On Thursday, March 30, a New York grand jury voted to indict former President Donald Trump over hush money payments to Stormy Daniels. While the charges remain secret, Manhattan District Attorney Alvin Bragg will likely argue that Trump falsified business records and that the hush money payments amounted to an illegal contribution to his presidential campaign. The alleged indictment raises important questions about efforts to interfere with the 2016 presidential election and the rule of law.
To unpack the developments, we have Karen Friedman Agnifilo. Karen has seen these types of cases up close as the former Manhattan Chief Assistant District Attorney. While there, she helped oversee the office’s 500 lawyers, 700 staff, and nearly 80,000 cases each year.
Show Notes:
On Thursday, March 30, a New York grand jury voted to indict former President Donald Trump over hush money payments to Stormy Daniels. While the charges remain secret, Manhattan District Attorney Alvin Bragg will likely argue that Trump falsified business records and that the hush money payments amounted to an illegal contribution to his presidential campaign. The alleged indictment raises important questions about efforts to interfere with the 2016 presidential election and the rule of law.
To unpack the developments, we have Karen Friedman Agnifilo. Karen has seen these types of cases up close as the former Manhattan Chief Assistant District Attorney. While there, she helped oversee the office’s 500 lawyers, 700 staff, and nearly 80,000 cases each year.
Show Notes:
Paras: Hello and welcome to the Just Security podcast. I’m your host, Paras Shah. On Thursday, March 30, a New York grand jury voted to indict former President Donald Trump for his role over hush money payments to Stormy Daniels. While the charges remain secret, Manhattan District Attorney Alvin Bragg will likely argue that Trump falsified business records and that the hush money payments amounted to illegal contributions to his presidential campaign. The alleged indictment raises important questions about efforts to interfere with the 2016 presidential election and the rule of law.
To unpack the developments, we have Karen Friedman Agnifilo. Karen has seen these types of cases up close as the former Manhattan Chief Assistant District Attorney. While there, she helped oversee 500 lawyers, 700 staff, and nearly 80,000 cases each year.
Hi Karen, thanks so much for joining us today.
Karen Agnifilo: Thanks for having me.
Paras: This is the first ever indictment of any president. What should we make of that in terms of the political implications?
Karen: So if you're thinking about politics, I do understand the historical significance of indicting a former president to be the first, and I think it's historic because people who we elect as president usually have integrity and don't commit crimes. So I don't necessarily think it’s historic in the sense that anything was done politically. I think it's historic because of the fact that we elected, and may elect again, Donald Trump and the type of person he is as president.
Paras: For years, you were second in command at the Manhattan District Attorney's office. Tell us about the office. What's it like?
Karen: I'm reading some of the news articles who are talking about, you know, this will open the floodgates to all local prosecutors and, you know, local DA everywhere could just indict somebody. But the Manhattan DA's office is not just any local prosecutor. The Manhattan DA's office sits in Manhattan, obviously. As such, our jurisdiction is the entirety of Manhattan. And because Manhattan is the financial capital of the world, the crime scenes, if you will, that the Manhattan DA's office are used to prosecuting are international banking cases and the biggest business cases in the country. So the Manhattan DA's office is used to very big, complex cases involving very important people.
So the Manhattan DA's office has investigated people for crimes that you've never heard of because they never came to anything, and they know how to do that. They know how to keep things secret. They know how to investigate important people or elected officials or celebrities or whatever your definition of is a big case. The Manhattan DA's office has done it all and has seen it all. They're in the big leagues and they're used to being on center stage, they're used to media attention. There's nothing that will scare them or make it so that they back down because they're being threatened.
Paras: So the prosecutors in that office are not going to back down. How do you see this case from a legal standpoint?
