Mark Peterson/Pool via REUTERS
Setting the Record Straight on the NY Election Interference Case Against Donald Trump
This past April, I wrote an article for Meidas making the case for why the NY election case is the most important of all the indictments against Donald Trump. After a masterful presentation by the Manhattan District Attorney’s Office, 12 jurors unanimously voted to convict Trump of 34 felonies. In order to do so, they had to unanimously find that Trump engaged in election interference in the 2016 presidential election.
It was a grueling six-week trial, where nearly two dozen witnesses testified under oath, were subjected to blistering cross examination and vitriolic public scrutiny. By almost all accounts, Judge Juan Merchan was fair, even-handed, and preserved the integrity of the process. The prosecutors methodically and painstakingly introduced documents, records, recordings, photos, texts, emails, transcripts, social media posts and book excerpts to corroborate witness testimony.
Since the resounding jury verdict, however, there have been multiple critics of the case, the prosecution, the trial, the judge, and the Manhattan District Attorney, Alvin Bragg. As someone who spent nearly her entire career at the Manhattan D.A.’s Office (I have never worked for Bragg), I feel compelled to respond.
Skeptics have criticized this case from the beginning, saying it is less serious than Trump’s other three indictments. It has been called a zombie case, politically motivated, a Biden conspiracy, and 2024 election interference. A recent article in New York Magazine called it “an ill-conceived unjustified mess.” These arguments are incorrect.
As I will explain here, the critics were wrong about this case and continue to be wrong about this trial. As someone who spent nearly three decades as a prosecutor in the D.A.’s office, I respectfully must strongly disagree with those who criticize the D.A.’s Office for bringing this case.
Here are the facts: nothing about this trial was special or unusual in any way, other than the fact that the defendant was a former president guarded by the Secret Service. Was it somewhat messy? Of course. That’s the reality of the thousands of just-as-important state court cases that nobody ever hears about, that the office handles each and every day. While this was not the kind of wrapped-in-a-bow federal indictment that critics might be used to, this case was strong, contained a tremendous amount of corroborating evidence, and was not that special.
Convicting Trump was no arbitrary or simple feat. To reach a conviction, the jury had to find that he engaged in election interference in the 2016 election by falsifying business records 34 times, using unlawful means, in a scheme to deceive voters prior to the 2016 election. A jury of his peers, 12 ordinary New Yorkers, that both he and his lawyers chose, had to evaluate the evidence and the law. After doing so, they found Trump guilty on each and every count alleged.
One frequent criticism of the prosecution rests on a misunderstanding of the statute Trump was convicted of violating. That statute is Falsification of a Business Record (FBR) in the First Degree. It is a Class E (lowest level) felony. FBR is a routine and common New York State charge in white-collar cases. It can be either a misdemeanor or a felony—the difference being whether the defendant falsified the records with the intent to aid, conceal or commit another crime.
In this case, critics seem to be getting confused about the “other crime” language. In fact, Trump has himself claimed that the prosecution never specified the “other crime” with which he was charged. These claims are unfounded. They’re not based in fact or law and, frankly, reveal a lack of experience with, and significant ignorance about, New York state law. A similar variation is that the jury “did not specify” what “other crime” was the basis for their verdict and did not make a finding that Trump interfered with the election. This is simply false.
First, Alvin Bragg on day one, in the statement of facts filed along with the indictment, specified that this was election interference and that there were three unlawful means from which the jury could glean the defendant’s general criminal intent.
Additionally, Judge Merchan told the jury that they “must conclude unanimously that the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you need not be unanimous as to what those unlawful means were.”
So, for all of those who claim they do not know what the other crime was, and that they were never told, I can only advise that they read the record as it was specified.
As for linking the charges to election interference, the jury was specifically tasked with unanimously finding, beyond a reasonable doubt, that defendant Donald J. Trump unlawfully interfered with an election. Conversely, if the jury found that Trump falsified the business records, but that he did not do so to influence the election, then they must acquit (though this did not have to be Trump’s sole motivation). Those instructions were plain and simple.
Any claim that the jury found falsification of business records for some other unnamed crime, or that they didn’t know what the crime was is false, misleading and an outright lie. It also flies in the face of how Judge Merchan opened jury selection on the very first day of the trial: “The allegations are, in substance, that Donald Trump falsified business records to conceal an agreement with others to unlawfully influence the 2016 presidential election” and how he ultimately charged them at the end.
Others have criticized the Judge because he donated $35 to Democratic causes in 2020. This is in violation of a rule prohibiting New York judges from making political donations “of any kind.” This de minimus contribution occurred several years ago in apparent violation of judicial ethics, but labeling this a “structural infirmity” in the prosecution is a major exaggeration and simply wrong.
