Questioning an "Advisory Opinion" About the Possible Stormy Daniels Trump Prosecution

Did the feds really decline to prosecute the conduct that elevates the potential charge to a felony? I'm not so sure! And even if they did, so what?

Above: Is this man a victim of a horrible legal travesty? I . . . have my doubts. Photo by Michael Vadon.

At Advisory Opinions, an excellent legal podcast from The Dispatch, host Sarah Isgur is literally (by her account) losing sleep over the potential indictment of Donald Trump over the falsification of records to cover up the payment to Stormy Daniels.

Why is Isgur so upset?

It must be admitted that there are quite a few problems that she and David French identify with this potential charge—issues that I will not address in this newsletter, but which are genuinely problematic. These include: statute of limitations issues revolving around the concept of “equitable tolling”; the difficulty of attributing a campaign motive to payoffs covering up adulterous affairs (see John Edwards); and the fact that Alvin Bragg’s predecessor declined to bring charges on this basis. All of that is fair game.

But one of French and Isgur’s biggest problems with the potential indictment—something they return to again and again and again, and which appears to be at the center of a lot of Isgur’s discontent—seems to be based on two mistaken assumptions: 1) that the federal government declined to bring charges on the basis of the conduct that elevates the crime to a felony, and 2) that the feds’ decision not to charge Trump with campaign finance violations reflects their uncertainty that Trump committed that crime.

First, as I will explain, Isgur and French—in my view mistakenly—assume Bragg is necessarily charging a felony based on the argument that Donald Trump was trying to cover up his own commission of a campaign finance violation. But why can’t the crime that Trump was trying to cover up be Michael Cohen’s crime?

What’s more, Trump and Isgur seem to assume that the feds declined to prosecute Trump for campaign finance violations due to doubts that he was guilty. The record indicates otherwise, as I will discuss.

When you dispel these assumptions, I think a lot of the concerns French and Isgur have about the simply outrageous!!1! nature of this potential prosecution vanish in a puff of smoke.

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Isgur and French’s Repeated Claim that the Feds Declined to Charge the Exact Conduct that Makes the New York Crime a Felony

Over and over in their podcast, Isgur and French say that federal prosecutors specifically declined to bring charges based on the conduct that elevates the relevant potential charge against Trump to a felony.

Let’s look at the language of the applicable New York statute, which defines the crime of “[f]alsifying business records in the first degree” in this way:

A person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.

Falsifying business records in the first degree is a class E felony.

French and Isgur seem to assume—I believe mistakenly, for reasons I will explain—that the reference to “another crime” in this context is necessarily a reference to Donald Trump’s commission of federal campaign violations. Over and over in their podcast, they emphasize that the federal prosecutors in the Southern District of New York (SDNY) never brought a case against Trump on the facts of the Stormy Daniels payoff. Thus, they repeatedly argue, one of the key problems with Alvin Bragg’s potential indictment is that a state prosecutor is trying to elevate a charge based on conduct that federal prosecutors never charged.

Isgur says at 20:00:

ISGUR: It is not clear that a New York state prosecutor can try a federal crime, which is what they’re going to have to do here, basically. They will not be convicting him of that federal crime, but they will have to prove all the elements of that federal crime in order to reach the state crime. And there’s plenty of precedent out there that if the state ties their crime to a federal crime, basically there needs to be a federal conviction of some kind. . . . The feds here specifically declined to bring that case.

At 25:30, French says:

FRENCH: Here’s a really important factor: Southern District of New York never brought this case.

ISGUR: Southern District of New York as in the federal U.S. Attorney’s Office declined to bring this.

FRENCH: Never brought this case. So then you’re in a situation where the Manhattan D.A. would be in a position where the strongest part of his case, which is absolutely time-barred, is rendered stronger by a federal felony that was never prosecuted and that also the new felony prosecution that he’s bringing might also be time barred. So there’s your double bank shot. So it’s bank shot number one is: wait, no one prosecuted this alleged federal felony, and then bank shot number two is can you prosecute it anyway with the five-year statute of limitations?

