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Is it possible to be objective in connection with the Trump indictment? Here is my effort.
I had the great privilege of working on the Watergate case with Henry Rothblatt. Rothblatt represented "The Plumbers," the men hired by CREEP, the Campaign to Reelect the President (Nixon), to effectuate the break in at Democratic headquarters at the Watergate Complex. When Henry Rothblatt found out that the men were receiving "hush money" to plead guilty, he refused to represent them any longer. Rothblatt, with his impressive staff and credentials, came to my apartment to tell me that I would be out of a job. He said, "I know that you left another job to take this position." He offered to write a recommendation for me and that recommendation led me to work for Judge Malcolm Muir in the Middle District of Pennsylvania.
The payment of "hush money" may not be ethical or honorable, but the question is whether it is illegal.
Lest there be any question about DA Bragg's motives in bringing the charges against former President Trump, simply read his written "statement" accompanying the indictment and listen to his press conference. He said in the clearest possible terms that this indictment is about the 2016 election and Bragg's view that Trump utilized "hush money" to keep sexual soirees from becoming public before the vote. As we learned in the Starr vs. Clinton, Monica Lewinski scandal, "when they say it is not about sex, it is about sex." That was accompanied by the other not so brilliant observation that "when they say it is not about money, it is about money."
Just as the Republicans launched a multimillion dollar investigation and impeachment in connection with Bill Clinton, because of his sexual misconduct with Monica Lewinsky, when they could have gone after Whitewater and other serious violations, the Democrats are now doing the same thing.
The 34 counts are essentially one transaction. The district attorney has broken the offense into 34 parts, because each one is punishable by separate code violations, therefore multiplying the potential sentencing.
It is a felony to falsify records when there is a specific intent to commit or conceal another crime. There must be an intent to defraud.
Is it required that the falsification of records be based upon submission to an agent, such as a revenue department? Is it a felony to falsify one's own records? It is important to remember that each element of the offense must be proven beyond a reasonable doubt. The District Attorney will need to show a specific intent on the part of Mr. Trump to "falsify" records in order to conceal another crime. What that crime is, is not set forth in the indictment. It will be revealed in the Bill of Particulars.
Lest anyone be hanging by their fingernails waiting to find out what that other crime is, DA Bragg has told us what that crime is. Bragg had to do this, since without the commission or concealing of "another" crime, there is only a misdemeanor on which the statute of limitations has already run.
Does a county district attorney have the right to invoke federal election laws, which generally preempt state law? Can Bragg possibly get a conviction for an intent to commit or conceal a crime with respect to New York state election laws, when Trump could not possibly have even known about those laws?
Proving fraud can be very difficult. Generally speaking, the district attorney would have to show, beyond a reasonable doubt, a misrepresentation, which is material and was relied upon by a third party. Every state law is a bit different on this, but it is not an easy standard.
The district attorney has written documentation of how the payments to attorney Cohen were designed, and a host of witnesses whose credibility is questionable to say the least. Cohen is already a convicted perjurer, and Stormy Daniels, not her real name of course, is not exactly the pinnacle of credibility. She recently lost a case, when sued by Donald Trump for defamation and she owes Trump a ton of money for her behavior.
Bragg's Statement of Facts, reveal his true intent: In order win the election, Trump made payments to Lawyer A (Cohen) disguised at legal services but in actuality were to reimburse him for payments to Daniels and perhaps another so as to prevent the women from publicly discussing the liaison. So was it really about sex or Bragg's ambition?
There is a multiplicity of legal systems which exist in the United States. Aside from 50 states, 11 federal circuits, 1 Supreme Court, almost 100 federal district courts, there are thousands of counties in this country. One of the most frustrating components of dealing with the law in this country are the variety of legal systems, the overlap and, the inconsistency.
District attorneys and United States attorneys, for the most part, do adhere to prosecution principles set forth by the American Bar Association, the Rules of Professional Responsibility, and their own guidelines. The law should be applied equally whether the prosecuted defendant is rich or poor, famous, or unknown. In the Trump matter, the question is whether the same prosecution would be brought against Joe Dokes, who would never run for President of the United States?
Is the Trump indictment based upon a search for accountability or is it the conduct of a political extremist bent upon his own political ambitions? The public will decide that for themselves, but a jury of residents from New York County will have the final say, or will they? There is always the appellate courts in New York and, of course, the federal system which undoubtedly will have their say as well.
Stay tuned and keep objective.
Clifford A. Rieders is a board-certified trial advocate in Williamsport.