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A key element of Donald Trump’s criminal trial in New York is whether prosecutors can successfully tie the specific counts against him — that he doctored financial records of his companies — to a more lurid election-related conspiracy for which he is not facing charges.
The trial, scheduled to begin April 15, centers on 34 counts against Trump of falsifying business records in the first degree, a felony that could result in his serving time at New York’s jail complex on Rikers Island or in state prison.
The case has drawn intense scrutiny — in part because it represents the first-ever criminal prosecution of an ex-president. It also involves $130,000 paid to an adult film actress ahead of the 2016 presidential election to keep her quiet about an alleged sexual encounter with Trump years earlier.
While some legal observers consider the charges a reasonable use of New York’s penal code, others view them as a legally shaky effort to tie business fraud to attempts to keep information about Trump’s behavior hidden from voters.
Manhattan District Attorney Alvin Bragg has defended his approach by saying the allegations against Trump are not out of the ordinary in the nation’s financial capital and calling the charges the “bread and butter of our white collar work.” Cases include instances of business owners and companies falsifying records to evade insurance payments, cover up theft and improperly secure federal loans, including from pandemic-relief programs, according to Bragg’s office.
Across New York state, prosecutors filed charges of first-degree falsifying business records 11,663 times in cases arraigned in state and superior criminal courts from 2014-2023, according to records provided by the New York State Office of Court Administration. The Manhattan district attorney’s office brought those charges in 437 cases in the decade preceding Trump’s indictment in April 2023, prosecutors said in a court filing in November. In many instances, there were additional, more serious charges included in the indictments.
In Manhattan, there were 42 cases in which falsifying records was the top charge — as it is in Trump’s case — during roughly the same time period, according to data from the New York State Division of Criminal Justice Services.
Bragg critics contend that he has stretched legal doctrine in a way that could make it difficult to persuade jurors to convict Trump. In New York, falsifying business records is a misdemeanor unless prosecutors can prove the defendant acted with an intent to commit another crime, in which case the charge can be elevated into a Class E felony, the state’s lowest-level felony count.
According to the New York indictment, Trump sent $420,000 to his then-lawyer Michael Cohen as reimbursement for paying off Stormy Daniels, an adult film actress whose real name is Stephanie Clifford. The money — $130,000 for Daniels and the additional funds to Cohen — was paid in a dozen installments and falsely recorded in the Trump Organization’s internal documents as a legal retainer.
Prosecutors have suggested that the overall scheme was a potential violation of federal and state election laws, as well as state tax laws. But Trump has not been charged with any other crimes in the case, making the felony counts for falsifying business records more unusual.
“If we prosecuted every corporation in New York that had a false filing … or deduction for a felony, we’d have lots of prosecutions and that doesn’t generally happen,” said Daniel Hochheiser, a New York criminal defense attorney.
Trump’s attorneys have said the payments to Daniels were legal and made to protect Trump’s family from an embarrassing disclosure. Trump, the likely Republican nominee to challenge President Biden in the November election, has accused Bragg, a Democrat, of pursuing legal action against him for political reasons.
Renato Mariotti, a former federal prosecutor on financial fraud cases, criticized Bragg last year when the charges were unveiled, saying the district attorney had failed to specify the other crimes that had facilitated Trump’s alleged business records fraud. In a recent interview, Mariotti gave Bragg credit for providing more details in court filings since then.
In February, New York Supreme Court Justice Juan Merchan rejected Trump’s attempt to get the case thrown out on the grounds that the charges were legally insufficient. Merchan ruled that three of Bragg’s examples of other crimes that Trump intended to commit by concealing payments to Cohen were “legally sufficient” to bring the felony charges against him.
Those examples were:
- the amount of Trump’s payments to Daniels exceeded federal campaign contribution limits;
- the payments violated state election laws because they aimed to help Trump influence the 2016 election through unlawful means;
- the payments to Cohen violated state tax laws because Trump paid him more than the $130,000 he was due to be reimbursed to compensate him for having to pay taxes on the money.
Mariotti said it still could be difficult to get jurors to agree that Trump should be convicted.
“I do believe that Bragg is going to be leaning very heavily on these other crimes, particularly the campaign finance crimes, and characterizing it as an attempt to interfere in the 2016 election,” he said. “Although there is evidence of another crime, and that’s something that’s going to have to be proven out, ultimately that’s not what Trump is charged with.”
Former Obama White House ethics adviser Norm Eisen, a Trump critic and prominent supporter of the four felony cases against him, said Bragg’s success in keeping the case on track despite Trump’s attempts to have it dismissed demonstrate the legal legitimacy of the charges.
“This is the most important books-and-records falsification case in the history of New York,” said Eisen, who served as co-counsel for the House Judiciary Committee during the first presidential impeachment of Trump in 2019. “A series of court successes by the D.A. and his team have made clear that these are 34 very serious felony counts of election interference.”
In a court filing in November, Assistant District Attorney Christopher Conroy said the Manhattan prosecutor’s office “very frequently” brings first-degree charges of falsifying business records. He cited a handful of cases before Bragg took office that involved defendants who were accused of falsifying records with the intent of violating federal laws.
Some of the cases illustrated how falsification charges are typically included in prosecutions involving more serious charges.
Two involved international banks — UniCredit Bank in 2019 and BNP Paribus in 2014 — that were the subjects of extensive federal and state investigations on allegations that they processed financial transactions that violated U.S. economic sanctions against doing business with foreign countries. Those countries included Cuba, Iran, Libya, Myanmar, Sudan and Syria.
Both banks pleaded guilty to violating sanctions, as well as to lesser crimes, including falsifying business records, and agreed to pay hundreds of millions of dollars in fines. Authorities said the banks doctored records, including stripping information that could identify the foreign entities, to disguise financial transactions.
More recent cases filed during Bragg’s tenure demonstrate the same point.
Last year, Bragg charged the owner of a drywall company with insurance fraud, a Class B felony, and conspiracy, as well as falsifying business records, for allegedly defrauding the state of $3 million in insurance premium payments related to workers’ compensation and disability benefits.
Also last year, Bragg won the convictions of two men on charges of falsifying business records for their involvement in an $18 million insurance scam in which they underreported their payrolls to reduce insurance payments. In the same case, two other men were convicted of insurance fraud in the first degree, a Class B felony.
Legal analysts are divided over whether Trump would get jail time if he is convicted. Under New York law, a nonviolent Class E felony carries potential sentences of probation or 1 1/3 to 4 years in state prison.
Some analysts said Trump’s age, 77, and the lack of a prior conviction would likely preclude a jail sentence.
New York attorney Matthew Galluzzo, also a former Manhattan prosecutor, said Trump’s chances of jail would increase substantially if he publicly denigrates the jury or judge and fails to demonstrate contrition for a guilty verdict.
“He risks jail if he loses badly,” Galluzzo said, “and if he disrespects the process as a ‘witch hunt’ and says the judge is biased and that ‘I didn’t do anything wrong.’ The judge might say, ‘Fine, do 90 days in Rikers and see how you like it.’”