Any insinuation that Merchan should have recused over his $35 contribution ignores the fact that Merchan took the judicious step of raising the issue with the New York Advisory Committee on Judicial Ethics, seeking guidance on whether he would have to recuse himself from the case. The Committee ruled that there was no basis to recuse, asserting,“It is sufficient to say that these modest political contributions made more than two years ago cannot reasonably create an impression of bias or favoritism in the case before the judge.”
An assessment of the entirety of the trial transcript easily dispenses with this concern that Merchan was in any way compromised or that he should recuse. Experts, including other judges and ethics specialists, observed Merchan’s conduct in a challenging environment to be “a master class in what a judge should be.”
On May 31st, colleagues of mine at CNN admitted that “Judge Merchan has been very careful in the way he’s applied this gag order.” There is not a single example of Judge Merchan tilting the scales in favor of the prosecution. Instead, the judge did just the opposite, objecting sua sponte on the defense’s behalf during Stormy Daniels’s testimony and adopting the defense’s request for a heightened intent requirement of “willfully” for the jury instructions—over the prosecution’s vigorous objection.
Having appeared before Judge Merchan many times in my career, this exactly comports with his reputation and my experience. He is fair, impartial and judicious. As for allegations of partisanship, it is also worth mentioning that the entire process of selecting judges in New York State, like everywhere else in the country (including the Supreme Court of the United States), is partisan. Whether judges are elected or appointed, selecting a judge is a partisan exercise that leaves no doubt a judge’s political affiliation. Any minimal political contribution or personal ideology is no more any indication of the judge’s ability to be fair and impartial, than a judge’s political affiliation or the party that nominated his appointment or election.
Allegations that the trial was compromised by rampant partisanship could not be further from the truth. When Alvin Bragg was elected by Manhattanites, he was handed what was billed as a ready-to-indict case against Trump by his predecessor and my former boss. The case was the criminal companion to the recent NY Civil Fraud case brought by the NY State Attorney General.
Bragg reviewed the facts anew and determined that the case lacked prosecutorial merit and chose not to indict the former President. A Special Assistant D.A., brought in to solely investigate the case, publicly disagreed with D.A. Bragg’s assessment (he “leaked” his resignation letter and wrote a biased “tell-all” book that is now predictably being weaponized by Trump and his supporters) and resigned in a huff because the elected D.A. deigned to disagree with him.
If Bragg were out to get Trump at all costs, he could have merely brought that case and avoided tremendous public backlash. But that is not what he did or who he is. Bragg did exactly what he promised to do—follow the facts wherever they lead, without fear or favor.
These claims of bias are also offensive and condescending to New York voters, who chose Bragg based on his credentials and entire platform. The very NYT article cited in support of the idea that Bragg was out to get Trump actually says: “Bragg’s campaign was hardly all Trump. He also championed the sort of criminal-justice-reform issues—for example, ending long prison sentences for low-level street crimes—that had helped progressive prosecutors sweep into office nationwide.”
Hardly a Trump obsessive, just two years ago it seemed like Bragg would not bring a case against Trump at all. In response to questions about the case on the campaign trail, Bragg responded, “I don’t know where this investigation will go. I don’t want to prejudge it.”
Also of note, the prosecutors who brought this case, several of whom I have known for decades, are not political and never bring politics into the office. I couldn’t tell you which political party most of them belong to—as politics and prosecution were never mixed at the Manhattan D.A.’s Office, and for good reason. I also know that if the men and women who tried this case did not believe in the merits or that the defendant was guilty beyond a reasonable doubt, they would have walked out and refused to prosecute the case.
I am proud to say that no prosecutor in the Manhattan D.A.’s Office has ever been forced to bring charges they did not believe in or that they felt they could not prove beyond a reasonable doubt. The prosecutors are trained to follow facts, wherever they lead, and then apply the law without fear or favor. It may sound trite to some, or an overused phrase, but it is ingrained into the DNA of every prosecutor. It’s why I spent most of my career there. Every day, when I walked into One Hogan Place I was greeted by a sign on the wall by former D.A. Frank Hogan, “You can’t play politics with people’s lives.”
I have also heard critics question the charges themselves claiming that “[N]o state prosecutor—in New York, or Wyoming, or anywhere—has ever charged federal election laws as a direct or predicate state crime, against anyone, for anything. None. Ever.”
This argument is perplexing. Of course, this case is unprecedented since no President ever tried to steal an election before. The indictment in this case did not allege—and the jury was not instructed—that federal election laws were either the direct or the predicate crime.
