In pre-Marxist America, the Sixth Amendment of the U.S. Constitution used to guarantee criminal defendants the right to “be informed of the nature and cause of the accusation” against them. This antiquated provision was interpreted to mean that an indictment had to apprise the accused of the crime charged with such reasonable certainty that the defendant could prepare and present a defense. It was held that no indictment was sufficient if it did not set forth all of the elements that constituted the alleged crime. And, where an indictment described the crime by merely reciting the words of the criminal statute allegedly violated, it nevertheless had to allege facts necessary to bring the case within the statutory definition of the crime.
But now, in the brave new world of woke law enforcement, such bourgeois constitutional niceties appear to have been rendered inoperative. Just ask Manhattan District Attorney Alvin Bragg, who has produced a legally incoherent grand jury indictment of former President Donald Trump.
To be sure the Sixth Amendment is still on the books as is Article 200.50 of the New York Criminal Procedure Law which provides, in relevant part, that an indictment “must contain” a “plain and concise factual statement in each count which … asserts facts supporting every element of the offense charged and the defendant’s … commission thereof with sufficient precision to clearly apprise the defendant … of the conduct which is the subject of the accusation…”
But, judging from the incomplete, impenetrable, and mystifying contents of the Trump indictment, it appears that Bragg has arrested Trump without telling him exactly what crimes he has allegedly committed and how he committed them. Or, to paraphrase the Red Queen in Alice’s Adventures in Wonderland, Bragg’s ground-breaking prosecutorial strategy appears to be “trial first, charges afterward.”
The indictment avers that Trump “hid damaging information from the voting public during the 2016 presidential election,” and that he “orchestrated a scheme with others to influence the 2016 presidential election by identifying and purchasing negative information about him to suppress its publication and benefit the Defendant’s electoral prospects. In order to execute the unlawful scheme, the participants violated election laws and made and caused false entries in the business records of various entities in New York. The participants also took steps that mischaracterized, for tax purposes, the true nature of the payments made in furtherance of the scheme.”
The referenced “negative information” pertains to hush money payments to porn star Stormy Daniels made by Michael Cohen, Trump’s former legal counsel.
(Although the indictment references hush money payments to a Playboy model and a doorman at Trump Tower, the alleged felony charges pertain only to the payments by Cohen to Daniels.)
The indictment avers that Trump reimbursed Cohen for the payments to Daniels and that these reimbursements were falsely entered in Trump’s business records as being for legal services.
For each reimbursement payment, there were corresponding business record entries consisting of a voucher, check, check stub, and invoice. According to the indictment, each one of these documentary entries constituted a felony. Accordingly, by this device, the indictment multiplies the relatively small number of payments to Cohen into 34 felonies.
So it is that each of the 34 felony counts avers that Trump “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 record of an enterprise, to wit” a voucher, a check stub, a check, or an invoice.
But who did Trump intend to defraud? The indictment doesn’t specify. The allegedly false entries were in records maintained by Trump’s business entities. So who was the target of these allegedly false entries? The indictment omits this critical information.
Moreover, as to each count, exactly how was the referenced voucher, check stub, check, or invoice false? Again the indictment doesn’t address this.
And, most importantly, what other crime did Trump intend to commit, aid, and conceal? The indictment doesn’t say even though the averment of this other crime elevated the charges from misdemeanors to felonies.
Was the other crime a violation of federal election law? Was it tax evasion? Was it defrauding the American electorate? Who knows? The indictment doesn’t say and, when pressed on this point by the news media, Bragg grandly announced that he was under no obligation to identify the crime.
By any rational measure, the indictment does not sufficiently apprise Trump of the nature and cause of the charges against him. In fact, it is so vague and incomplete that it is impossible to determine how he allegedly broke the law. Under these circumstances, how can Trump and his lawyers be expected to prepare and present a competent defense?
At its core, the indictment is based on hush money payments to a porn star. So, were these payments illegal? Did Stormy Daniels engage in an illegal scheme by accepting the money? If not, why would Trump’s reimbursement of Cohen for making the payments violate the law and why would Trump be legally obligated to record the reimbursement of Cohen as anything other than for his services as an attorney? Or is Bragg seriously contending that Trump was legally required to record that the reimbursements to Cohen were related to silencing Stormy Daniels? If so, what legal authority is there for requiring such a self-defeating disclosure that would vitiate the very purpose of the payments to Daniels?
The purchase of Daniels’ silence was nothing more or less than a perfectly legal non-disclosure agreement of a type that is common in today’s society. Which is precisely why, despite their most inventive progressive efforts, Alvin Bragg and his brain trust have been unable to produce a legally sufficient and coherent indictment spelling out why the former President of the United States and leading candidate for the 2024 Republican presidential nomination should be prosecuted, convicted, and imprisoned.
George Parry is a former federal and state prosecutor. He blogs at knowledgeisgood.net and may be reached by email at [email protected].