POST PRESIDENTIAL state INDICTMENT part 1

Hello, street law advocates!

As many of you have seen in the news, former President Trump was recently indicted on 34 counts of falsifying business records in the first degree in violation of New York’s Penal Law 175.10. Sen. Mitt Romney of Utah, a critic of the indictment  expressed concern that this is an instance of prosecutorial overreach that may not meet the standard of due process. [i]

Mr. Trump allegedly falsified business records in an attempt to cover up his campaign’s suppression of negative information by having his lawyer pay $130,000 to an adult film actress. This payment was made through a shell corporation from the Lawyer’s personal bank account which Trump then reimbursed under the guise of legal fees. In addition, Trump allegedly falsified entries made in New York business records in attempt to conceal the hush money payment to the adult film actress. [ii]

In order to be convicted of falsifying business records in the first degree in violation of New York Penal Law 175.10, an individual needs to commit the crime of falsifying business records in the second degree with the intent to defraud and an intent to commit another crime or to aid or conceal the commission thereof.[iii] The standard of proof necessary for a grand jury in New York is whether the prosecution has provided enough legally sufficient evidence to warrant a possible conviction when viewed in the light most favorable to the state. [iv] Legally sufficient evidence is evidence that solely needs to establish the possibility of every element of an offense charged. This standard of proof is considerably lower than what is needed to sustain a criminal conviction and is just a precursor to taking a case to trial. The standard of proof in a criminal trial is a beyond a reasonable doubt standard which means that the jury thinks the defendant is guilty, and there is no reasonable doubt that contradicts a guilty finding. This contradicts the standard of proof for a Grand Jury in New York, because it is a higher bar of evidentiary proof than a Grand Jury needs to issue an indictment. In the context of former President Trump’s alleged crimes, the prosecution needs to show evidence to the grand jury that establishes that he may have 1) falsified business records and 2) did so intending to commit another crime or hide evidence of another crime, whereas during trial they need to prove that Trump actually committed these acts beyond a reasonable doubt. Essentially, the prosecution does not need to show that he committed any crime, just show that it is plausible that he did. 

Upon inspection of the indictment, there are no currently available facts available suggesting that former President Trump committed the underlying criminal behavior. The indictment merely states that the grand jury accused Trump of committing the alleged crime, and then provides a short statement outlining the elements necessary to prove a conviction under New York Penal Law 175.10. The statement of facts merely gives an illustrative story that seeks to prove the alleged criminal actions but provides conjecture that is not dispositive of criminal behavior. While the statement of facts is not alone sufficient to support a criminal conviction, these facts do at least establish the mere possibility that these allegations happened, which under New York law, is enough to support an indictment. 

The statement of facts and indictments have spurred criticism of the criminal justice system and have led to mainstream discourse seeking to highlight the issues with criminal justice practices. While it is great that these topics are back in the mainstream consciousness, we as a society should be careful to not only address these systemic issues that disproportionately impact underserviced and minority communities when a celebrity may be affected by it. Over the next couple of weeks, we will be adding to this blog thread to highlight criminal justice and constitutional issues that affect the average person to shed light on the legal discourse that actually affects our communities. 

[i] Politico, Bragg’s Case Against Trump Hits a Wall of Skepticism – Even from Trumps Critics,  https://www.politico.com/news/2023/04/05/alvin-bragg-case-against-trump-00090602

[ii] Politico, Read the Full Trump Indictment and Statement of Facts, https://www.politico.com/news/2023/04/04/read-the-trump-indictment-document-00087925

[iii] N Y PENAL § 175.10

[iv] People v. Arcila ,59 N.Y.S.3d 783, 784 (N.Y. App. Div. 2017).