OFFENSES: With what offense does Trump stand charged?

WEDNESDAY, MAY 22, 2024

Times reporters attempt to explain: Could Donald. J. Trump be a convicted felon by the end of next week?

Yes, he plainly could be! In her new column for the New York Times, Michelle Goldberg suggests that many voters may be unaware of that fairly obvious fact:

In a recent New York Times/Siena poll, 53 percent of voters in swing states said it was somewhat or very unlikely that Trump would be found guilty. That included 66 percent of Republicans but also 42 percent of Democrats.

These voters may be overstating Trump’s chances of an acquittal; many legal experts think the prosecution has an edge. A hopeful possibility, then, is that a guilty verdict will come as a shock to many Americans who have checked out of the news cycle, perhaps giving them pause about putting a criminal in the White House. I wouldn’t count on it, though. In several polls, small but significant shares of Trump supporters said they wouldn’t vote for him if he was a felon, but if recent history is any guide, a vast majority of his supporters will easily rationalize away a conviction. Trump’s minions are already working hard to discredit the proceedings...

Will the defendant be found guilty? We can't tell you that.

That said, an acquittal is a whole different thing. Goldberg seems to be skipping past the chances of a hung jury—and she puts her thumb on the scale a tad when she seems to say that Trump supporters will be "rationalizing away a conviction" if they continue supporting Trump in the face of a guilty verdict.

Would such voters be "rationalizing away a conviction?" Or might they be acting on a widely held belief in Red America—the belief that Trump has been subjected to a sham political prosecution inside a (Blue State) kangaroo court?

It's hard to know how voters will react to a guilty verdict. That said, also this:

At this point, how many voters can even explain the criminal offense(s) with which this defendant stands charged?

Trump isn't charged with robbing a bank, or with shooting someone on Fifth Avenue. Such alleged offenses would be easy to picture, describe and define.

By way of contrast, we would guess that very few people can clearly define the offenses with which Trump stands charged. Indeed, we'd say that Protess and Bromwich helped establish that point on the front page of Monday's New York Times.

Protess and Bromwich are the New York Times reporters who have been covering this high-profile Gotham trial. On Monday morning's front page, they attempted to explain (define; describe) the nature of the criminal offense with which the former president stands charged.

In our view, the effort didn't go especially well. Headline included, their front-page report started like this:

As Trump Trial Nears Its End, the Law May Give Prosecutors an Edge

Over the course of a monthlong criminal trial, the evidence against Donald J. Trump has piled up.

A recording of his voice directing a fixer to pay in cash. Phone calls, text messages, emails and a photograph that illustrate the case against him. And a parade of 18 witnesses who together told the prosecution’s story: that Mr. Trump orchestrated a conspiracy to suppress sex scandals during the 2016 election, and after winning, sought to bury a porn star’s story for good. 

The evidence has piled up, they said—evidence that Donald J. Trump "orchestrated a conspiracy to suppress sex scandals during the 2016 election," then "sought to bury a porn star’s story for good."

To their credit, they worked a favorite tabloid-adjacent locution into the very start of their report. Also, though, that opening seemed to represent a tiny stab at defining the (criminal) offense with which the defendant stands charged.  

We'll quickly note their use of the evocative term "conspiracy." That sounds like a type of conduct which is, or certainly should be, illegal. As we'll see, that evocat8ve term comes into play later on in their report, when they set about the task of explaining the felonious conduct with which the defendant stands charged.

Needless to say, the allegedly criminal conduct in question did involve "a porn star!" Midway through their lengthy report, the scribes began their attempt to describe the nature of the alleged criminal offense with greater clarity:

Felony counts of falsifying business records require prosecutors to show that a defendant sought to conceal a second crime. And in this case, the prosecutors have laid out that second crime in graphic detail, arguing that in 2015, Mr. Trump entered into a conspiracy with Mr. Cohen and the publisher of The National Enquirer, David Pecker, to conceal the sex scandals.

Mr. Pecker, the trial’s first witness, testified that he had agreed to suppress several damaging stories on Mr. Trump’s behalf as he ran for president, including a former Playboy model’s story of an affair.

Mr. Pecker told the jury that for $150,000, he bought and buried the model’s story. And on a surreptitious recording Mr. Cohen made on his phone, jurors heard Mr. Trump directing that they repay Mr. Pecker.

Other witnesses—including Hope Hicks, Mr. Trump’s former spokeswoman—underscored the threat that the stories posed to the campaign. She also testified that the candidate was in touch with both Mr. Pecker and Mr. Cohen as the campaign sought to contain the scandals, a recollection corroborated by phone records.

