I am not impressed with the felony conviction of Donald Trump. Turn on CNN, and you hear Trump, Trump, Trump, all day long. And I hear Democratic heads gleefully labeling Trump a felon. Felon, felon, felon. O.K., the court said he was a felon, so legally he is one. I hear Republicans bellyaching that the prosecution was “political,” and I think they have a point.
I am not arguing here that the charges against Trump were false. I assume they were not false, that he did what they said he did. What the man did, however, just doesn’t amount to much.
What exactly was Trump’s crime? Back in 2005, he was a celebrity on lowbrow television. Back then, Trump is said to have had a tryst with Stormy Daniels, a woman who made sex videos for money. Trump says her story is false. I’m inclined to believe her. Anyway, in 2016, 11 years later, Trump’s run for president against Hillary Clinton opened an opportunity for Stormy Daniels. At the precise moment her promise had the highest market value, she made a sale. Ever the dealmaker, Trump instructed his legal fixer, Michael Cohen, to wire Daniels $130,000 to keep silent. In a series of 11 payments, Trump reimbursed Cohen for the $130,000 and paid Cohen another $290,000 for paying income tax and his valuable personal service.
What should we think about these transactions between consenting adults? Paying a person not to talk is not, in itself, unlawful. I can think of some names for Daniels’ opportunism. But nobody cares what she did. They care about what Trump did, which the judge in the New York case grandly described as making “an agreement with others to unlawfully influence the 2016 election.”
It’s not unlawful, as such, to influence an election. Between now and November, our televisions will be blaring with ads trying to do just that. The judge’s reference to “unlawful influence” is about the law of campaign finance, which limits how much money citizens can donate to candidates and requires those donations be reported. The law’s purpose — according to the Supreme Court, which approved it — is to stifle corruption. Campaign finance law aims to stop outside donors from paying candidates for future favors. That’s why law has no limit on how much a candidate can spend on himself.
In this case, though Cohen made the payment to Daniels, it was Trump’s money. Should Trump have reported his payment as a contribution to his own campaign? The New York court said yes. And he hadn’t.
After Trump became president, the Donald J. Trump Revocable Trust, which controlled his assets, had to decide how to account for the $130,000 that went to Daniels. The Trust decided to call it “legal expenses.” To the prosecutors, this was another violation. Under New York law, for a private business to mislabel an expense is a misdemeanor, even if it wasn’t done to cheat anyone.
Call it an accounting crime. The Trump Trust was not following Generally Accepted Accounting Principles. Well, then, what were the trust’s accountants supposed to call the $130,000? “Other expenses?” “Sundries?” “Goodwill?” What?
Set that aside. Nobody cares about the accounting. They care about Trump, and under New York law, for the Trump Trust to call it “legal expenses” was a misdemeanor. The prosecution then asserted that the mislabeling was done to cover up another crime — Trump’s failure to disclose the payment as a campaign contribution. In New York, if you snap together these two Legos you get a kind of junior felony, called a Class E felony.
And that’s the case Trump just lost. It’s all about disclosure. (I note that Hunter Biden’s felony conviction on “weapons” charges was also about disclosure.)
People who enjoy the outcome are saying, “It’s the law!” Our republic has shelves and shelves of rules, far too many of them to enforce all the time. And thank you for that, since Americans have never wanted the law screwed down that tight. Legislators write statutes from which prosecutors can pick and choose. The system works as long as the outcome is reasonable and fair.
That bumper-sticker maxim, “No one is above the law,” expresses the hope that the powerful and the people are bound by the same ones. But Trump has been branded a felon by using two of them, neither of which ordinary Americans have to worry about, in a connect-the-dots case designed specifically for him. In doing this, prosecutors used each statute in a new way.
I hear on TV that this was a “novel” use of the campaign-finance and accounting laws — a tip-of-the-hat to the smart lawyers who thought it up. And who were those lawyers? The elected New York prosecutor campaigned for office as an enemy of Trump (rather like our own attorney general, Bob Ferguson). The judge had made donations to the Biden campaign. And the jury was selected from a city which is as solidly Democrat as Seattle.
