“A Man Should be Hung for What He’s Done, Not for What He Ain’t Done.” Conclusion

One of the first steps any criminal defense lawyer would take in defense of any client, is an examination of the indictment for legal sufficiency. Under Section 200.50 of the New York State Criminal Procedure Law, “an indictment must contain…(a) statement in each count that the grand jury…accuses the defendant…of a designated offense,” as well as “(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.”

According to the first count of the indictment, “(t)he defendant, in the County of New York and elsewhere…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 records of an enterprise, to wit, an invoice from Michael Cohen dated February 14, 2017, marked as a record of the Donald J. Trump Revocable Trust, and kept and maintained by the Trump Organization.” Each of the rest of the charges all involve different documents on different dates, but each contains the exact same phrase; “with intent to defraud and intent to commit another crime and aid and conceal the commission thereof.”

This language would appear to track the language of NY Penal Law Section 175.10, which states that “a person is guilty of falsifying business records in the first degree…when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.”

Thus, under Count One of the Indictment, Donald Trump is accused of causing a false entry to be made in one of the business records of his Revocable Trust for the purpose of committing another crime.

“Another crime.” What other crime? The indictment does not say – and herein lies a very elemental problem for the Manhattan District Attorney.

As we noted above, New York law requires an indictment to “assert facts supporting every element of the offense charged,” the “defendant’s commission thereof,” and to assert those facts “with sufficient precision to clearly apprise the defendant of the conduct which is the subject of the accusation.”

These are basic requirements under New York State’s criminal law. In the 2018 case of People v. Ramcharran, the Queens County Criminal Court wrote that “(t)o be facially sufficient, an accusatory instrument must specify the offense(s) charged and contain factual allegations of an evidentiary nature that tend to support them…(s)uch factual allegations…must consist of non-hearsay allegations that provide reasonable cause to believe that the defendant committed the offense(s) charged, which if true, establish each and every element of those charges… mere conclusory allegations are insufficient…(i)t must…at a minimum, provide an accused with adequately detailed factual allegations of an evidentiary nature sufficient for a defendant to prepare a defense, and prevent him from being tried twice for the same offense.” (Citations omitted.)

Simply put, how is former President Trump to prepare a defense, if he is not informed of the “other crime” he intended to commit or conceal when he allegedly falsified his business records?

Certainly, the law does allow the District Attorney to supplement the Indictment with an additional statement of facts, such as a Bill of Particulars. But unless the prosecution amends the indictment itself, the document which accuses Trump of a crime is clearly and substantially insufficient on its face.

The Ramcharran case involved the District Attorney’s failure to include the right location where the crime was allegedly committed in the indictment (which is another potential defect in the Trump indictment – note that the location of the crime is stated to be “the County of New York and elsewhere”). (Emphasis added) Here, notice of the actual crime which was allegedly violated by former President Trump is missing, a far more serious omission.

Trump’s defense counsel will undoubtedly file a motion asking the judge to inspect the minutes of the District Attorney’s presentation of the case to the Grand Jury, “for the purpose of determining whether the evidence before the grand jury was legally sufficient to support the charges” under CPL Sec. 210.30.

If the Grand Jury was not informed of the “other crime” which Trump intended to commit or conceal when he allegedly falsified his business records (or where “elsewhere” is located), then the presentation to the Grand Jury was hopelessly, fundamentally flawed, and the indictment must be dismissed.

Will this indictment be dismissed, on this, or any other basis? Frankly, don’t hold your breath waiting. The judge assigned the case, Juan Merchan, has already handled two other matters brought against the Trump Organization, both of which resulted in criminal convictions. This, in and of itself, does not make Merchan unfair or biased. However, according to the New York Post, Merchan “donated $35 to Democratic causes in 2020, including $15 to President Biden’s campaign and $10 to a group dedicated to ‘resisting … Donald Trump’s radical right-wing legacy.’”

