President Trump Fights Off Political Prosecution
New York District Attorney to announce if charged are warranted
File photo/President Donald J. Trump (2023)
©️Val Ojeda. Writer
Today, we await word from the New York District Attorney's Office of weather not they will charge President Trump with bogus and malicious charges. It's a witch hunt and they are using a grand jury to hear testimony from proven frauds and liars. They have no evidence. All this from a former Trump lawyer that wants retaliation and a scorned porn star that wanted to shake down a celebrity billionaire 17 years ago.
So far it looks like the prosecutor will not charge Trump. The grand jury I predict will fail to indict him producing a true bill.
Now let me say this.
President Donald J. Trump is running again. Nobody is going to stop him. Repeating his campaign slogan for President in 2016 it's to Make America Great Again in 2024.
The campaign for President continues.
Texas is the first stop on the 2024 presidential campaign trail for Donald Trump, the former president’s team announced Friday. In this third consecutive bid for the White House, Trump will hold a rally on March 25 at the Waco Regional Airport.
With vocal support from Texas GOP leaders, Trump hopes to lock in the loyalty of Lone Star State voters before more Republicans join the primary race.
It is undisputed that Texas is Trump Country after electing 37 Trump Endorsed Candidates and recent polling among Texas primary voters,” his campaign staff wrote in a news release announcing the event. Trump’s campaign cited a tweet from Interactive Polls, a conservative media company, as evidence that in polls Texans favor Trump over Florida Gov. Ron DeSantis, a potential Republican nominee.
Since he made his announcement for President in November 2022, he has thrown the Democrats into a frenzy.
The United States is suffering from a broken economy with high inflation at 13%, a figure economists feel is a true reality. Biden is fighting a proxy war with Russia, giving Ukraine so much money that it would fund our annual national defense budget. The American dollar is devalued. In one week we had three major bank collapses and China is close to invading Taiwan, leading us into a world war.
Americans are going hungry. Visits to food banks have risen 25% annually since Trump left office, and food donations are running out. Taxes are continually raised, forcing 80-year-old seniors to drive Uber or deliver DoorDash to make ends meet or just to even eat, not counting the increasing costs of medications.
Interest rates are high. No one could purchase homes as they are $50,000 more because of lumber costs. The average car payment has risen from $500.00 under Trump to $850.00 under Biden and the car manufacturers cannot even move 2022 new vehicles.
The same people who voted for Biden are regretting it now. This will come to a reality when most will lose their 401k retirement funds and pensions.
Both Republicans and Democrats, including independents, will welcome Trump back with open arms. They need someone with a plan to fix this crisis. He may not be perfect, but he's proved it before.
Trump challenged other nations to pay tariffs. He eliminated federal funding to climate change. NATO finally contributed to paying their part of their GDP to operate the organization. He brought back American companies to be made in America and faced down China.
Most important, he was the only President to challenge the Federal Reserve and their questionable bailout practices. The DOW hit 30,000 points for the first time in its history and Americans, including the blue-collar workers, were becoming more wealthy.
The Democrats and Biden know that their failed economic policies and failure to deliver on their promises will lead to Trump winning back to the White House.
So, what do they do to prevent Trump from running? They investigate him and now they are attempting to prosecute him on state charges in New York.
Manhattan District Attorney Alvin L. Bragg wants to charge Trump under New York state’s business records statute for concealing hush money payments that may have affected the outcome of the 2016 presidential election.
Bragg, a Democratic socialist received one million dollars for his election campaign from George Soros. He stated his number one job was to seek out an indictment for President Trump just to prevent him from running again.
President Trump announced Saturday of his pending arrest on Tuesday (today) of course when you have a liberal prosecutor you can indict a ham sandwich.
The trumped up malicious charges they are coming after him for is paying hush money to Stormy Daniels a grifter that threatened to destroy his political campaign with false allegations just weeks before the election.