And now the Republicans are complaining that the case is “political.” Naturally, they would.
Tell me you’re not a lawyer without telling me you’re not a lawyer.
Not following accounting approved practices is a misdemeanor. Doing so and lying about it with the intention of burying a believable scandal that could change an election is a felony. The prosecution made its case.
Good question Bruce and something useful to consider “What’s the big deal?”
Well I know that in private sector businesses I have run, falsifying records in order to conceal another crime would likely get me jail time. Trying to hide payments to distributors I purchased supplies from in order to hide my relationship to them would get me in trouble. I might get a suspended sentence if it was my first one and I had extenuating circumstances..Then in my work in the public sector, falsifying records to hide a relationship with someone would get me jail time and fired.
So this little guy feels good about a big guy getting caught concealing records and lying about it over and over. If I had acted like Trump in any of my business dealings I would have earned the scorn of the very people who are his biggest supporters.
Side note:
Apparently falsifying records to conceal some sort of fraud is common in NYC. Bragg’s office has prosecuted over a hundred since he took office.
My bet is that when Trump is sentenced, the Judge will include data on how similarly-situated criminals have been treated and will show how Trump’s (e.g “first time offender”) sentence is in line with others. So Bruce, maybe your post is premature?
Lawyers out there… is my surmise on sentencing data typical/likely?
Gordon White, you have hit the nail on the head, in my opinion. We “little guys” seem to get caught up by the legal system because we a) do something wrong and b) we are the “little guys”: our cases are too mundane to be headline news, and too unimportant and powerless to effectively fight back.
the cha
That said, I have to admit to a degree of schadenfreude that, finally, Trump has been shown to be guilty of something and the charge stuck. He has done many things far worse. Trump may now be just a minor felon, but in the view of most Americans (I assume) he is a major moral stain on America.
The more Mr. Ramsey writes, the harder I find it to believe that he was once taken seriously in this town as a writer.
I am not a lawyer, but from my layman’s perspective the legal theory behind the case seemed like a bit of a reach – and there was more than a little whiff of selective prosecution here. That said, most of the blame for the outcome of this case rests in one place: on Donald Trump. If Team Trump had mounted a smarter – and more honest – defense they may well have been able to hang the jury or even beat the rap.
They should have admitted he had perfunctory, transactional sex with Stormy Daniels, and then paid her off because he wanted to keep his wife and family from finding out. Which Hope Hicks teed up in her testimony, and which would have been plausible to the normies on the jury, and which is how John Edwards beat a similar rap (remember all those payments to his pregnant “videographer’?). It’s not a campaign finance violation if the primary intent of the payoff was to keep his wife and lids from finding out about his infidelity.
But they didn’t play it smart, because of Trump’s ego and his pathological inability to acknowledge any error or wrongdoing. So the defense ludicrously claimed Stormy Daniels was making it all up, which succeeded in glaringly demonstrating for all concerned – including the jury – that Trump is even less trustworthy and an even bigger liar than Michael Cohen.
Proof Point One Million that Trump really is fantastically stupid, along with all of his other manifest faults. And that he richly deserves whatever punishment the judge hands down.
Sandeep,
You’ve raised the very interesting issue of “selective prosecution”. Thanks. I had no idea that it was a real legal doctrine so I looked into it a tiny little bit.
Assuming NY State laws allows such a defense as “ selective prosecution”, did Trump claim it?
It appears to actually be a real defense in some courts. (See below)
So I guess either the jury didn’t believe it? or Trump didn’t offer it as a defense because it was not fact-based? Or what?
Since you’ve asserted it, I assume you’ve looked into this issue of selective prosecution with regard to Trump so curious to know your response.
https://en.m.wikipedia.org/wiki/Selective_prosecution
“Show me the man and I’ll show you the crime.”
