Another Defense Against Bragg's "Sham" Indictment

Guest column by criminal defense attorney David W. Fischer details all the flaws in Alvin Bragg's case against Donald Trump and offers one argument Trump's attorneys might be overlooking.

Jury selection has begun in the New York City “hush money” trial of Donald Trump, who is charged in a 34-count indictment with falsifying business records of the Trump Organization.  This case is part of a Democrat-led effort to engage in lawfare on various Progressive battlefields. 

To date, Trump’s legal team has done a masterful job in fighting these politicized prosecutions with a variety of clever legal arguments and maneuvers.  Yet even the best attorneys can overlook a compelling weakness in the prosecution’s case.  Trump’s legal team has, without success, made dozens of strong arguments for dismissing his New York case.  In my judgment, however, Trump’s team has yet to make the most compelling argument on behalf of their client. 

Below is the argument that Trump’s team should strongly consider making in his “hush money” trial.

Background

Trump is charged under New York’s Public Law Art. §§ 175.10 and 175.05, which states that “[a] person is guilty of falsifying business records . . . when, with intent to defraud, he . . . [m]akes or causes a false entry in the business records of an enterprise.”  Trump’s alleged wrongful conduct arose from working with his former attorney, Michael Cohen, to pay “hush money” to Stormy Daniels. 

District Attorney Alvin Bragg’s argument for Trump’s guilt is as follows:  Trump caused records pertaining to the “hush money” payment, e.g., invoices, checks, ledgers, etc., which were falsely marked “legal payment,” to be maintained in the Trump Organization’s (“TO”) business records, thus he made false entries in the TO’s business records. 

Trump’s defense, by contrast, argues that the records at issue were not “business records” of the TO because: 1) Trump’s payments to Cohen were made from personal or trust accounts and, hence, involved private records; and 2) the records were, unlike accounting books, not held to reflect the TO’s “condition or activity” and, accordingly, did not constitute “business records” under the statute.

Judge Juan Merchan, the presiding judge, has sided with Bragg.  According to Merchan, the fact that Trump’s checking records were “personal . . . and not the books and records of a business entity is of no legal consequence.”  Merchan reasoned that “[Trump] and the Trump Organization are intertwined to such a degree that it is of no legal relevance” that Trump made payments from personal funds.  Merchan suggested that Trump’s personal and trust records “became” TO records once they were scanned into the corporate records system.

Whether Cohen’s invoices and Trump’s checking documents “became” TO records, in my judgment, is of little significance as to whether Trump violated Art. 175.10.  There is a much clearer answer as to why Trump is innocent of the charges against him.  Let me explain.

The Words of the Statute

Let’s return to the statutory language: “A person is guilty of falsifying business records . . . when . . . he . . . [m]akes or causes a false entry in the business records of an enterprise.”  I have emphasized two words in the statute— “entry” and “the”—because Trump’s team has yet to raise the exculpatory impact of these words.  The word “entry” is a noun that means, per the Oxford Dictionary, “an item written or printed in a diary, list, ledger or reference book.” 

In accounting parlance, an “entry” is “the record of any transaction found in a bookkeeper’s journal.”  The statute at issue, notably, penalizes a false “entry” made “in” a “business record,” which is defined as “any writing or article [or computerized data] . . . kept . . . for the purpose of evidencing or reflecting [a business’s] condition or activity.”  In short, as used in Art. 175.10, the term “entry” literally means a written or typed-in item added to paper or computer records.  An obvious example of “making” a “false entry” is where an accountant inputs phony deductions in a corporation’s QuickBooks account. 

Next, the seemingly innocuous word “the” is quite meaningful in this statute.  Under the statute, “the business records” of an enterprise may not be falsified.  The Supreme Court has observed that the Bill of Rights refers to “the freedom of speech” and “the right to keep and bear arms” to signify the Framer’s desire to protect pre-existing rights. 

Similarly, Art. 175.10 is targeted at individuals who cause the entry of false information into contemporaneously-existing records— “the business records” -- of a company.  Accordingly, to make a “false entry in the business records” means to add information to a paper or computer record that’s intended to deceive others.