At 35:18, we get this exchange:

ISGUR: You are in a messy, messy part of federal campaign finance law. Does a state prosecutor have any business —

FRENCH: Right.

ISGUR: Prosecuting the elements of a federal crime where DOJ has chosen not to do so. And I think there’s a problem there for the state prosecutor as well.

At 39:50, French says:

FRENCH: You’re going to hear people who are countering our argument. And what they’re going to say . . . and The Times has a really good report where they went back and they looked at more than a hundred examples where the falsification of business records was turned into a felony by connecting it to a larger felony. And they’re going to say it’s very common to turn the falsification of business records misdemeanor into a felony under New York state law. This is a common way in which white collar criminals are prosecuted. All of this is completely normal.

OK, from a 30,000 foot view it is not abnormal to turn a falsification of business records case into a felony prosecution. But you have to look at what was the underlying felony? And what I’ve yet to see is an example of a falsification of business records case turned into an underlying felony through a federal, not state, offense that was never indicted nor prosecuted. That’s the difficult connection here. . . . So even if you take my position that in 2018 the feds had a credible case for indicting him—I mean, they did it with John Edwards—they didn’t. They didn’t.

Throughout the podcast, the topic of the feds declining to prosecute comes up again and again. French says at 48:17: “if the argument is, he falsified business records in furtherance of a federal crime that was not prosecuted by the feds, I think that is an unwise prosecution, not an assault on the rule of law.” At 51:10 Isgur decries as “horrible” “this building a state case which relies on a federal case which we’re not even sure you can do on a federal case that the feds declined to prosecute.”

But what is the case that the feds supposedly declined to bring? French and Isgur appear to assume that case is a case against Donald Trump for campaign finance violations. In other words, they assume (without ever explicitly analyzing the question) that the crime that Trump was trying to conceal—the crime that elevates the misdemeanor to a felony—has to be a campaign finance crime that was committed by Donald Trump. And since the feds declined to bring that case, they think the feds’ inaction somehow has meaning for Bragg’s possible indictment. (As I argue below, they also fail to make clear specifically why that should be the case.)

But why can’t the crime that Trump was trying to conceal be Michael Cohen’s campaign finance violation?

I see no reason it couldn’t be. And that has consequences for French’s and Isgur’s assessment.

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The Text of the Statute: “Another Crime” Encompasses “Another’s Crime”

The text of the applicable New York felony criminal statute quoted earlier covers a defendant’s falsification of records to conceal another person’s crime as well as his own. This conclusion follows from a straightforward textual analysis of the statute.

Recall that the language of the statute elevates a defendant’s fraudulent falsification of records to a felony “when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.” The language “another crime” in the statute obviously encompasses a crime committed by another person. How do we know this? Well, you can’t “aid” your own crime. You commit your own crime; you can only “aid” another person’s crime. So the phrase “another crime” in the statute necessarily includes a crime committed by another person. Put another way, “another crime” includes “another’s crime.” And if the statute covers falsification to aid another’s crime, it also covers falsification to conceal another’s crime.

Now, I caution you that I am a state prosecutor in California, not New York (and I am of course speaking on my own behalf and not on behalf of my office, which seems to disagree with me about almost everything—but that’s another story). I have not researched the cases that interpret this law. Perhaps they import a requirement into the law that is not obvious from the text.

But based on the text alone, fraudulent falsification of records done in part to conceal another person’s crime satisfies the elements of the statute.

This fact means that we can dispense with all the concerns over how Bragg may be elevating the falsification of business records to a felony based on a charge DOJ never brought. DOJ did bring the campaign finance violation charge against Cohen. Cohen was not just charged with, but also convicted of a campaign finance violation. From the press release announcing his plea agreement:

The plea was entered followed the filing of an eight-count criminal information, which alleged that COHEN concealed more than $4 million in personal income from the IRS, made false statements to a federally-insured financial institution in connection with a $500,000 home equity loan, and, in 2016, caused $280,000 in payments to be made to silence two women who otherwise planned to speak publicly about their alleged affairs with a presidential candidate, thereby intending to influence the 2016 presidential election. COHEN pled guilty today before U.S. District Judge William H. Pauley III.