At no time did Trump commit a dangerous crime or sexual assault. He stole no money or committed fraud. There is no victim in this supposed crime. What is he being charged for: paying retainer fees to his former lawyer Michael Cohen.
That's it!
Let's begin to discuss the charges they want to charge Trump with and will they stick. I will review this case as a former criminal investigator that worked for the State's Attorney's Office in Illinois.
You have to be meticulous and objective. Let us begin.
I analyzed the applicable facts and law and predicted that charges were not likely. I will dive into a particular sticking point: the legal bases for elevating the misdemeanor business records violation to a possible felony. To my knowledge, no in-depth review of these bases has yet been made publicly available, and so we walk through them here. We also analyze Trump’s likely defenses, and conclude by addressing his inflammatory recent calls to action and what the DA will do next.
Falsifying Business Records
Falsifying business records under New York law can be charged either as a misdemeanor or a felony. The misdemeanor requires proof of one of several potential acts. Relevant to Trump is the statute’s prohibition of making “a false entry in the business records of an enterprise.” The evidence indicates he personally signed checks to Michael Cohen as reimbursement for the hush money payment. If DA Bragg can prove that Trump signed those checks and it appears he can and that Trump knew the payment for hush money was being falsely recorded as “legal expenses,” then Trump committed a misdemeanor (or likely a number of misdemeanors, if each false entry is charged separately).
To establish a felony (i.e. falsifying business records in the first degree), prosecutors would need to prove, in addition to the elements of the misdemeanor, that Trump’s “intent to defraud include[d] an intent to commit another crime.” There are a number of candidate crimes—and we offer below an assessment of just some of the more likely options.
Potential Predicate Crimes for a Felony Charge
Despite the numerous possible violations that could theoretically be charged, we focus our analysis on three possibilities based on publicly available information and our collective decades of experience prosecuting and defending criminal cases: (1) federal campaign finance crimes; (2) state campaign finance crimes; and (3) conspiracy to promote or prevent an election.
Federal Campaign Finance Crimes
There is no strong evidence that Trump’s conduct in the hush money payments involved federal campaign finance violations. After all, Cohen was convicted for just such offenses, and the Justice Department’s sentencing memorandum stated that he “acted in coordination with and at the direction of Individual-1,” who was easily identified as Trump. There are two potential problems with federal campaign finance violations serving as the basis for a felony charge in New York. There are nuances in the definition of the word “crime” under New York state law. The New York Penal Law defines “crime” as “a misdemeanor or a felony.” Both “misdemeanor” and “felony” are separately defined as an “offense” for which a term of imprisonment can be imposed (the distinction between the two being the length of incarceration allowed).
Finally, “offense” is further defined as:
“conduct for which a sentence to a term of imprisonment or to a fine is provided [1] by any law of this state or [2] by any law, local law or ordinance of a political subdivision of this state, or [3] by any order, rule or regulation of any governmental instrumentality authorized by law to adopt the same.”
Clearly, a federal law is not a “law of this state” or “any law, local law or ordinance of political subdivision of this state” – the first and second option. The third option in the statute, “any order, rule or regulation of any governmental instrumentality authorized by law to adopt the same,” could include federal law. In contrast to the other two clauses, the third does not explicitly limit “governmental instrumentality” to be “of this state.” And of course Congress is “authorized by law” to adopt laws imposing sentences of incarceration. Further, the “same” in this context could mean “any order, rule or regulation,” which could potentially include federal law. The text of the statute therefore could include federal crimes. Moreover, if the New York state legislature wished to limit the third option to New York state law, they certainly could have said so clearly. There also appear to have been cases in New York brought with a federal crime as a predicate offense, as we noted in our first essay in this series.
