(Disclosure: I first met Donald J. Trump on July 20, 2016 in Cleveland, Ohio, at the Republican National Convention. I was a
Trump delegate from Hawai’i. I have been admitted to practice in New York for 45 years and wrote law books and legal articles on New York law.
On April 15, 2024, me and my son Noel, a lawyer specializing in criminal defense for military service members, having served in the Marine Corps, sat in a courtroom of the New York County Supreme Court to attend the trial of former President Donald J. Trump in a criminal case, a historical event because this is the first time an ex-President has been indicted.
THE NEW YORK STATUTE
The New York statute § 175.10 allegedly violated by Trump provides:
“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.”
THE CHARGE AGAINST TRUMP
Indictment No. 71543-23 filed in the Supreme Court of the State of New York, County of New York, The People of the State of New York against Donald J. Trump, defendant, alleges:
“THE GRAND JURY OF THE COUNTRY OF NEW YORK, by this indictment, accuses the defendant of the crime of FALSIFYING BUSINESS RECORDS IN THE FIRST DEGREE, in violation of Penal Law § 175.10, committed as follows:
The defendant, in the County of New York and elsewhere, on or about February 14, 2017, with intent to defraud and intent to commit another crime and aid and conceal the commission thereof, made and caused a false entry in the business records of an enterprise, to wit, an invoice from Michael Cohen dated February 14, 2017, marked as a record of the Donald J. Trump Revocable Trust, and kept and maintained by the Trump Organization.”
That is the FIRST COUNT of the indictment. There are 33 other counts, for a total of 34 counts.
The only difference in the other counts is the nature of the document involved.
THE EVIDENCE
The prosecution presented 20 witnesses. The defense presented 2.
Stephanie Clifford, aka Stormy Daniels, reputed to be an actress in “adult” (pornographic) movies testified that she had sexual relations with Trump in the “missionary” position. She also said that she entered into a deal with Michael Cohen whereby she was paid $130,000 so she will not talk about her sexual relationship with Trump. Trump has denied it.
Michael D. Cohen, a former “special counsel” of Trump, admitted giving $130,000 to an intermediary of Stormy Daniels.
The defense presented two witnesses. The defense did not present President Trump.
The prosecution and the defense have rested their case and made their closing arguments on May 28. The jury deliberations started on May 29.
ANALYSIS
The elements of the statute are: (1) existence of business records, (2) they were falsified, meaning that they did not speak the truth, (3) the accused personally did the falsification, not somebody else such as an accomplice or co-conspirator, (4) the falsification was made to commit or conceal another crime, and (5) the accused had criminal intent.
The prosecution failed to establish all these elements beyond a reasonable doubt.
There is no evidence that Trump himself personally “made and caused a false entry in the business records of an enterprise”, namely that he wrote “legal expenses” on the records to disguise the payments to Daniels.
If another person did it, there is no evidence that Trump authorized or caused such other person to do it, or that such person was an accomplice or co-conspirator. The charge is that the “defendant” (meaning Trump) himself “made and caused” a false entry.
There is no evidence that Trump had criminal intent to defraud, that is to conceal the truth about what these payments were actually for. He allegedly signed the checks while he was already President. There is no evidence that he wrote on the checks “Legal expenses”. He did not sign or create the invoices submitted by Cohen nor did he prepare the documents created by the Trump Organization. The checks totaled more than $450,000. Stormy Daniels was paid only $130,000. But none of the checks was payable to Stormy Daniels. She was paid in 2016. The checks were issued in 2017.
The indictment alleges that Trump falsified business records with the “intent to commit another crime and aid and conceal the commission thereof.” This is the alleged motivation. However, the indictment did not state what was the “other crime”.
The indictment is vague and unclear and violates due process of law since an accused must know specifically what he is accused of having committed. Did the defense move to dismiss the indictment for vagueness and ask for a bill of particulars to specify what was the “other crime”?
The thrust of Stormy Daniels’ testimony was that she had sexual relations with Trump in the “missionary” position. “The missionary position is a sex position in which one partner is on top of the other so that they’re face to face.” WebMD. It is called “missionary” because that is how the missionaries performed sexual intercourse when they went around spreading the gospel and had sexual relations with the virgin girls whom they seduced by promising them that they will reach “heaven on earth”.
(In Stormy Daniels’ 270-page book “Full Disclosure,” published in 2018, she describes blow by blow her alleged sexual encounter with Trump on July 13, 2006 at Harrah’s in Lake Tahoe.)
Daniels’ testimony is irrelevant and immaterial to the case. What does it matter to the issue of falsification if their sexual intercourse position was “missionary” or “butterfly”? The issue is not whether Daniels and Trump had sexual relations, but whether Trump committed falsification by signing a check payable to Cohen in 2017 after the election to influence the 2016 election by keeping Daniels quiet before the election.
Did the defense counsel seek to exclude Stormy Daniels as a witness, or object to every question asked of her and move to strike out every answer given?
Michael D. Cohen apparently wanted to seek “revenge” against Trump and to “go down and rot inside” for what he did to him. This is evidence of bias. A biased witness is not credible.
Cohen was convicted of perjury on December 12, 2018 by the U.S. District Court in New York, after pleading guilty to making false statements to the U.S. Congress, for lying on his income tax return, and making false statements to a bank.
Under the rule “falsus in uno, falsus in omnibus” (false in one thing, false in everything) Cohen’s entire testimony should have been excluded. Did the defense counsel move to exclude Cohen’s entire testimony?
Cohen testified that Trump had told him to “Delay, delay, delay” until after the election. None of the checks signed by Trump was for $130,000. Stormy Daniels was not a payee in any of the checks.
Trump did not pay Stormy Daniels and did not want to pay her at all. Cohen took it upon himself to give Daniels’ agents $130,000 from sources other than Trump.
CONCLUSION
You be the judge. Be fair. People ought not to love or hate others that they have not personally met. Your feeling about another human being should be based on direct evidence, not hearsay.
The Oracle of Waikiki predicts that the jury will acquit Trump, giving him an advance 78th birthday gift (Trump was born on June 14, 1946). Or at least one juror will find Trump innocent, resulting in a “hung jury”, since all 12 jurors must vote to convict, and the judge will declare a mistrial.
Atty. Emmanuel Samonte Tipon was a Fulbright and Smith-Mundt scholar to Yale Law School where he was awarded a Master of Laws degree specializing in Constitutional Law. He graduated with a Bachelor of Laws degree from the University of the Philippines. He placed third in the 1955 bar examinations. He is admitted to practice before the U.S. Supreme Court, New York, and the Philippines. He specializes in constitutional issues, immigration law, and appellate federal criminal defense. He was the Dean and a Professor of Law of the College of Law, Northwestern University, Philippines. He has written law books and legal articles for Thomson West and Lawyers Co-operative Publishing Co. He wrote the case notes and annotations for the Immigration and Nationality Act. Listen to The Tipon Report which he co-hosts with his son Attorney Emmanuel “Noel” Tipon. They talk about immigration law, criminal law, court-martial defense, and current events. It is considered the most witty, interesting, and useful radio show in Hawaii. KNDI 1270 AM band every Thursday at 8:00 a.m. Atty. Tipon was born in Laoag City, Philippines. Cell Phone (808) 225-2645. E-Mail: attorneytipon@gmail.com filamlaw@yahoo.com. Website: https://www.tiponimmigrationguide.com
The information provided in this article is for general information only. It is not legal advice. Publication of this information is not intended to create, and receipt by you or reading by you does not establish or constitute an attorney-client relationship.)
What's Up Atty 2024 05 27 Trump criminal case HFC
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