. . . .

On February 14, 2017, COHEN sent an executive of the Company (“Executive-1”) the first of his monthly invoices, requesting “[p]ursuant to [a] retainer agreement, . . . payment for services rendered for the months of January and February, 2017.” The invoice listed $35,000 for each of those two months. Executive-1 forwarded the invoice to another executive of the Company (“Executive-2”) the same day by email, and it was approved. Executive-1 forwarded that email to another employee at the Company, stating: “Please pay from the Trust. Post to legal expenses. Put ‘retainer for the months of January and February 2017’ in the description.”

Throughout 2017, COHEN sent to one or more representatives of the Company monthly invoices, which stated, “Pursuant to the retainer agreement, kindly remit payment for services rendered for” the relevant month in 2017, and sought $35,000 per month. The Company accounted for these payments as legal expenses. In truth and in fact, there was no such retainer agreement, and the monthly invoices COHEN submitted were not in connection with any legal services he had provided in 2017.

Now, I should note that Isgur and French cast considerable shade on the importance of Michael Cohen’s plea agreement, arguing essentially that it is of no significance because, hey, it’s a plea agreement, and defendants will plead to anything to avoid worse problems. At 29:57, Isgur and French say:

ISGUR: But the entire premise of these prosecutions, by which I mean: John Edwards; Michael Cohen’s plea agreement . . . well, let’s asterisk that. It was an agreement.

FRENCH: Mm-hmm.

ISGUR: Michael Cohen agreed to plead to something in order to not deal with a whole bunch of other stuff.

FRENCH: And his plea agreement is not legal precedent.

ISGUR: That’s right!

OK, but 1) French’s and Isgur’s views on plea agreements notwithstanding, plea agreements can and do result in legally valid convictions, and 2) the fact that federal prosecutors charged Cohen to begin with undermines Isgur and French’s repeatedly stated assertion that SDNY “never brought this case.” If “this case” refers to Michael Cohen’s campaign violations, federal prosecutors most assuredly did bring that case — and what’s more, they obtained a conviction. So when Isgur says there is “plenty of precedent out there that if the state ties their crime to a federal crime, basically there needs to be a federal conviction of some kind” . . . well, guess what? There has been.

You can discount Cohen’s conviction all you like, but no matter how passionately you try to argue that a conviction based on a guilty plea doesn’t count, under the law it’s still a conviction.

For example: let’s assume a law elevates your punishment for a current robbery if you have suffered a previous conviction for robbery. Further assume that the prosecution presents evidence that you previously pled guilty to a robbery. You, and Sarah Isgur, and David French, and anyone else can all team up and argue until you are all blue in the face that the plea shouldn’t matter because people will plead guilty to anything. The judge’s response will be something along these lines: that’s nice. If you think the previous conviction was invalid for some reason, you can bring a separate proceeding to seek an order vacating it. But until that conviction is vacated, it remains a valid conviction and I will be enhancing your sentence.

And so it is with Michael Cohen’s conviction for campaign finance violations. Whether through a plea or a trial, it’s a conviction.

There are, of course, limits to the significance of Cohen’s conviction. It does not establish that Donald Trump is guilty of federal campaign violations. It does not establish that Trump’s intent in falsifying records included a desire to cover up Cohen’s crime.

But it does answer Isgur’s claim that “there’s plenty of precedent out there that if the state ties their crime to a federal crime, there needs to be a federal conviction of some kind.” And it also refutes French’s and Isgur’s repeatedly expressed idea that the feds declined to bring a case regarding the conduct that, in New York, elevates the records falsification misdemeanor to a felony.

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Why Does the Feds’ Declination of a Trump Prosecution Matter, Exactly?

Here is where I ask: what is the alleged significance of the feds’ failure to charge Trump with campaign finance violations, anyway? Why do Isgur and French think that is so important?

