question
hovering over all this for weeks, leading up to the ceiling in this indictment has been. What is that? Second crime? What is Alvin brags theory of the case to turn a trivial misdemeanor case to a serious felony case he can,
bring season and solve the unveiling of de indictment and the statement of facts when tromp was arraigned was our first opportunity to really see what is his theory of the.
and there was new insight in there and some things that had not been talked about before and others
in time it was maddening. It was infuriating because he still was not clear about it.
There is nowhere in here where he says this becomes a felony, because x rays becomes a felony becomes. Why so we
to infer what he's getting at both from the statement of facts that accompanied the indictment in
statements in the courtroom and his press conference. But before we infer too much
What should we make of the fact, Charlie
attorney has choose,
not to tell us what he thinks,
second crime is, or which potential second crime he's likely to pursue well
He was asked. Why don't you just tell us at his press conference afterwards, he said water.
doesn't require me to this stage, so there's that it is possible
there is some strategic advantage to this. It's possible that this is some kind of trial, balloon situation,
he's throwing out concepts and wants to see because there
some novelties surrounding this case, what do block professors in
prosecutors and talking heads on tv say about it and there's some kind of high minding. They will help
refine his own theory
where what appears to be actually maybe multiple alternate theories fascinating put forward. But that's just my speculation. I I feel like he auto ought to have told us. I would have liked to have known chance to do it.
for us district at her from me, really that is now its importance and yelling. My curiosity! Yes, yes, yes! So in the meantime that leaves us
still trying to figure out what the second crime will be
I would mention that the indictment did reveal
a few new insights into what brag is up to. So let's talk about what we think
stone everything we now know about what this
crime is likely to be and how
strong or how weak that second crime might end up being, legally speaking,
So in general it looks like there's going to be too broad
categories of crime that he'll be pointing to or gesturing
and as a preliminary matter, he doesn't have to prove that the second crime occurred. He only has to prove that trump intended for a second crime to be concealed or advanced when he caused the trump organization's business records to be
I urgently entered, and it looks like there's two broad categories of things: he's gonna gesture at one is campaign financed crime.
and the other is intended false statements to tax authorities. So, let's start turley with campaign finance
how easy or how hard do we think it will be for brag to make that the second crime
back into that we need to quickly
or what we're talking about here. Events of this takes us back to the twenty sixteen campaign, the final months a porn star,
Stormy Daniels has come to the trump world and said I'm gonna talk about this extramarital affair. Your candidate had with me shortly after his current wife gave birth to his son
and Michael coin, trumps fixer and lawyer sends her
a hundred and thirty thousand dollars october, twenty sixteen to keep quiet
through the end of the election. This raises a question: was that a campaign finance expenditure intended to affect the election? Keep this information from voters
was that a personal life expenditure into this information from millennia trumpet from baron from his son, inherently murky in twenty seventeen crumple, reimburses Michael Cohen, for that money
So if- and this is the thing Alhambra would need to prove as part of all this, if he can commence a jury that that was a campaign expenditure, then those fine,
he'll transactions were regulated or should have.
been regulated by campaign, fannys law and at me,
that Michael Cohen made
in unlawfully large contribution to the two thousand and sixteen trump campaign. Individuals can't give one hundred and thirty thousand dollars to someone else's campaign right and in two thousand and seventeen
in trump reimburses him. He should have reported that publicly on his effie see campaign spending filings, which he did not so a lot of that turns on was that in fact,
a campaign expenditure or personal life one an inherently ambiguous question:
Let's talk about, why that's mpeg, assuming if a
hush money payment is made weeks
or a presidential election
it seems intuitive. If I'm
or juror that it's connected to
that election mean the prospect of having
they're, like that, come out right before election seems
It will be very, very embarrassing and exactly the reason to pay someone off. So what makes that so difficult for so the strong part about it is the timing. Apparently Daniels had tried to get money, but
for. I was rebuffed in so suddenly now in october, that were a couple weeks from the election and there's an uproar
over the famous access hollywood tape, rights, trump brag about groping women questions, whether of Angelica christians,
some particular going to abandon him. Maybe this porn stars accusation of an
chernobyl affair would just destroy their campaign in
when she gets paid when before she did not. That would be what the prosecution was ended. The jury. This was obviously about the campaign, but the defence team can say no
The campaign this was gonna, get more intention, but what he really wanted to do was avoid personal embarrassment. He didn't want his wife to find out. In one has said,
to find out. He says it's not true anyway, but it was this gross and he just wanted it go away, and
Is there proof beyond reasonable doubt that the motivation was a versus b, got it looking at it from the outside. It could be both right. It could be both at the same time bright, and so there is something messy about campaign era, payments to a mistress that is not as black and white as
most of what we like to see in the courtroom right, because you're saying, in order for this to become the sex
crime that makes this all felony the deer
They have to prove its related to the campaign, but I'm all
hearing. You say if I'm reading, between the lines that unless there is
really hard evidence and making this up, but a recording. Where trump says to Michael Cohen, make this go away.