– Lavrentiy Beria (1899-1953), Minister of Internal Affairs of the Soviet Union
As a counter to this opinion, I suggest reading David A. Grahams piece in The Atlantic titled “If Trump Is Guilty, Does It Matter If the Prosecution Was Political?”
Given our legal system, taking what you can get can be legit.
12 citizen jurors in Trump’s hometown found him guilty of felony crimes. The legal system works.
I agree this crime is minor when compared with Trump’s business and charitable foundation frauds – and the serious crimes of conspiracy to subvert a presidential election for which he has been indicted – let’s hope that the Supreme Court does not immunize Trump from criminal prosecution and a jury gets to hear this important federal case.
There are a number of supporting claims in Bruce Ramsey’s piece on Donald Trump’s felony conviction. Mr. Ramsey repeats “people don’t care” because the author sees this case as a minor crime. The number of comments that the Ramsey piece has contradicts that notion. The mountains of coverage, punditry, analysis, and detailed reporting of the trial, the srun-up to the trail and the aftermath hardly spell “peopel don’t care”.
Mr.Ramsey makes the case that the misdemeanor that is the agreed crime does not rise to the test of a felony. True in the eyes of the author. But a jury chosen by both the defense and prosecution and presumably balanced to the satisfaction of prosecution and defense came to a rapid agreement on 34 counts in the indictment. Mr. Ramsey may be right in one respect. The rapid verdict, by one analysis, points to a poor defense case and a convicing prosecution case.
Mr. Ramsey then labels the felony level crime that he dislikes over its misdemeanor origins as a “junior felony”. I missed that one in my law school classes.
for a layman’s view of selective prosecution, the trial somewhat looks that way. The felony conviction may not seem like much given all that. It did prove, however that Trump had an eight-month affair with a Playboy playmate including the one-night stand with the porn actor — while Trump’s wife was at home pregnant with Baron. That’s the real take away from the trial and, unless the country’s moral compass no longer exists, that fact along with his many other chaotic ways should carry some weight.
We lost our moral compass when we did nothing about Bill Clinton lying to our faces on National TV about having sex with a junior staffer in the Oval office.
I don’t believe that “lying to our faces on National TV” is actually a crime — happens a lot, imho — but that’s almost beside the point. Lying under oath to the Independent Counsel (Ken Starr) was a criminal offense, and that was the basis of both counts of Clinton’s impeachment – lying under oath and obstruction of justice.
I would not get all “I am Holier than Thou” about what case is more political or consequential: they are both symptomatic of the cesspool that is American public morality in this day and age. The question for voters is, who you would rather have in office. And the answer to that will ALMOST always depend on your political persuasion.
Correct me if I’m wrong here, David, but wasn’t he impeached and put on trial in the Senate and later lost his law license? That’s not nothing.
Trump is triUmphant. We have become benumbed by the sound track of “Trump, Trump, Trump.” What does it take to awaken the sheep? The silence of the lambs is defeaning. Bruce is on a liberatarian roll. And, yes, Trump is a goddam felon.
You’ve raised some interesting and valid points here, Mr. Ramsey, but really you lost me with the third sentence: “What the man did, however, just doesn’t amount to much.”
In fact, what he did, and his assumption he could get away with it, is yet one more example of Trump’s arrogance and sense of entitlement. If he had done any kind of planning for his campaign, he would have gone out and bought all the silence he thought he might need before he put his hat in the ring. It would have been a lot cheaper in so many ways.
It’s maddening that this story and the comments about selective prosecution all miss the main point of the trial. David Pecker was the first and key witness — it was his testimony that the jury asked to have read back to them. Why? Because he testified that he, Trump and Cohen together hatched a conspiracy to illegally influence the election! Trump couldn’t have tried a John Edwards “it was about my family” defense because of Pecker, who said under oath that it was all cooked up to help the campaign. The meeting to hatch this conspiracy was held in Trump Tower, for cripes sake. End of story, guilty. Not selective prosecution, not far-fetched, not a reach. The whole thing was a scam on American democracy, of a piece with what Trump would later try in plain sight with fake electors and Jan. 6 trying to overturn an election (and which he should also be on trial for).
