UVA Expert: Trump Indictments, Investigations Require Novel Prosecution

April 6, 2023 By Mary Wood, mmw3v@virginia.edu Mary Wood, mmw3v@virginia.edu

With the Manhattan district attorney’s office announcing the first criminal indictment lodged against a former U.S. president on Tuesday, the legal system is in new territory.

University of Virginia law professor Darryl K. Brown, a former public defender in Georgia, discussed the charges against President Donald Trump and how the prosecution could play out. Brown is the O.M. Vicars Professor of Law and an affiliate of the Law School’s Center for Criminal Justice. An expert in criminal law and procedure, he is the author of the book “Free Market Criminal Justice: How Democracy and Laissez Faire Undermine the Rule of Law.”

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Q. Can you describe the charges and what prosecutors will have to prove to secure a conviction?

A. Trump is charged with 34 counts of falsifying business records under New York law. And he’s charged with the felony version of the offense, which requires that he falsified business records in order to commit, or conceal, some other crime.

Each count arises from a specific business record entry on a specific date between Feb. 14 and Dec. 5, 2017, and they all relate to payments made to “Attorney A,” who is widely known to be Michael Cohen, Trump’s attorney before he took office in January 2017. Basically, the business records relate to payments that Trump made to Cohen, allegedly to pay Cohen back for payments that Cohen made in 2016, on Trump’s behalf, to an “adult film actress.” The prosecution will try to prove that these records are false because they purport to be payments for Cohen’s legal services, when, in fact, they are reimbursements for Cohen having paid $130,000 to the actress –who apparently is Stormy Daniels, although she – like Cohen – is not named in the indictment.

Image of Darryl Brown, looking at the camera

University of Virginia law professor Darryl K. Brown, a former public defender in Georgia, said Trump’s attorneys will likely delay the case with legal challenges and motions. (Photo courtesy of UVA School of Law)

Given publicly available information, it seems quite likely that the prosecution can prove that these business records were intentionally false, but that alone amounts only to a misdemeanor offense.

To prove the felony version of the offense, prosecutors will have to prove also that Trump intended to create these false records to commit or conceal a different crime. And it seems from the indictment – and District Attorney Alvin Bragg’s press conference – that the “other crime” they have in mind is a federal election law offense. Proving Trump’s intent to do that kind of offense will likely be harder – basically, the prosecution is likely to argue that that these payments were campaign expenditures designed to conceal unflattering information coming to light before the 2016 election.

But it now seems that the prosecution might try to prove that at least some of the allegedly false records were intended to facilitate a different crime – a New York state tax law offense. That might be easier for a state prosecutor to prove, compared to a federal election law crime.

Q. How much legal jeopardy is Trump facing?

A. Each of these charges carries a maximum sentence of four years. But realistically, there is probably a good chance that a judge would not sentence Trump to any prison time even if he were convicted of most of these offenses. A probation and fine would not be an unusual sentence for a first-time offender convicted of a nonviolent, fairly low-level felony.

Q. What strategies are Trump’s defense lawyers likely to deploy?

A. Based on Trump’s legal strategies in other contexts, my guess would be that the strategy of Trump’s team will be to delay this prosecution with pretrial challenges to the prosecution for as long as possible by, for instance, challenging the indictment and the grand jury proceeding that issued the charges, and then challenging the prosecution’s pretrial disclosures of evidence.

I’d be very surprised if the Trump defense team ever signaled that they were open to a plea bargain in which, for example, Trump would plead guilty to a few misdemeanor charges in exchange for the rest of the charges being dismissed. That wouldn’t be unusual in a routine case with a more typical defendant, but I’d be shocked to see Trump personally admit guilt even to a minor charge in this case.

Q. How long could it take for this case to play out? What kind of timeline can we expect?

A. How long this will take is anyone’s guess, but it will surely take several months, and I wouldn’t be surprised if it took a couple of years – meaning that Trump might be able to delay any trial in this case until after the 2024 election.

‘Inside UVA’ A Podcast Hosted by Jim Ryan
‘Inside UVA’ A Podcast Hosted by Jim Ryan

Q. This isn’t the only criminal legal matter for which Trump is under investigation. What else could be ahead?

A. This is widely viewed as perhaps the weakest criminal case that Trump potentially could face. Most legal scholars and criminal lawyers, I think, believe that there is probably a stronger prosecution case for potential charges for solicitation of voter fraud under Georgia law, which are now being investigated by the state district attorney in Atlanta. And the U.S. Department of Justice is investigating Trump for potential offenses, such as obstruction of justice, based on his possession of classified documents at his Mar-a-Lago estate after he left office, and his – or his legal team’s – claims to federal officials that they had turned over all classified documents. After those claims, a search of Trump’s estate subsequently uncovered and seized dozens of classified documents still in his possession. But there is very little public information about the status of that investigation or the likelihood of federal charges.

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