Nevertheless, the only appellate court in New York to have considered the meaning of “offense”—albeit in a very different context, and without parsing the third clause listed above—found that it applied only to New York crimes. That appellate court will not bind a Manhattan court because it is out of another district and because its context is so distinguishable. But it will undoubtedly be pressed by Trump as persuasive authority if the federal crimes are relied upon to elevate the misdemeanor books and records charge into a felony. It remains to be seen how a judge would rule on this point if it is put to the challenge. If we were charging the case we would charge both federal crimes and state ones as alternative bases for elevating the misdemeanor to a felony, and we further discuss the scope of the federal case in subsection 4 of the legal defenses section below.
According to press reports, however, it appears state campaign finance crimes may be the primary or exclusive basis for the felony upgrade. Indeed, we pointed out their potential applicability in the first essay in this series. We turn to them next.
State Campaign Finance Crimes
New York has a robust set of laws regulating elections that purport to apply broadly, including explicitly to “federal” contests. New York’s campaign finance laws also apply broadly to candidates who seek election “to any public office” (emphasis added). As a result, crimes outlined in New York’s state campaign finance laws might appear on their face to apply to candidates equally whether running for federal or state office—including for the presidency.
But the reality is more complex. To see why, take one such crime: N.Y. Elec. Law § 14-126(6). It states that any person who, “acting on behalf of a candidate … make[s] expenditures in connection with the … election of any candidate … for the purpose of evading the contribution limitations of this article, shall be guilty of a class E felony.” That the hush money payments were campaign expenditures seems relatively clear (as demonstrated, in good part, by Cohen’s conviction of those offenses at the federal level). They transgressed applicable state (and federal) limits and/or reporting rules. Moreover, the evidence supports the proposition that Trump was aware of that. For example, one of Cohen’s audio recordings of Trump indicates that Trump knew about the payments that would violate campaign finance laws. The audio recording also supports the contention that Trump knew the hush money payments were being made through a shell company that Cohen would be setting up.
In the recording, Cohen says, “I need to open up a company for the transfer of all of that info regarding our friend David.” (David apparently refers to David Pecker, who was involved in the hush money scheme and appears to have testified in front of the Manhattan grand jury investigating Trump.) In proceedings with the federal government, Pecker’s company admitted that the scheme was set up “to ensure that a woman did not publicize damaging allegations about that candidate before the 2016 presidential election and thereby influence that election” (AMI non-prosecution agreement). So, section 14-126(6) appears to apply to Trump’s conduct.
Nevertheless, a potential problem for prosecutors is found in a separate New York state campaign finance law that states that the “filing requirements and the expenditure, contribution and receipt limits” under state law “shall not apply to any candidate” when that candidate is required to file statements at the federal level, “provided a copy of each such statement or report is filed in the office of the state board of elections.” (The provision is a reflection of the federal preemption issues which we shall cover in more detail in the next subsection.) Perhaps DA Bragg could argue that the appropriate statement or report was not really filed in the office of the state board of elections because it omitted any reference to the hush money payment. Essentially, the argument would be that if you lie to the federal authorities, then you are no longer subject to the exception under state law. We have found no case law assessing such an argument in New York—we will have to see what a judge decides.
Conspiracy to promote or prevent an election
A more likely candidate for the crime that may convert the books and records charge to a felony is N.Y. Elec. Law § 17-152: Conspiracy to promote or prevent election. Under that statute, “Any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor.” Trump appears to have conspired with Cohen (and others) to promote his own election by making the hush money payments. The key questions are whether “unlawful means” were used and whether this statute is preempted by federal law.
Under New York law, “unlawful means” appears to be construed broadly—and is not limited to crimes (which would therefore require yet another predicate crime). In a 100-year-old opinion, the state appellate court with authority over Manhattan ruled that “unlawful means” as written in another statute does not necessitate “the commission of a crime.” Instead, the court held that “unlawful means” simply refers to conduct “unauthorized by law.”