Are Isgur and French saying that by not charging Trump, the feds thereby signaled that they didn’t think the payoff to Daniels was really a campaign contribution? No; we know they did, because they charged Cohen with the crime of making an illegal campaign contribution.

Or are Isgur and French saying that by not charging Trump, the feds thereby signaled that they didn’t think they could prove Trump had the intent to commit a campaign finance violation, even if Cohen did?

If that’s the claim, then there are at least two problems with it.

First, Trump didn’t even have to have the intent to commit a campaign finance violation under the New York statute. He just had to have intended to cover it up. Under the analysis we just performed, the campaign finance violation could in theory have been committed by Cohen and Cohen alone, and Trump could have come along after the fact and tried to conceal the payoff for reasons which “include[]” a desire to cover up Cohen’s crime. That’s not what happened, of course; Trump was intimately involved in all of it. But all he has to have done is intended a coverup of another’s person’s crime—a crime of which that other person stands duly convicted in federal court.

But there is a second problem with this claim: the feds didn’t decline to charge Trump because they thought he was not guilty of a campaign finance violation. The best reporting I have found on the topic says that federal prosecutors declined the Trump prosecution for entirely different reasons. And this is a problem French and Isgur fail entirely to discuss.

It turns out that the Trump DOJ declined to prosecute Trump because, well, the rules didn’t allow them to prosecute a sitting president. And the Biden DOJ declined to prosecute Trump . . . mostly because he had recently done even worse stuff.

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Why Did Federal Prosecutors Decline to Indict Trump? Hint: It Wasn’t Necessarily Because They Thought He Was Not Guilty

Isgur and French make so much hay out of the fact that DOJ didn’t prosecute Trump for campaign finance violations, it’s rather astounding that they don’t discuss why DOJ didn’t prosecute Trump. The implication of their repeated invocation of the feds’ declination is that the feds didn’t think they had a good enough case.

The reality is a little more nuanced.

The reasons that the Trump and Biden Departments of Justice declined to prosecute Trump for campaign finance violations are different, for the obvious reason that during the Trump DOJ, Donald Trump was . . . the president.

The Trump DOJ Wasn’t Allowed to Prosecute Trump for Anything

As you are no doubt aware, the Department of Justice has a rule, derived primarily from opinions from the Office of Legal Counsel written during the Nixon and Clinton years, that the current president cannot be prosecuted. In short, the Trump DOJ never seriously confronted the decision whether to prosecute Trump—because the Trump DOJ was not allowed to prosecute him while he was president, under DOJ policy. (Keep in mind, though, that DOJ did choose to bring a charge against Michael Cohen for exactly the same behavior, showing that they believed the conduct in question violated campaign finance laws.)

As CNN reported in January, a book by Elie Honig explains the reasons Trump was never charged for the Stormy Daniels payoff.

Prosecutors from the Southern District of New York developed significant evidence against Trump when they charged his former attorney Michael Cohen in 2018 over a hush money scheme paying two women claiming affairs with Trump, including adult film star Stormy Daniels, Honig writes. But prosecutors did not consider charging Trump at the time because of longstanding Justice Department guidance that a sitting president cannot be indicted.

Honig explained that the prosecutors had prepared a long indictment that explained in detail Trump’s role in the payoff, and the fact that he was likely criminally liable. Higher-ups at Bill Barr’s DOJ stripped the indictment of that language:

Honig writes that his account of the 2018 Cohen indictment is based on interviews with more than a half-dozen people directly involved in the federal prosecution of Cohen.

Prosecutors from the Southern District of New York had prepared a draft indictment of Cohen that included “exhaustive detail of Trump’s central involvement in the hush money scheme,” according to Honig.

“The draft Cohen indictment was a full accounting, running over fifty pages in one iteration – essentially both a formal indictment of Cohen and a public excoriation of Trump, only without charges attached,” Honig writes. “The SDNY’s draft indictment left no doubt: Trump wasn’t merely a bystander or an unwitting beneficiary of the campaign finance crime. He was the driving force behind the scheme, and likely criminally liable for it.”

