On Thursday, May 30, a Manhattan jury returned a guilty verdict on all 34 counts of falsifying a business record against former President Donald Trump. While the case involved both the testimony of an ex-porn star, and an unprecedented defendant—a major party’s presidential candidate—only a few pundits have touched on the crime itself or the proof required to convict.
Trump has been charged with 34 counts of forging a business document, in violation of New York Penal Code 175.10, which is a felony. This particular code section has been on the books in New York since the 1980s.
This is a convoluted law, and not unlike the infamous Racketeer Influenced and Corrupt Organizations (“RICO”) statute, in that you must prove a crime within a crime. In most cases of RICO or other similar offenses, prosecutors will likely opt for the lower-hanging fruit, and simply charge (and convict) on the predicate crime. This is generally less work, and just as much reward, as going through the complex process of proving all of the elements of multiple crimes.
Simply falsifying business records, however, is only a misdemeanor under a New York law. In order for it to be felonious, the prosecutor must prove that Trump also intended to commit “another crime.” Note that it does not require proof that the crime was completed, only that he intended that a crime be committed, which is a bit of a novelty.
New York defense attorneys acknowledge that the “falsifying” itself is fairly commonplace. One site indicates that people could be charged simply by incorrectly entering data into a database, and failing to immediately rectify the error. But proving intent can be a prosecutor’s biggest challenge—but it is the intent that transforms the charge into a felony, as opposed to a misdemeanor.
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