Does this record of political donations sound like someone who would dismiss Alvin Bragg’s indictment against Donald Trump?

Judge Wilson served on the bench in NYC

Illustration: Pixabay

Quick Analysis

Russia Expanding Aggression

President Putin is using more than one pathway to enter Europe and undermine the West. While most of the world watches the conflict he initiated in Ukraine, the Russian government is actively pursuing a second front in a little noticed campaign in Cyprus. Although the corrupt Cypriot government ended its issuance of “golden passports” in 2020, Russian intelligence is functioning quietly there to transform this EU country into a Russian beachhead of illicit economic activity aimed at penetrating the capitalist West, according to Paul Goble of the Jamestown Foundation. Cyprus is not a member of the North Atlantic Treaty Organization (NATO) nor does it receive as much attention as those countries who are member states. That adds to its allure as a prime location for Russia to attempt to gain a European foothold. Last week a NATO report, cited in the European Daily Monitor, noted that Russian intelligence agents have been plotting to destroy European infrastructure across the continent to disrupt states supporting Ukraine. It further suggests that Putin’s immediate goal is to lay the framework for a future move against the security organization’s members. Hungary, in particular, is another country garnering Moscow’s attention as it opposes the Western response to Russian aggression. Russia is focusing its intelligence efforts on other European, non-NATO member countries in addition to Cyprus, including Austria, Malta, and Ireland. The NATO report suggests that Moscow has had success in disseminating the Russian political narrative in these states to advance its campaign against the West. The island of Cyprus is proving to be a good target for Moscow as it is an ethnically divided island that is part of the EU since 2004. Northern Cyprus, officially called the Turkish Republic of Northern Cyprus (TRNC), is a de facto state that is only recognized by Turkey. The division precludes it from joining NATO. As Goble suggests, “it offers Russia troubled waters in which to fish.” Over the last 20 years, he points out, Cyprus’ challenges have opened it to a massive influx of Russian citizens, who now comprise approximately 10 percent of the island state’s population. Over 2,900 residents are Russians who entered until the “golden passport” program that allowed wealthy or well-connected Russians to move to Cyprus. It also provided them with documentation to travel freely throughout Europe! Although less visible on the world’s radar than the war in Ukraine, Moscow is also being helped by Cyprus’ banks opposition to seizing Russian assets and its support in evading Western sanctions. Russia has placed tens of billions of US Dollars there for money laundering. It has been more than two years since a single Russian “diplomat” has been deported and, in fact, the Embassy has grown to over 300 staffers on this tiny island state of only 1.2 million people. The Russian embassy in Nicosia has advanced communications antennae on its roof and opened a consulate on the northern end of the island. Moscow’s Ambassador, Mura Zyazikov, is a lieutenant general in the FSB with no diplomatic experience. The FSB, SVR (Russia’s Foreign Intelligence Service), and GRU are actively using the island as a base of operations against NATO Member states, Israel, and other Western allies. Moscow backs pro-Russian political parties who in turn influence Cypriot decisions on education, language, and other issues. “Dmitry Khmelnitsky of the Dossier Center says that its findings should be of concern not only to Cyprus but to the West as a whole. Those who ignore what Moscow is doing because Cyprus does not follow the EU sanctions regime are missing something critical,” says Goble. “Cyprus does not seek to get rid of Russian agents and does not interfere with their work,” Khmelnitsky concludes, “despite the fact that what the Kremlin is doing is so clearly visible.” This has an impact not only on the small island but on the EU, NATO, and the West in general. Earlier this year the Moscow Times reported that when the FBI became more interested in Russian business and oligarchs in Cyprus, at least 10 of the major Russian businesses operating there left. Despite the government of Cyprus’ vow to implement plans for new sanctions against Russia, it continues to ignore Putin’s atrocities in Ukraine and to shield the wealth of the 50,000 wealthy Russian citizens and oligarchs residing there. Daria Novak served in the U.S. State Dept. Illustration: Pixabay