Wait about evangelical voters in the
action happening in two weeks. Then it's gonna be here:
to get inside his head and know whether the president was
were concerned about the personal dimension of this
or more concerned about the political side of it. If campaign finance crimes are the second crime, the turns bookkeeping fraud into a felony
and yet still need to show that in that's why Daniels
earlier efforts to get money and being rebuffed for her testimony would be important to that. The tests.
the money of Michael Cohen, in what is conversations are with
from surrounding that payment, and then the reimbursements will be important to that. Was this
information about elections, or is this a conversation about a wife thing
that would show trumps motivation. That's the sword of evidence that a prosecutor would need to put forward to show
was done because of an election and not because of a personal life are not solely because of personal life. Charlie. I will call that Michael Cohen was convicted of
his role in this same hush, money, payment scheme, we're talking about and that campaign finance
Was one of the reasons why and I wonder if we should interpret that as
increasing the odds that the district attorney is likely to get trump
on a similar campaign. Financed charge
It would make this all a felony to people
both evolved in the same scheme, ones already
the jail over this
since the day.
see that, as
strong evidence that is likely to work against trump as well. If you talk to campaign financed law experts who are sceptical of this theory, the brag seems to be playing with. They are also sceptical of that conviction.
Of cohen, and the reason for that is that prosecutors were
being a variety of charges against cohen, most of which had nothing to do with. This was other sorts of financial crimes and he was pleading guilty. He was not going to trial. He was not fighting. Those charged
so they throw in this campaign finance one and he agrees to plead guilty to it as part of this negotiated package in so that
It was never really tested in
have you never had someone standing up to a jury and saying no? No! No! This was about his wife. This was about his kid. He didn't want them to hear about it. Doesn't that
reasonable doubt to you, mister and missus jurors, and so it superficially looks like it's been established, but maybe not that's their point of view on that
charge right has been truly tested in an adversarial prosecution defence environment. Exactly ok
so we should understand the campaign finance second crime scenario as one that on paper looks like me
bees it approved as olaf circumstantial evidence, but in reality, in the court room it seems I could actually
a bit of a challenge. That's right and remember. There was a very famous case, it's kind of like this. There was brought against John Edwards former democratic senator in two thousand eight presidential aspirant,
evolving money paid to a woman that he had not just had an affair with, but who had had his child right and whether that was a campaign, finance crime to sorta, pay her living expenses and keep her quiet while he was still seeking the democratic nomination for president in two thousand and eight, and when that,
they went to trial, he was acquitted on one charge and the jury hung on the retina prosecutors decided not to try again and so that you know that case was a little different in some details. Payments to her kept happening after he had withdrawn from the race, and that was one reason. It was even work here,
but it does illustrate this is not an easy charge to bring campaign. Finest charges related to
money to a mistress? It's just a story
he situation bright and there's another wrinkle here and what is it
and that has to do with federal law and state law. Remember this is a state criminal case. This is
the prosecutor charging violations of a state law against bookkeeping fraud, but federal law rate generally is what regulates presidential elections right and so to the extent he's looking towards campaign finance as that second crime. That turns this.