By this time, the reporters have described the evidence in support of the claim that Trump had committed the relatively minor, misdemeanor offense of "falsifying business records." In Red America, voters are routinely told, perhaps correctly, that the statute of limitations had run on any such misdemeanor offense left to stand on its own. 

At any rate, now the reporters went to the place where the rubber meets the road. In paragraph 20 of a 40-paragraph report, they began their attempt to explain the theory according to which Trump had committed a set of 34 felonies—a much more serious set of criminal offenses.

In our view, their attempt to explain that very basic point didn't go especially well. And these are the two reporters for our greatest newspaper who have been in charge of reporting the ongoing trial!

For starters, let's be fair! As they launched their attempt to explain, the reporters laid out the part of the story which everyone knows how to explain. They did so in this passage:

Felony counts of falsifying business records require prosecutors to show that a defendant sought to conceal a second crime. 

To charge this defendant with a felony—with 34 felonies, in fact—the prosecution has to show that he falsified business records in order to conceal a second crime.

That part of the legal theory has been easy for everyone to state. But in this particular case, what is that second crime—the second crime which Donald J. Trump allegedly tried to conceal?

As they continued along, Protess and Bromwich utterly failed to answer that second question. As joined a journalistic cast of thousands in the process.

In the second half of their lengthy report, they kept returning to the matter of the alleged falsification of business records. As they did, they kept failing to elucidate the second part of the legal formula—the nature of the second criminal offense Trump was allegedly trying to conceal.

In the passage we've posted above, the boys seem to identify that second crime. They do so in this persuasive passage:

The prosecutors have laid out that second crime in graphic detail, arguing that in 2015, Mr. Trump entered into a conspiracy with Mr. Cohen and the publisher of The National Enquirer, David Pecker, to conceal the sex scandals.

There's that magic word again—the evocative C-word, "conspiracy."

According to the Times reporters, prosecutors have shown that Trump entered into such an agreement or compact with Michael Cohen and David Pecker. In the language of the reporters, he entered into "a conspiracy with [those Cohen and Pecker] to conceal the [aforementioned] sex scandals."

"Conspiracy" is an evocative term. It sounds like the name of conduct which certainly should be illegal.

That said, the reporters go on from additional sixteen paragraphs after the passage we've posted. At no point do they explain, or even try to explain, what was illegal—what was criminal—about the "conspiracy" they describe in paragraph 20.

It's hard to show you what doesn't exist. For that reason, who can't show you the passage where Protess and Bromwich fail to cite the specific statutes with make that "conspiracy" an example of illegal / criminal conduct.

Full disclosure! There seems to be little doubt that Trump and Pecker did, i fact, set out to conceal that "Playboy model's" story. 

There seems to be little doubt that some such plan was executed. But by now, a fundamental point has been explained a million times:

On its face, it isn't illegal to enter into an NDA (a non-disclosure agreement) of that particular kind. That's been declared a million times, by legal analysts from Blue America as well as by those from Red.

That's been declared a million times! That said, what made this particular conduct illegal? What made it an alleged second crime—a second crime which Donald J. Trump was attempting to conceal?

As they boys drone on and on, they fail to return to that basic point. In that failure, they fail to explain the legal theory at the heart if this case—the legal theory which turns a relatively minor set of (alleged) misdemeanor, on which the statute of limitations may have run, into a set of 34 felony crimes.

Trump hasn't been charged with robbing a bank. He hasn't bene charged with shooting an innocent person right out there in the street.

He has been charged with 34 felonies. But what is the nature of those alleged offenses? 

In their front-page report two days ago, Protess and Bromwich give the impression of answering that amazingly basic question. They give that impression, but they accomplish no such task. 

In fairness, Protess and Bromwich joined a long list of major reporters who have committed the journalistic offense of playing fast and loose with this amazingly basic element of the ongoing criminal trial. Out in Red America, voters have been told about this repeated failure again and again and again.

Out in Red America, will many voters disregard a possible guilty verdict? If they do, will they be "rationalizing" the verdict away—or will they be reacting to the various things they've been told about the trial by Red America's major news orgs?

Over here in Blue America, major journalists have had a hard time explaining the basis on which this defendant has been charged with 34 felony counts. On Monday, Protess and Bromwich joined this group, or so we're telling you here.

In our view, Trump has been involved in scams all through his adult life. It's also true that our major mainstream news orgs have engaged in scam-adjacent journalistic stampedes again and again and again.

Tomorrow, we'll offer a few more examples of the failed attempts to explain the basis on which this defendant stands charged. Do such failures stem from "liberal bias?" Or could they simply represent the limits of human capability?

We humans are surprisingly skilled at building tall buildings—tall buildings which don't fall down. As a general matter, do we possess the types of skills which are required to explain a matter like this?

Tomorrow: The Washington Post attempts to explain

Friday: What Red America has heard