The Largest Legal Hurdle in the Trump Indictment

Intent. It's what separates garden variety false statements from fraud. What separates an error on your taxes and tax fraud. Or routine prescribing from federal drug charges. It's a vital and important component of our legal system. When a person is accused of a criminal offense, the Government bears the heavy burden of proving that he/she committed the offense and had the requisite intent.

Intent may be Trump’s greatest ally. We know right now that Trump will be indicted on 34 counts of falsification of business records related to hush money payments to Stormy Daniels and possibly others. But what Alvin Bragg is going to have to prove is not that he paid hush money. He will have to prove that the records were falsified.

Falsification of business records is a misdemeanor. NY Penal code 175.10 makes it a felony offense when the defendant’s intent is to conceal the commission of another crime or commit another crime.

So what is the other crime?

Bragg was shifty on this point but indicated that NY campaign laws and federal campaign laws were the predicate act raising this case to a first degree felony.

But what Bragg must prove is that Trump made the payments to Cohen as a campaign contribution and actively attempted to conceal that fact. The trouble with this theory is that Trump can easily argue that the payment wasn’t a campaign contribution but the payment to his lawyer who went out of his pocket to resolve the claims and sought reimbursement for the fees.

Countless cases support the view that there must be “intent” to deprive. Kelly v. United States, the GW Bridge saga case was reversed by SCOTUS because there was no intent to deprive the victim of money or property. The Supreme Court is currently considering a case, Ciminelli v. United States in which the Defendant claims that the “victim” was not deprived of property in the Buffalo Billions scheme. This is a very hot button issue for the Supreme Court which will certainly hear an appeal if Trump is convicted.

Now, Alvin Bragg is an educated man – Harvard in fact. We can not simply assume that he is ignorant to the legal requirements of the New York statute. His team has researched, briefed, and mulled over all of the legal issues surrounding the “intent” requirement.

So the burning question on the mind of all legal scholars as we watch the indictment of a former president is – what evidence does he have of intent and is it enough to sustain his burden.