state misdemeanor into a state felony, is he going to invoke a federal crime? A federal law can state prosecutor do that? Was thither written
to encompass laws that are not felonies in new york, but her felonies and some other system of government is an untasted issue. So these are things that have given people anxiety about the strength of his case about its novelty about the risk of theories. That brag seems to be relying
as he puts forward. But there was new information that came out last week suggests
The brag might be bolstering is case with another potentially
stronger theory of the second crime,
The
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first category in this basket of potential second crimes campaign finance clearly is precarious. So, let's
turn to the second one. What is it? The second category of potential crime that could to elevate bookkeeping, fried from a misdemeanor to a felony, has nothing to do with came here,
finance. It has to do with taxes and lying to tax authorities. This was not something that had received
a lot of attention leading up to the unfeeling of the arrangement
the day of the unfeeling. Last tuesday he had a sort of do a dumpster dive through these statement of facts,
the comments made on the side in the press conference and in the courtroom to see there
the seeds or being planted to say that even
you don't buy this campaign. Finance thing. Dear jury, there's a whole other category of potential crime. They could still get you across the line, so to recall
The elements of this not only did Michael Cohen wireless hundred thirty thousand
the stormy daniels in october of twenty sixteen,
but he was reimbursed by the trump organization over the course of two thousand and seventeen and in it's records. The trump organization said that was for legal services that he was performing in two thousand and seventeen
pursuant to a retainer- and we know from the case that there was no retainer arousal and there was no, it was ally and it was not for seat legal services performed in twenty seventeen. It was to reimburse him for this payment he had made out of his own pocket and twenty sixteen, and on top of that, it wasn't just
bursting him. A hundred thirty thousand dollars. It was real.
Using him, basically twice that, as he was going to it appears, report
stream of money or
giving every month into his bank account from the trump organization as if it were income for some pr service that he had something he had earned in two thousand and seventeen, which means he was going to have to pay tax.
says on it, and so according to prosecutors, to make him holes already
up with honour and thirty thousand hours. At the end of all this, there
pay him more
essentially laundering the stream of money. So it looks like one thing. Even though, was another thing which is basically tat
because what you're describing is them misrepresentation of payments as taxable
income and so suddenly, the second crime that we're now contemplating is lying to the government lying to the local tax authority new york.
What could be both federal and state heart tax authorities right, there's go! There's you file taxes to both
and we all know it again. What brags
theory and evidence is here. We don't know yes, the trump organization issued
ten ninety, nine nine employment compensation form for payments to call in it
seventeen and, if so, what it said, but is also worth
about one more complexity. This isn't complex enough. We need more complexity about this because you said actually two different crimes. Just now, like you said, tax fraud and then
Another point you said line to tax authorities: these aren't the same thing interesting tat,
Fraud is paying less taxes, usually than we actually o, whereas line to tax authorities is a subset of the crime of giving false information to the government and when it comes to tax fraud. This is a kind of funny situation. If you think about
he's not under reporting is incomes. Lead has a smaller tax bill and therefore cheating
the government of new york out of some of the tax revenue, to which widgets rightfully entitled he's over reporting as income
so in new york is ending up with more tax income than it otherwise would
If everything was on the up and up but separate
whatever the weirdness of that it is a crime in new york law to submit false information to the state government right
so I have to say this looks like it would be an easy and definitely easier. Second crime than campaign finance, too.
stab wish for Alvin bragged dossier, based on the fact that you know when you report things to a tax authorities, it creates a pretty significant,
paper trail. So am I right in thinking that this would be
relatively easy thing to pursue
where is it actually secretly hard like everything else? In this case, why would certainly say easier easier in a while seems to sidestep some of the complex issues with it
I'm paying finance route? We still don't know what evidence brag has we don't actually know if there's a paper trail, we
No, how he might try to convince a jury. The tromp was intending at the time the bookkeeping fraud to deceive tax authorities right, but remember that Alan brag doesn't apparently have to do is put forward. One theory o the climb was this: oh, the crime was that, as it was explained to me by former assistant district attorney's conversion in new york law, he can give alternate theories to the jury
simultaneously. Maybe it was this. Maybe it was that maybe was federal campaign finance, maybe was state campaign finance. Maybe it was in intentions
deceive federal or state tax authorities, and that he'll probably say it's all of the above all the above redundancy get us across the finnish.
to this being felony rather than misdemeanor, and as long as the jury de jure roars are individually convinced by any one of those they can vote.