That case, although vintage, is consistent with what we would expect to find when construing the meaning of section 17-152. New York’s highest court has noted that when language in a statute is not defined, words are generally to be given their “usual and commonly understood meaning” and that dictionaries are “useful guideposts” in ascertaining that meaning. Merriam Webster defines “unlawful” as “not lawful : ILLEGAL.” “Illegal” is further defined as “not according to or authorized by law : UNLAWFUL, ILLICIT.” Unlike with the definitions of “a crime” in the books and records statute, there appears to be no issue about the definition precluding the application of federal law. Indeed, these definitions appear to include any conduct that is inconsistent with the law, rather than just criminal conduct. And we would expect a judge ruling on the meaning of the statute to find as much.
Thus the potential “unlawful means” here are legion. There are the violations of federal campaign finance laws to which Cohen pleaded, as well as violations of state campaign finance laws, and potentially even the bank fraud for which Cohen was convicted in connection to the scheme. Some commentators have suggested that bank fraud is an option for a state law predicate, as it avoids the preemption problems of state campaign finance violations (more on that below). The biggest challenge to that theory is that New York generally requires some mental culpability as to each element of an offense. That would mean the prosecution would have to prove that Trump knew about Cohen’s bank fraud, and it had a sufficient nexus to the election interference. No publicly available information indicates there is any evidence of that, but perhaps DA Bragg has something up his sleeve. If so, then bank fraud could be a viable option.
A catch-all alternative
Either in addition to or instead of any of the offenses outlined above, DA Bragg may also consider the catch-all offense within New York state’s election code as the predicate crime for the books and records charge. That statute, N.Y. Elec. Law § 17-168, criminalizes any knowing and willful violation of any New York election law (to the extent the “violation is not specifically covered by” some other provision). There are many New York election laws Trump may have violated in the hush money scheme. As just one example, when Cohen made the payment to keep Stephanie Clifford silent, he was required to account for the expenditure consistent with New York campaign finance laws (so long as state campaign finance law applied to Trump’s candidacy, as addressed above). To the extent Trump directed Cohen’s conduct, he could himself be criminally liable under the catch-all provision for this violation.
Trump’s Possible Counterpoints and Legal Defenses
I addressed several legal hurdles that Trump may try to put in front of DA Bragg—including arguments that any charges would be barred by applicable statutes of limitations or that Trump could raise a defense based on the advice of counsel. We explained that those can be overcome.
Three more arguments that Trump may advance are: federal law preempts and thus blocks the campaign and election related state offenses at the state level; the funds used were not campaign money, and that the payment would have been made “irrespective” of the election. The federal preemption issue is a tricky one that requires unpacking but that appears to us to be ultimately unavailing. As for the other two hurdles we discuss below that Trump might advance, neither of them is persuasive either.
Campaign funds versus personal funds
Trump and his attorneys have noted that the hush money payments and repayments were not made with campaign money, as if that exonerated him. But as a starting point, that offers no defense to whether misdemeanors of falsifying business records were committed. The question of whether it helps the other crime needed to convert that charge to a felony depends on the other crime. It certainly offers Trump no assistance as to any of the three crimes discussed above.
For state campaign finance violations, the payment counts as a qualifying “contribution” even if it comes from non-campaign funds. New York Election Law § 14-100(9)(3) defines “contribution,” in part, as “any payment, by any person other than a candidate or a political committee authorized by the candidate, made in connection with the nomination for election or election of any candidate.” Cohen made the payment to Clifford, and not candidate Trump; a corporation (American Media Inc.) made the initial payment to Karen McDougal.
Likewise under FECA, a campaign “expenditure” includes any payment “made by any person for the purpose of influencing any election for Federal office.” The money not being campaign money therefore does not help Trump with federal campaign finance violations either. And a prosecution under the election conspiracy statute suffers from the same problems for Trump, as those are the likely “unlawful means.” (And if something other than campaign finance serves as the “unlawful means,” it would seem not to matter if it came from the campaign coffers or not.)
