Alex Brandon/AP, left. Markus Schreiber/AP, center. Eduardo Munoz Alvarez/AP, right.
- Trump’s Stormy Daniels “hush money” is the subject of a Manhattan grand jury, The NY Times reports.
- Ex-Manhattan financial crimes prosecutors say Trump risks felony-level state records-fraud charges.
- Such charges carry anywhere from no jail to 4 years in prison, but high sentences are rare, they say.
Former President Donald Trump could face charges carrying anywhere from no jail to 4 years in prison if indicted in the Stormy Daniels “hush money” matter in New York, a criminal case now being weighed by a grand jury.
That zero-to-four-years potential sentence would be for a possible top charge of first-degree falsifying business records, a low-level felony under state criminal law, according to former Manhattan prosecutors with expertise in complex financial crimes.
Proving a first-degree charge can be complicated, requiring several layers of proof, the ex-prosecutors said, commenting on the revelation by the New York Times on Monday that grand jurors are hearing evidence in the “hush money” matter.
“These are always tough cases,” said Adam Kaufmann, a former investigations chief for the district attorney’s office, now a partner specializing in white-collar criminal defense at Lewis Baach Kaufmann Middlemiss.
“I think it’s going to be a dog’s fight from beginning to end,” Kaufmann said of the intensity with which he expects prosecutors and Trump’s defense to battle over the case.
The first requirement to proving the highest level of falsifying business records would be showing that records were indeed falsified in the business records of an enterprise.
In Trump’s case, that falsehood would sit in the records of the Trump Organization, where ”hush money” payments were recorded — allegedly falsely — as legal fees to Michael Cohen, Trump’s one-time closest attorney.
“You’re falsifying your records to show that it is a business expense, as if you’re paying a lawyer to do legal work, and this wasn’t that at all,” explained John Moscow, a former senior financial crimes prosecutor with the Manhattan district attorney’s office.
“This was a conduit payment.”
Cohen has admitted being the bag man who delivered $130,000 in “hush money” on the brink of the 2016 election. The money was to quash claims by Daniels, an adult films actor, of having an affair with Trump.
In 2018, the fixer-turned-critic was sentenced to three years in prison after pleading guilty to multiple crimes he’d admittedly committed while working for Trump, including the hush-money payments and lying to Congress on Trump’s behalf.
Cohen told federal prosecutors that Trump later reimbursed him for the hush-money outlay in a series of $35,000 checks disguised as legal fees to Cohen’s law practice. Each check could be a separate “falsifying business records” charge, Moscow said.
“From what we know publicly, the ‘false entry’ would be Cohen’s legal bills” in the Trump Organization records, said Daniel R. Alonso, a former chief assistant district attorney with the Manhattan DA’s office, and now a partner at Buckley LLP.
The next level of proof for a first-degree business-falsification charge?
That would be showing an intent either to commit another crime or to aid in the concealment of another crime, said Alonso.
That other crime could be the federal campaign finance violation of not reporting what was arguably a campaign expenditure — the quashing of Daniels’ explosive story, which was set to go public days before the election, Alonso said.
Prosecutors could also argue that Trump disguised the hush money in order to commit another, separate crime, state tax fraud, by claiming the bogus Cohen legal fees as a business expense.
Whether the “hush money” reimbursement to Cohen is being claimed by Trump on his personal taxes, or by the Trump Organization as a company expenditure, “one way or another he’s intending to cheat the tax man,” Moscow said.
The next hurdle would be linking Trump to the scheme.
That link could come in two places, ex-prosecutors said. One would be from Trump personally signing some of the Cohen reimbursement checks, as alleged by Cohen.
“Trump apparently signed at least one of these checks in the Oval Office,” Alonso said, referring to a revelation in Cohen’s 2019 testimony to Congress.
The second potential link between Trump and the hush-money scheme is more tenuous — Cohen’s secret tape of Trump from September 2016.
On the tape, Trump is heard asking Cohen, “So what do we got to pay for this? One-fifty?” in reference to a pay-off to another woman who was alleging an affair with Trump, Playboy model Karen McDougal.
“It is relevant, in my view,” said Alonso. “It’s pretty incriminating. Unfortunately, it’s a snippet, so we don’t really know the full context.”
Lawyers for Trump and a spokesperson for the district attorney’s office declined to comment on possible charges or the grand jury.
Falsifying business records, even in the first degree, is a low-level, non-violent felony for which people are rarely sentenced to jail, the prosecutors noted.
Still, people do get prosecuted for these low-level felonies all the time, Alonso noted. Even Trump’s ex-CFO, Allen Weisselberg, was sentenced to five months of jail time as part of a payroll tax-fraud scheme that included his falsifying business records.
“The DA shouldn’t overlook one of these cases just because it’s Donald Trump,” Alsonso said.
“It always struck me as incredibly unfair that Michael Cohen is the only person that was charged in this crime,” he added.
“The idea that the bag man is the only one that goes down and the principal gets away scot-free just doesn’t really square with justice.”