Now that Donald Trump has been convicted on all counts by a Manhattan jury in the hush-money case, let’s be clear on the crimes he committed.
Falsification of business records
Trump was found guilty of falsifying business records—specifically invoices, ledger entries and checks relating to the reimbursement of Michael Cohen for paying hush money to Stormy Daniels. The law does not require that Trump falsified the paper work personally. He can have caused someone else to do it.
The underlying conspiracy
What makes the falsifications felonies rather than misdemeanors is that they were done to cover up another crime. According to the jury instructions:
Under our law, a person is guilty of falsifying business records in the first degree when, with intent to defraud that includes an intent to commit another crime or to aid or conceal the commission thereof, that person: makes or causes a false entry in the business records of an enterprise.
The underlying crime Trump was found to be covering up was conspiring to promote his 2016 election by illegal means.
The People allege that the other crime the defendant intended to commit, aid, or conceal is a violation of New York Election Law section 17-152.
Section 17-152 of the New York Election Law provides that 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 conspiracy to promote or prevent an election.
Trump entered into a conspiracy with Michael Cohen and David Pecker of The National Enquirer to suppress stories that might damage his candidacy, especially after the Access Hollywood recording revealed his demeaning attitudes and sexually aggressive behavior toward women. Cohen advanced that conspiracy by paying hush money to Stormy Daniels. Then the Trump Organization reimbursed him for that payment, but falsified the business records to disguise the nature of the payment.
Unlawful means
Promoting Trump’s election, even by paying someone to buy their silence, would not have been illegal in itself. The jury had to agree that the conspirators used some unlawful means to carry out their objectives. They did not have to agree on the specific means used. The jury instructions gave them several possibilities:
In determining whether the defendant conspired to promote or prevent the election of any person to a public office by unlawful means, you may consider the following: (1) violations of the Federal Election Campaign Act otherwise known as FECA; (2) the falsification of other business records; or (3) violation of tax laws.
Here are specific acts that fall into those categories: (1) The payment to Stormy Daniels was allegedly an illegal campaign contribution both by Michael Cohen and the Trump Organization. (2) Michael Cohen allegedly falsified bank records when he applied for a bank loan and wired funds to Stormy Daniels’ lawyer. The Trump Organization allegedly falsified another business record when it issued a phony 1099 to pass off Cohen’s reimbursement as taxable compensation for legal services. (3) Cohen allegedly filed fraudulent tax returns when he over-reported his taxable income for the same reason.
This part is a little confusing, but the smoking gun that revealed the falsification of records was that the organization did not just write Cohen a check to reimburse him for the $130,000 he paid Stormy Daniels. That would be too obvious. They doubled the amount to cover the taxes he would have to pay when he reported it as taxable compensation instead of a reimbursement. Then they generated phony invoices to make it appear that he was earning the higher amount as legal fees.
With all these alleged “unlawful means” to choose from, the jury probably had little difficulty agreeing that some unlawful means had been used to carry out the conspiracy. That’s all the law requires.
Does it matter?
Like most observers, I regard the hush-money conspiracy as less important than the other crimes for which Donald Trump has been indicted:
- trying to overthrow the results of the 2020 election by recruiting fake electors to cast uncertified state votes
- encouraging the assault on the Capitol
- stealing classified documents from the White House
I do think it matters though, since the 2016 election was settled by a small number of votes in a few states. In the wake of the Access Hollywood scandal, when many voters were reconsidering their support for Trump, the successful conspiracy to silence Stormy Daniels could have provided the margin of victory. If the 2024 election is just as close, clearly identifying Trump as a convicted felon may matter to at least a few voters. For most public offices and many other positions of responsibility, it would be automatically disqualifying.
Beneath the Surface 