Instead, Trump was charged with falsifying business records, which required an intent to defraud that included an intent to aid, commit, or conceal a violation of New York State Election Law. The state election law provision in question, which served as the predicate crime, was a conspiracy to unlawfully promote his own election.
Further, the above critique is not true. There have been several cases where a federal predicate was used for convictions in New York state court. Consider People v. Abedi, where defendants were charged with falsifying business records in the first degree, based on false statements or omissions they made on Federal Reserve forms. In that case, the defendants argued that the prosecution was not permitted to predicate the charges on false answers on a federal form, but the judge ruled against them.
It is worth further unpacking this common refrain about the Trump prosecutions: that they are novel, thus they ought to be disfavored or discounted. This is nonsensical. Identifying how the Trump prosecutions are unprecedented simply underscores the uniqueness of Trump’s behavior.
Never before have we had a president who—as multiple grand juries across the country, in both state and federal courts determined—attempted to subvert election results, conspired to unlawfully change the outcome of a state’s election, willfully mishandled classified documents, or falsified business records to conceal hush money payments to a mistress in order to hide this from voters. Nor have we had a president who seeks absolute immunity for criminal conduct.
There is no question that if Trump had conceded the election after he lost, like every presidential candidate before him, and if he hadn’t incited an insurrection, which no president had ever done before, he would not face some of his unprecedented legal challenges. But let’s be clear: the prosecution against Trump was only novel and unprecedented because of the defendant’s identity and audacity. The crimes themselves were quite familiar and are frequently prosecuted.
I have also heard a false comment claiming the Manhattan D.A. almost never brings any case in which falsification of business records is the only charge. Although a New York Times article cites only two other felony cases in Manhattan over the past decade in which defendants were indicted on charges of falsifying business records but no other crime, a more thorough review of past cases proves otherwise and also suggests that Trump should serve time in jail for his crimes given the egregiousness of his conduct.
Here are several examples, from recent years, of defendants facing conviction for purely first-degree FBR charges: Brega, Smith, Nguyen, and Structure Tone, Inc. There are also many plea deals and deferred prosecution agreements from the past several years that rested solely on charges of first degree FBR: Rojas Jr. and Wright, Standard Chartered Bank, Credit Agricole, Societe Generale S.A., HSBC, ING Bank N.V., Credit Suisse AG, and Barclays.
Furthermore, between November 2020 and March 20, 2024, there were 457 cases with a final disposition in which the most serious charge at arraignment was falsifying business records in the first degree. Fifty-five of these cases—or approximately 12 percent of the total—resulted in a prison sentence.
Trump himself and his amplifiers also complain about the timing of the charges and bumping them up to a felony. As a friend and colleague stated: “So, to inflate the charges up to the lowest-level felony—and to electroshock them back to life within the longer felony statute of limitations—the DA alleged that the falsification of business records was committed ‘with intent to commit another crime.”
This unfounded criticism regarding the timing puts the cart before the horse. It incorrectly suggests that the D.A. needed a means to resurrect charges against Trump. He did not. In reality the D.A. deferred to a pending federal investigation, at the request of Trump’s DOJ, before deciding whether to bring the case to a grand jury. Trump committed 34 felonies in furtherance of his 2015 and 2016 election conspiracy, however the statute of limitations was tolled, as it would have been for any other defendant, because he was “continuously” outside of the state during this time (while in the White House) and because New York suspended criminal statutes of limitations due to delays caused by COVID-19.
Further criticizing the felony charges as a “trifling offense,” completely misses that election subversion is a crime that offends both core democratic sensibilities and the law. As we now know, and as the prosecution argued in summation, since Trump won by only 80,000 votes in three swing states, suppressing this information from voters perhaps made the difference in the election. That’s not a trifling offense.
Indeed, it’s hard to imagine a more significant one. The DA did not have to hunt for Trump’s intent to aid or conceal a conspiracy to promote his own election in order to meet the elements of the felony offense. The offensive nature at the very heart of the case is Trump’s intent to commit aid or conceal the conspiracy to alter his own presidential election. Falsifying records that have little significance outside of a company’s internal bookkeeping falls within the spirit of a misdemeanor intended to promote accurate business records; but doing so to conceal bribery, money laundering, or—in Trump’s case—presidential election fraud is exactly why New York law elevates the crime to a felony.
The prosecution had to prove that the false business records interfered with the election by “unlawful means.” Critics have claimed that the D.A.’s theory and Merchan’s instructions lack transparency, since the unlawful means could consist of several (specified) theories and the jury did not have to unanimously agree on which unlawful means.
For example, the aforementioned New York Magazine article goes on to say, “inexcusably, the DA refused to specify what those unlawful means actually were—and the judge declined to force them to pony up—until right before closing arguments. So much for the constitutional obligation to provide notice to the defendant of the accusations against him in advance of trial.”