Trump’s counsel has asserted that Trump would have made the payment “irrespective of the campaign” which “ends this case,” but that line of argument does not hold up legally or factually. Legally, an expenditure is personal and not campaign-related if it is an expense “that would exist irrespective of the candidate’s election campaign.” But here the payment and entire scheme with American Media Inc.appeared calculated for campaign purposes rather than personal reasons. As we discuss below, Trump did not make the payment because he was hiding it from his wife—public evidence suggests that Melania already knew—and there is other evidence in the public record showing the payments were made to suppress the stories coming out before the election. And even if the payment were made both for campaign and personal reasons, Trump would have been required to document that expense, which he apparently did not.
Statute of Limitations
The misdemeanor/felony distinction also bears upon the statute of limitations issues we addressed in our last article. As we noted in our prior piece, it appears more or less certain that prosecutors have a great deal of time left on the clock to charge Trump with a felony for his role in the hush money scheme before the statute of limitations runs. However, it is closer in the event that only a misdemeanor is charged, or if a court ultimately buys Trump’s legal arguments and rules all the felony charges against him must be dismissed (leaving only misdemeanor offenses standing). Misdemeanors in New York are subject to a two-year statute of limitations. As we also noted in our first piece, however, statutes of limitations can be paused for every day Trump spent outside New York after the last criminal act he committed. The last known check Trump signed to reimburse Cohen—which Trump reportedly knew was to be falsely recorded as a legal expense—was apparently signed on December 5, 2017.
The question is therefore how many days Trump has spent outside New York since December 5, 2017. Apparently, the answer is a lot. According to a report by the Washington Post, Trump spent at most 81 days in New York during the rest of his presidency (and very possibly fewer). That left approximately 21 months on the clock at that point to charge him with a misdemeanor. And although it has been approximately 26 months since the end of his presidency and he could theoretically have run out the clock, it seems clear he has not spent approximately 80% of his days in New York (as would have been required for the clock to run by now). That means that so long as the Court of Appeals does not overturn any existing law on the issue, even a misdemeanor is not time-barred.
What's next?
If charged or indicted what is the process?
When charged most likely Trump would have to appear in front of a New York State judge for a bond hearing. Because of his status as President he will not be formally arrested. Because of procedure he will most likely have his picture taken to enter into their system. Also it would be necessary to provide fingerprints into the AFIS system. DNA sampling is not required.
At the bond hearing it is up to a judge to set bail. Most likely because the offense is not serious enough to warrant a high bail he will be released on his signature paying no bail because he is monitored already by federal law enforcement, the Secret Service. No ankle monitoring required as well.
The next court date will be for a plea hearing. At the hearing his lawyers may file for discovery requesting all of the prosecutors' records and evidence.
Immediately the attorney will challenge the probable cause of an indictment. They will ask for an outright dismissal even taking it to a higher court including the state supreme court.
Remember the charges are a case in theory. Bragg knows they will not stick. So he is trying this in the court of public opinion to embarrass Trump to prevent him from running. Eventually he knows they will Nolle prosequi (will not pursue) this case meaning they will drop the charges or a judge will order the charges dismissed.
Even if this were taken to court and found guilty of a felony Trump can continue to run and take office if elected. The Constitution gives him that protection in federal races.
A felon can run for Congress or President but not state or local races.
Today, Bragg and the State of New York have to decide to charge Trump. If they take this action they are handing him a presidential win.
This is our political Pearl Harbor. They will have to answer for this unwarranted political hit. Over 100 million Americans support Trump.
Independents and Democrats will be outraged. If this can happen to him as President then who's next?
Let us continue to support our Constitution and this great country. Let us rally around Trump because he will spearhead this fight to regain our country from the liberal Democrats who are tearing apart this great nation.
Let us Make America Great Again!
©️Val Ojeda is a Republican Author, Media Personality, Strategist and Consultant. Ojeda manages federal political campaigns also serving as President Trump's Hispanic Coalition Leader. Ojeda is also a businessman, entrepreneur and the founder of FAMA a 501c3 Chamber of Commerce. Ojeda served as law enforcement Veteran Officer/Detective.