But nearly all of the details about Trump were scrubbed from the indictment by Justice Department leaders.

Why did they do that? Well, I suspect it may have something to do with the fact that Bill Barr was a political hack, of course. But his subordinates justified the order on the grounds of “fairness”:

Honig writes that when the draft indictment detailing Trump’s conduct was sent to Justice Department headquarters in Washington, it was rejected by Ed O’Callaghan, DOJ’s principal deputy associate attorney general.

“In DOJ’s view, the Trump-specific language was superfluous and threatened to harm the reputation of an unindicted party,” Honig writes. “It would be unfair to Trump, and potentially damaging more broadly to the country, to effectively accuse the sitting president of a crime without affording him a formal mechanism to defend himself.”

It’s worth noting that the U.S. Attorney at the time of Cohen’s prosecution, Geoffrey Berman, has “suggested that prosecutors did not have the evidence to bring a successful case against Trump.” But Berman was recused from the Cohen case in any event, so it’s not certain that opinion carries a lot of weight—especially in the context where prosecutors could not seriously confront the possibility of charging Trump anyway, because of the distorting effect of the DOJ rule against prosecuting sitting presidents.

This is not the first time that the DOJ rule has distorted prosecutorial decisionmaking. Another example occurred when Robert Mueller declined to give an opinion as to whether there was a prosecutable case against Trump for obstruction of justice relating to the Russian collusion investigation.

Mueller, however, refrained from recommending prosecution, saying that there were “difficult [legal] issues that would need to be resolved,” in order to reach a conclusion that the crime of obstruction of justice was committed by Trump.

Factoring into his decision not to weigh in on prosecution, Mueller wrote, was an opinion issued by the Office of Legal Counsel finding that “the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions” in violation of “the constitutional separation of powers.”

“Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the President’s conduct,” Mueller wrote.

Mueller emphasized, however, that his analysis of the evidence did not clear the president of obstruction. Said Mueller: “[I]f we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment.”

But Mueller’s prosecutors did believe they had a prosecutable obstruction case.

Prosecutors working for Special Counsel Robert Mueller concluded last year that they had sufficient evidence to seek criminal charges against President Donald Trump for obstruction of justice over the president’s alleged pressuring of then FBI Director James Comey in February 2017 to shut down an FBI investigation of the president’s then national security adviser, Michael Flynn.

Privately, the two prosecutors, who were then employed in the special counsel’s office, told other Justice Department officials that had it not been for the unique nature of the case—the investigation of a sitting president of the United States, and one who tried to use the powers of his office to thwart and even close down the special counsel’s investigation—they would have advocated that he face federal criminal charges.

So why didn't Mueller say so? Because of the distortion of justice caused by the DOJ rule against prosecuting sitting presidents. Because DOJ could not prosecute Trump while in office, and because it's generally considered unfair for prosecutors to publicly air unflattering facts from investigations of charges they have decided not to bring, Mueller decided it would be unfair even to opine whether Trump ought to be prosecuted. Since he could not be prosecuted while serving as president, he would have no chance to clear his name, Mueller reasoned.

And after Mueller refused to say that his prosecutors felt there was a chargeable crime, Trump's partisan hack of an Attorney General concluded in a weekend that there was insufficient evidence to bring a charge he had already decided months earlier he would never bring. When Barr testified about his decision, it was clear he was unfamiliar with the underlying facts. That's because they didn't matter to him.

Isgur and French mention DOJ’s rule in passing, but really only in connection with the argument over whether the statute of limitations should be equitably tolled during Trump’s presidency. But at other times they seem to forget that the Trump DOJ thought itself lacking in authority to prosecute Trump to begin with—such as when French says (as quoted above): “even if you take my position that in 2018 the feds had a credible case for indicting him—I mean, they did it with John Edwards—they didn’t. They didn’t.” Yeah . . . because they couldn’t.