The Indictment

Trump faces 11 counts alone based upon Cohen emailing invoices to the TO on various dates in 2017.  These counts allege that Trump “made and caused a false entry in the business records of an enterprise, to wit, an invoice from Michael Cohen . . . marked as a record of the Donald J. Trump Revocable Trust, and kept and maintained by the Trump Organization.”  Notably, the “to wit” language in the indictment serves to limit the prosecution’s allegations, i.e., that the “false entry” in the TO’s records was Cohen’s invoice itself. 

Ironically, the very wording of the Cohen-related counts proves that Trump did not violate Art. 175.10.

Why?  Because Cohen—and thus Trump-- did not make or cause an “entry,” i.e., add an additional item, notation, debit, credit, etc., into “the business records” of the TO.  Instead, Cohen sent invoices from his law firm, which were scanned into the TO’s files.  But you ask: Isn’t submitting false invoices to the TO the making of a “false entry” in the TO’s business records?  No, because Trump is charged with making or causing an entry, i.e., a written or typed-in addition, to contemporaneously existing business records of the TO.

Consider two hypotheticals.  First, suppose that Trump loaded a van full of documents stamped “False Business Records” and shipped them to the TO, which adopted them as TO records.  A violation of the statute?  No, because Trump did not make or cause an “entry” into then-existing TO records. 

Next, suppose that after reviewing the documents, the TO’s accountants altered the company’s books using Trump’s false information.  A crime?  Absolutely, because Trump caused the false entries in the TO’s accounting records.  Bragg’s indictment, in contrast, does not allege that Cohen’s invoices caused the TO to subsequently make false entries into its own records.  Instead, the indictment alleges that Cohen’s invoices were ipso facto false entries in the Trump Organization’s records. 

Bragg, however, confuses the entry of false data into existing paper and computerized TO records—a crime -- with Cohen’s invoices physically entering the TO’s business office.  The latter is a crime only if it caused the TO’s employees to enter false information into the TO’s records.  

That Art. 175.10 deals exclusively with deceptively changing the intrinsic contents of particular records is obvious for another reason: the statute’s title is “Falsifying Business Records in the First Degree.”  According to Cambridge Dictionary, to “falsify” means “to change something, such as a document, in order to deceive people.”  The go-to source for judges, Black’s Law Dictionary, defines “falsify” as “to make deceptive, . . . esp., to tamper with a document, record, etc.”  Accordingly, to “falsify” a record, one must deceptively alter the record itself. 

In short, Trump did not violate Art. 175.10 because his actions did not cause the content of the TO’s then-existing records to be altered.

Trump’s Checks were not False Entries

Bragg's indictment includes 17 counts alleging that Trump falsified TO records by writing “legal payment” in his personal checks, stubs and ledgers.  According to Bragg, Trump filled out the checks and stubs at the Oval Office, which were then forwarded to the TO where they were scanned into the TO’s data system.  Again, not a crime, because Trump, by Bragg’s own admission, made “entries” in private checking records before they became TO records.  And Bragg’s poorly drafted indictment does not allege that Trump’s checking documents subsequently caused the TO to alter its records, which is required to prove a violation of Art. 175.10.

Finally, six counts of the indictment allege that on various dates in 2017 Trump “made and caused a false entry in the business records of an enterprise, to wit, an entry in the Detail General Ledger for Donald J. Trump Revocable Trust . . . and kept and maintained by the Trump Organization.”  These counts are, quite frankly, bizarre, as Bragg specifically alleges (“to wit”) that the falsified entries were made in Trump’s trust account checking records, whereas the falsified records alleged in the indictment were those of the TO.  Once again, there is no allegation that the TO altered its records in reliance on Trump’s trust account ledgers.

Trump’s legal team has identified several weaknesses in Bragg’s case.  However, a compelling argument for Trump’s acquittal is that Bragg's indictment does not identify a single, contemporaneously existing corporate record of the Trump Organization that was altered or changed in any way.  Accordingly, Donald Trump did not violate Art. 175.10.

David W. Fischer, Attorney at Law

Mr. Fischer is a Maryland and D.C.-based criminal defense attorney and the senior partner at Fischer & Putzi, P.A.  Most recently, he defended January 6 defendant Thomas Caldwell, who was acquitted on seditious and other conspiracy charges.