Everyone go easy on my friend Bruce, though, he’s a libertarian — he thinks everything should be legal.
You are correct that Trump is guilty and it’s also reasonable for people to ASK QUESTIONS about selective prosecution.
The problem is people don’t ask questions…
(such as “What is selective prosecution? Does it apply in this case? Did Trump ever make the claim in court that it was selective prosecution?”)
….. but people think they know what they’re talking about.
In fact what you’re stating may be entirely true that Pecker was completely honest in his testimony, etc., etc., ….and there could still be selective prosecution.
Danny, please check out “selective prosecution” — both your comment above that Trump was clearly guilty could be true AND there could still be selective prosecution…. the issue (so far as I can tell from Wikipedia ) is whether other people — “similarly situated” seems to be a phrase — who have done similar acts are also brought to court by the criminal process. Or not.
I wish there was a lawyer here who could explain “SELECTIVE PROSECUTION.”
I don’t think it takes a lawyer to explain the term. The wiki page link posted above describes it well in three paragraphs.
OK, I’m a lawyer: I’ll boil the term down to one sentence—
Selective prosecution is a complete defense to a criminal conviction if it can be proved that the charge was brought in “den[ial of] equal protection of the laws” (14th Amendment, Section 2), based on selection of the defendant due to their status as a member of a protected class such as age, race, or political beliefs.
I quickly found a key statement about use of the defense in Washington State, the opening line in Mark v. Bauer, unpublished opinion (Wash. Jun 20, 2005):
“To prevail on a claim of selective prosecution or enforcement, the plaintiff must show both a discriminatory effect and a discriminatory purpose.”
I followed the Trump trial in NYC pretty closely. I do not recall seeing/hearing any reference to use of the selective prosecution defense.
Danny, your point about Pecker (your Pecker point?) clearly stating it was a conspiracy to impact the election is a good one, and maybe was decisive with the jury. But we’ll never really how compelling that testimony was because Trump didn’t even try to contradict it or make that defense. I would still argue that a “yeah I made the payments to protect myself from embarrassment” would have been a much better defense than the one they mounted.
Bruce, Bruce. You should be ashamed for blinding yourself to Trump’s guilt. Trying to protect his family? Give me a break. He bagged the presidency by enlisting others to do his dirty work, engaging in a conspiracy to defraud the American public.
Bruce Ramsey writes disapprovingly of Stormy Daniels’ “opportunism.” Then he whines that, “nobody cares about what SHE did.” (You big bully, Stormy!) Nice try, Mr. Ramsey, but comparing an adult-film star who slept with the fabulously wealthy Donald Trump for money, then wanted six figures (a pittance to Don) to bury the story…come on, are you equating her money push with Trump’s illegal attempts to influence an election….you are seriously saying her “crime” is on a par with his? Laughable, too, is any assertion that Democrats are responsible for shaming Donald Trump in the eyes of his family. Trump did that all by himself.
The story I have seen doesn’t mention “for money”, as in money exchanged or promised. It looks like something he’s been accustomed to doing, when he thinks he can.
I offer two thoughts about my friend Bruce Ramsey’s column.
The first and moist obvious is that were Joe Biden the accused and tried, Republicans would be just as happy as the Democrats are now that the Donald is a convicted felon.
Second, Ramsey dies not mean or believe that “Nobody cares about accounting.” Most of us do.
We want honest accurate accounting be it our credit card bill, our tax filings, making sure our bank and investment statements are accurate.
So saying, the argument based upon equivalence, that this case is less that the case involving the January 6 insurrection, fails to justify it not having been filed.
We have suspected that Tump is a crook. Now we have the evidence to prove it. Next?
sam sperry
Mr. Sperry
Thank you, sir, for the post. I am continuously surprised at the gyrations undertaken by Trump’s apologists and am thankful you replied as I lack the words.