That as a felony, that's really interesting, eurasian the possibility that of the twelve jurors
give us up. Your five might think that it was a campaign, finance violation that gets this all to be a felony and seven might think it was a tax issue
as long as they think that this is a felony and they vote that way. That's why they don't all in theory, have to even agree
I think you're putting your finger Michael on something that is very interesting and complicated about this. If it's right, the brag is moving towards putting forward an array of alternative theories,
and saying he believes all them, but the joyous needs to believe one again
this maddening situation, where he hasn't said what he thinks the second crime is or what crimes plural were. It was said that seems to be where he's heading so we're trying to infer from the outside when he has to turn over a bill. Particulars assuming trump's legal defence team ass for one in discovery, he'll have to
say this more explicitly and then at that point we should understand that better.
certainly raises the possibility that different jurors might have different theories of the case in their own heads
try. It very much feels to me like this concept of throwing multiple
second crime, felony charges against the wall and seeing what might stick tat idea has invited a lot of the debate that we
watch played out over the past week or so about the strength of this case. We hear many people
saying this case feels flimsy or we,
There are people on the other side who disagree and say it stronger, but
right to understand that alvin
eggs decision, not to articulate one
second crime, that he wants to pursue clearly as
being a big contributor to this debate about what
This is fundamentally just not that stronger case, Michael, I think that's right and yet, at the same time, there's a chicken and egg issue here which,
is if he had a sing, your knockout second crime. He wouldn't need to throw things against the wall. Multiple things use the wall to see. What's takes the most natural second crime
Here is a campaign find his crime that he knows is going to attract accusations of
poverty or problematic, legally untested overtones and that
leading him down this path of there's this there's this and there's this there's so many things here. Folks got it louis natural case,
Is potentially week so he wants a safety net. He wants kind of illegal legal parachute, which is how you,
from just came in financing.
You ve been financed, plus potentially, taxes which sounds a little bit like
something of a risky strategy when you're taking on a former president of the united states. That kind of all the above spaghetti approach like one way of have
added another is its belt and suspenders right. If one fails the others their vice versa, right,
which isn't necessarily a bad thing socially. What happens if album brag can't prove one of these second crimes and he ends up being left with based.
We a bunch of Mr Miller's, because we talk about these thirty four charges is felony charges, but they're not fail
please until they're made into felonies by the second crime. So if you don't get the second crime, what does that look like? It would be worse, Michael from Alvin bragg than being left with a bunch of misdemeanors, because he did not charge trump with misdemeanor bookkeeping fraud, which is code one. Seventy five point, one: five in the new york penal code. He charged him with a different section of the code which is felony falsifying business records, and so, if he cannot prove out that there was an intention to mask or commit a second crime.
It's just not guilty. There's the does not revert to misdemeanours because he never got charged under misdemeanor law in the first place, so the thing
crime is not nice to have its not a little
so it is absolutely essential. You're saying it's a whole bogging, that's right! Without it, the jury would have to acquit donald trump it'll, be
complete collapse for the district attorney and a huge vindication for trump, and that would be why
bull, our nervous about of all the investigations against trump. This one going first
utterly. Thank you,
for on us, we really appreciate it.
pleasure.
hmm.
On tuesday district attorney, Elvin brag filed
federal lawsuit, designed to defend his case again,
one of its fiercest critics, republican congressmen, Jim Jordan, of a high on the lawsuit seeks to block jordan.
His republican allies in congress from tat
to obtain confidential materials compiled during
rags investigation of donald trump in the lawsuit bright described that effort as oak
brazen, an unconstitutional attack against the office of the district attorney and an effort to interfere
his indictment against tribe
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here's? What else you need teller day, this awful act of violence at old national yesterday,
has taken another life late. Yes,
day we learned that Deanna akard pass do is fifty seven years old.
As the death toll from Monday's mass shooting in Louisville Kentucky rose to five police
that the suspected gunman used an eight hour fifteen rifle that he had legally purchased just
stays before the attack. During a new conference, local elected officials said that under current gun loss they simply lacked the tools they need it to stop such massacres. Our community is hurting, but we need policies in place that will keep this from here.
again, this investigation had in a highly anticipated report the bible
mistress, has proposed away to confront the show
king supply of water in the colorado river. By cutting this
In percentage of water allotted to three different states- california,
arizona and nevada. Under the proposal, the amount
water distributed to each state would be reduced by as much as twenty five percent a scenario that would fall hardest on California.
the imposition of such a proposal by the federal government would be unprecedented, but so far efforts by the states
to reach? An agreement on their own have failed
final decision about how to move forward is expected later this year to these edison
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Transcript generated on 2023-04-13.