Like most of the “undeniable facts” from that article, this accusation is wrong, and a misstatement of NY Law. Both the D.A. and the judge expressly analyzed all three unlawful means in the form of potential predicates back in February, prior to the trial. The defense not only had more than adequate notice, but addressed each of those issues in its motions prior to trial. In fact, the DA and defense litigated, and the judge adjudicated, how the predicates could serve as the “unlawful means” of New York Election Law 17-152: the People alleged the defendant violated 17-152 “by ‘unlawful means,’ including by violating FECA through the unlaw[ful] individual corporate contributions by Cohen, Pecker, and AMI; and… by falsifying the records of other New York enterprises and mischaracterizing the nature of the repayment for tax purposes.”
The easiest way to explain this is through an analogy. Prosecutors in New York prosecute literally thousands of criminal trespass and burglary cases each year. Trespass, which is a misdemeanor, is defined as entering or remaining unlawfully in an area without permission or authority. Burglary is trespass-plus. To meet the level of the felony of burglary, a defendant must trespass and have the general criminal intent to commit a crime therein.
Prosecutors often do not know what crime a burglar was going to commit, yet still are able to charge burglary because they can prove he had a general criminal intent. For example, if a person were to walk into an apartment without permission or authority, carrying a sleeping bag, saying he needed a place to sleep, he would be arrested for misdemeanor trespass because he lacked the criminal intent to elevate it to the burglary.
If, however, that same individual, rather than carrying a sleeping bag, was walking down the hall of an apartment building, checking for unlocked door knobs, and then walked into a random apartment but was immediately arrested, prosecutors would analyze his intent by surrounding factors.
For argument’s sake, let’s say he was wearing a mask, possessed a safe cracker, burglars’ tools, zip ties, etc. Perhaps he himself did not know which crime he would commit until he saw the opportunity and hadn’t yet formulated the specific intent, since he did not know what would present itself once he found an unlocked door. In this situation, jurors don’t have to agree on what crime they thought he might commit once inside—one may believe it was sexual assault, another theft.
But because the jury unanimously finds there was a general criminal intent to commit a crime therein, they can find a defendant guilty of burglary anyway. This is a tried and true legal concept that has been around since the beginning of time, and has been upheld in New York state courts for decades.
Finally, claims that “the charges against Trump aren’t just unusual, they’re bespoke, seemingly crafted individually for the former president and nobody else” are, once again, simply false. There is nothing bespoke about these charges, which gets at the crux of the misunderstanding swirling around the trial and verdict.
First, there is a lot of misinformation about the charges themselves. It is false that no one has previously been prosecuted for falsification of business records in the first degree with a campaign finance violation as predicate. See, for instance, previous cases including Brega (who caused the business records of the New York State Board of Elections to be false, with the intent to donate well in excess of what was legally permissible and with the intent to conceal that fact by making it appear as if other people were making the donations) and Norman (whose indictment included first-degree FBR, since he caused the omission of a true entry in the records of the Committee to reelect himself and of the Board of Elections).
And, these charges fit Trump’s conduct like a glove—just as an indictment should. To the extent the charges are unprecedented, that is only because Trump’s conduct of paying hush money to a porn star to hide an affair from voters (on the heels of being caught on tape bragging about sexually assaulting women) and then falsifying business records to cover it up is unprecedented.
In the end, any assertion that prosecutors “contorted the law” to convict Trump fundamentally misunderstands this case. Trump is solely responsible for this trial and this verdict. Even assuming that the D.A., the judge, and the majority of the jury pool are not fans of the ex-President, it was Trump who committed these crimes and was indicted by a grand jury. It was Trump who, despite being afforded the same Constitutional rights as every other American, was allowed to vilify the process and the people involved in it. And most importantly, it was Trump who was proven to have committed 34 felonies beyond a reasonable doubt based on the evidence and the law. These are the undeniable facts that matter most.
To close this rebuttal, I want to give the case’s critics their due on one count: namely, they’re right that the justice system treated Trump differently than other defendants. For instance, any other defendant who repeatedly violated a court’s gag order and was held in contempt 10 times, threatened the prosecutor, attacked the judge’s family, and required an anonymous jury to protect them from a defendant and his followers would not be afforded the privilege of liberty.
Trump, now a convicted felon, does not accept responsibility for his crimes, repeatedly violates gag orders, and attacks witnesses, judges, court staff and jurors, yet he is consistently treated leniently by the system. That is indeed highly unusual. Any other defendant would have been incarcerated long ago for these egregious violations of the law and would be sentenced to prison.
