Analysis: What could kill the 'zombie' case against Trump again?
The precise legal hook prosecutors used to elevate falsifying business records to felony charges is nowhere in the indictment itself.
…the legal underpinning of the case could come back to haunt the DA's office.
In court Tuesday, prosecutor Chris Conroy offered a succinct theory of the case: “The defendant, Donald J. Trump, falsified New York business records in order to conceal an illegal conspiracy to undermine the integrity of the 2016 presidential election and other violations of Election Laws.”
But does any of it amount to an actual crime, especially one the district attorney’s office can prove beyond a reasonable doubt?
The big question on the minds of many was what legal hook prosecutors would use to elevate what would normally be considered misdemeanors to felonies. A firm answer to that important question, however, is found nowhere in the indictment.
What may seem like a head-scratching move to keep the actual indictment silent about the hooks to “bump up” misdemeanors to felonies wasn’t surprising to some lawyers familiar with the DA’s office — perhaps it was even intentional, says Daniel Horwitz, a former assistant district attorney in Manhattan.
“It was ingenious on their part,” Horwitz said, because this way prosecutors haven’t actually committed to a precise theory of liability, leaving their options open until the case reaches the jury.
[It may have been strategic but it was not ingenious. Prosecutors are frequently as vague as the law allows them to be. It’s sophomoric strategy. All Trump’s lawyers have to do is move for a statement of particulars to smoke them out.]
“Under New York law, a prosecutor can change theories," he said. "This gives them that flexibility.”
[They can change theories even when they’re originally precise. It’s a “strategy” that leads to unnecessary delay. If you have a “slam dunk” another strategy is to shock & awe the defense with the spine-chilling details. When you file 34 counts which are really 11 or so, I as a defense attorney, saw that as an attempt to intimidate me with quantity because quality was lacking. It never had the desired effect and since the prosecutors chose to play silly I was encouraged to play.]
The prosecution’s argument in part seems to be that the American public was defrauded by Trump’s efforts to bury negative stories before the election. But the public wasn’t entitled to inspect the books of the Trump Organization. Fraud in the law is not always synonymous with deception or a lie. Whether purely internal records (that no one outside the company relied on), without more, can be used to sustain a charge that requires an intent to defraud is a subject of great debate among professors, former prosecutors, lawyers who’ve practiced in New York, and those who have examined the case law.
[My reading of the indictment and SoF was and still is that although they overcharged their proffer of proof convinced me that they have the goods, at the least they are good faith convinced that they have the evidence to convict before a reasonable jury. In real brief, I am not impressed with the legal analysis I have read on this case.]