The Biden DOJ Decided Not to Prosecute Trump Because He Had Done So Much Worse Stuff with January 6

According to Honig’s book discussed above, prosecutors ended up discussing charging Trump with the campaign finance violations after he was out of office. But they declined to do so—not because they didn’t have the goods, as recused former USA Berman had claimed, but for political reasons . . . including the fact that Trump had done much worse stuff in the interim:

Days before then-President Donald Trump left the White House, federal prosecutors in New York discussed whether to potentially charge Trump with campaign finance crimes once he was out of office, according to a new book from CNN senior legal analyst Elie Honig.

. . . .

With Trump about to leave office in January 2021, however, Audrey Strauss, the acting US attorney, held multiple discussions with a small group of prosecutors to discuss its evidence against Trump. They decided to not seek an indictment of Trump for several reasons, Honig writes, including the political ramifications and the fact that Trump’s other scandals, such as efforts to overturn the 2020 presidential election and the January 6, 2021, insurrection, “made the campaign finance violations seem somehow trivial and outdated by comparison.”

It reminds one of how Trump gets away with saying virtually every outrageous thing he says: he just says something worse the next day. Nobody can ever settle on one single story to focus on, because he soon gives them a more inflammatory quote that diverts their attention. And they can’t focus on that one, because the next day he says or does something even more outrageous. As the shampoo commercial used to say: And so on. And so on. And so on. Turns out Big Media is not the only institution sucked into this merry-go-round of moral depravity. The Department of Justice got sucked in too.

Isgur’s A Man for All Seasons Hyperbole

If you listen to the podcast, you’ll quickly get the idea that Sarah Isgur has convinced herself that the potential prosecution of Trump is a “horrible” example of “tyranny” in which a prosecutor is “making up charges” to get at Trump because he’s a bad guy. In light of what I have discussed above, this all seems highly overwrought. Again: federal prosecutors thought Trump was guilty; they couldn’t prosecute him while president; they thought he had done worse stuff (like January 6) by the time Biden was in office; and there actually was a conviction as to the conduct Trump was allegedly trying to conceal, thus satisfying New York law. This is hardly the travesty Isgur imagines it to be.

And she really does seem to think it’s a mockery of justice. I’m not making up the quotes above. At 41:31, Isgur compares Bragg’s possible prosecution to “tyranny” and cites A Man for All Seasons for the famous quote about cutting down all the laws to get at the Devil. She says: “I am very upset, like really truly, it is bothering me and causing me to lose sleep, I’ll be very honest . . .” because many lawyers are arguing that: 1) going after Trump for this is like going after Al Capone for tax evasion, or 2) what House Republicans are doing worse by trying to meddle in the investigation, or 3) Trump had it coming, even if it’s a sketchy case or maybe the statute of limitations had run. Isgur says it’s not like Al Capone because Al Capone was actually guilty, but here you don’t have a dead-to-rights felony on Trump. She says that what the House Republicans are doing, while bad, is not worse than Bragg’s allegedly pending indictment, because Bragg is suspending the rule of law and due process to get a bad guy. And that brings us to her response to #3, wherein we get a reference to A Man for All Seasons, and how it is tyranny to bend the law to get a bad guy, and how it’s like the Nazis marching in Skokie, because we are supposed to protect the bad guys’ rights (like Trump or the Nazis) to make sure we all have rights. She says with the possible Trump indictment, prosecutors are “bending and changing and re-jiggering laws all to get to one person.” The premise of the references to Thomas More is that the prosecution is twisting justice to target someone they don’t like. She likens what is happening to Trump as Bragg “making up charges.” She calls it “trumped-up stuff.”

To be fair, Isgur later clarifies that she is more upset at people who believe the prosecution is invalid but that Trump has it coming anyway. And I agree with her on that point. But she really seems to deeply feel the whole potential prosecution is not just a stretch but a horrific undermining of the rule of law. And I think this view is based on some of the bad assumptions I have tried to debunk above.

I can only hope that she reads my piece, realizes it’s not as bad as all that, and starts sleeping better again. Because she’s pregnant, and a pregnant mom needs her sleep. Congratulations, Ms. Isgur, and relax. The rule of law is going to be just fine.