Will Trump go to jail? A Lawyer Weighs In – Rolling Stone

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After the attempted extortion of Ukrainian President Zelensky, criminally obstructing the investigation into Russia, a mob is encouraged to attack the US Capitol to prevent a smooth transition of power resulting in several deaths, keeping sensitive information in the defense of country for its trophy value, and various lesser grifts and grafts over the past six years, Donald Trump is on the cusp of an indictment in New York County for [drumroll here] falsifying business records in the first degree! “First degree” is impressive, but in New York, this crime is designated as a Class-E, nonviolent felony: the lowest level of felony in New York’s grading system (A-1 is the highest for those who are still addicted also in their GPA) .

I’ll start with what you really want to know: Yes, he can go to jail. The maximum penalty for this offense is 1 1/3 to four years. If such a sentence is imposed, he must serve 1 1/3 years before he is eligible for parole, and he will be out, with good behavior, for two and 2/3 years. But there is no mandatory minimum sentence: If convicted, he could be sentenced to some anger management programs. And the trial is at least a year or more. Even with conviction, there will be years of appeals. How long will it take to come out? Long enough for at least half the MSNBC audience to shuffle this mortal coil and Gen Alpha will vote.

So what is this crime and what do prosecutors hope to prove in this case? A person is guilty of this crime when they, with intent to defraud (defraud or defraud), cause a false entry in a business record with the intent to conceal, aid, or commit another crime. In this case, the prosecution is expected to argue that Trump directed or knew that his thug-with-a-law-degree Michael Cohen paid $130,000 to porn star Stormy Daniels to keep her mouth shut about the affair. fling with Trump, and a business records that logged this payment as “legal expenses,” and did so to avoid federal campaign finance laws governing contributions and expenditures to aid the campaign Trump’s presidency. In other words, the payment to Daniels was a campaign contribution/expenditure and the Trump organization’s reimbursement of the payment was an illegal so-called legal expense and it was all done at Trump’s direction, or with his knowledge. Editor’s pick

Granted, all of this sounds a bit wonkier and more indolent than “insurrection,” “riot,” or “treason.” But, to paraphrase the late architect of the Iraq War, Donald Rumsfeld, you don’t prosecute the crimes you want to see, you prosecute the crimes you have. Manhattan District Attorney Alvin Bragg only has the authority to prosecute New York Penal Code crimes committed, in whole or in part, in Manhattan. He has no commission to go around to seek out and destroy evil wherever it rears its head. Further, the prosecution in this case is relatively simple: It involves a few narrow transactions that can be proven with a limited number of witnesses and documents. And Cohen’s hush payment came just weeks before the 2016 election and shortly after the Access Hollywood “grab them by the pussy” tape surfaced. Daniels has been shopping this story for a long time without success; the prosecution will argue that the payment was made to help the Trump campaign at a crucial time. Get it? It is like a criminal Matryoshka doll, with the intent to commit the underlying crime which is within the crime of falsifying business records.

Critics of Bragg’s approach, across the political spectrum, have variously called this use of that law prosecutorial overreach, unprecedented, challenging, and complicated. Like most things in the law though, it’s kind of a yes and a no. The most common objection is that the “underlying crime” sought to be concealed by the false business record is the federal crime of violating election law. So, critics charge, a local DA can only declare New York crimes as underlying crimes. But New York law refers only to the commission, aiding, or abetting of the underlying “crime,” any crime, whether federal or State. Prosecutions had previously been sustained for falsifying business records with intent to mislead an SEC investigation – a federal offense. It’s true that this law doesn’t seem to have been used to date to criminalize violations of federal election law, but no one but Fox News “experts” to say it can’t happen. Related

Bragg also does not have to prove that Trump violated federal election law. It is enough to prove that he intentionally violated it. Here, it’s really the thought that matters.

What will the test look like, in the distant future? Daniels will almost certainly come out, and her bold sex-positivity along with the legitimately sad story of the many times she’s been groped by powerful men will be jurors. Less glamorous but arguably more important is Cohen, whose current hatred of Trump exactly mirrors the intensity of his former loyalty. The rest is probably an assortment of bit players, lots of documents and document keepers, emails and texts; the usual dry and dull stuff that most white-collar-crime cases are made of. Trending

And Trump’s defense? No one knows, and it’s too early to predict. Neither Trump nor his current legal team is actually looking at any legal defenses in any meaningful way. Bloviating in the court of public opinion is easier and less consequential than an actual defense in a real court. The latter won’t be decided until Trump’s team reviews the voluminous documents obtained by the DA — a long and fraught process. But we will likely see Trump in court this week pleading not guilty to his very first felony charge. And that is something.

Ron Kuby is a New York-based criminal defense and civil rights lawyer with nearly 40 years of experience AND a shout-out to the Big Lebowski (1 hour, 41 minutes — Malibu Police Station).

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