Karen: This case legally isn't particularly that complicated, and it's not particularly that difficult. The charges that we believe they are charging as falsifying business records in the first degree are the bread and butter of the Manhattan DA's office, and it's something that is done very regularly. It’s almost like the Feds, how they charge everything is a wire fraud, or mail fraud, I should say. I'm always like, what even is that? You know? But that's their bread and butter, the charge that they do every single day. It's so encompassing of lots of different conduct. And so, the charge isn't really that special or that difficult.
Paras: What do you make of the facts here, at least based on what we know from the public reporting?
Karen: The facts of the case, they are what they are and, you know, there's been a lot made of, well, Michael Cohen, how can you deal with Michael Cohen? He's so difficult and, and he's been convicted of lying, et cetera. And that is something, again, the Manhattan DA's office knows how to address that. They know the lawyers there are, I would say, the best lawyers I've ever come across in my life. They try lots of different types of cases. That's the training you get there. You know, one of my first trials was a guy who was sucking the tokens out of the subway turnstile. So that should tell you how long ago it was, because they don't even have tokens anymore, you know?
Paras: Yeah, now you can even just pay on your phone.
Karen: I've tried every imaginable type of case as a misdemeanor assistant, and you're in the trenches and you learn how to do all of the things that you need to learn to do bigger cases. And so, like I said, they're used to people who lie, cheat and steal.
And they also have test driven some of the witnesses at the Trump Org trial, right? They know about the books and records of the Trump Organization. They know how the place works, so they know how to address this issue of falsifying business records.
Paras: In New York, falsifying business records can be a felony if it's in furtherance of another crime. So how should we think about that element of this case?
Karen: There've been a lot of discussions about what the felony is and is there enough to make it a felony, because in New York, falsifying the business record is a misdemeanor, and for it to be a felony, the false entry in a business record has to be done with the intent to conceal or commit a crime. And everyone's saying it's a federal crime that, you know, he was committing. Interestingly, no one's saying he didn't commit a crime, by the way. He's just saying he committed a federal crime and it doesn't count, you know, so, we got someone who's committing a crime. In fact, when he was president, he was sitting in the Oval Office writing those checks to Michael Cohen and falsifying those business records. So we had a president, a sitting president in the United States, actively committing a crime while he was president. To me that is significant and it's very serious.
But you know, there's been a lot of discussion about what this felony is and whether a federal crime counts. I'm doing some research into this, and I don't have it right now, but I'm saying it out loud so that all the really smart people who are listening to this can start researching and seeing if my theory is correct. When I was working, at the DA's office under Cyrus Vance, we did a lot of cases involving falsifying business records of big banks. And we ended up actually seizing a billion dollars in asset forfeiture money. And, my understanding—and again, I’m gonna do some research, I've been trying to find those old press releases, but they don't seem to be on the Manhattan DA's office website anymore—I believe that some of those were based on federal crimes, as the crime they intended to commit or conceal.
But I also don’t think that that's the only crime, you know, that a federal crime isn't the only one that is in play here. I think there are lots of state crimes potentially.
Paras: What exactly do prosecutors have to prove in this case?
Karen: I don't think that you really have to go through such mental gymnastics to try to figure out what crime it was that was committed, or that you have to prove what crime was committed. You just have to prove that he intended to conceal or commit a crime therein.
And I've been using an analogy to burglary when I discussed this because a burglary is a trespass. Plus, you intended to commit a crime therein, right? And the trespass is a misdemeanor. And what bumps it up? So, if you, if you go into someone's apartment to sleep, just cuz I wanted to sleep in there cause I'm homeless, that's a trespass. That's cuz you didn't intend, if you can't prove that you intended to commit a crime therein, you just wanted to sleep. But if that person walks into that apartment and has a condom, a knife, and a safe cracker on them, and then they walk in and they get caught and arrested right away—they don't actually commit a crime therein—the Manhattan DA's office will look at that case and say, you know, I know he's saying he went in there to sleep, but he had those burglar's tools on him. And what do you think? We don't know if he was going to commit a rape or a murder, or if he was going to steal something out of the safe. But I think there's pretty good evidence that because he brought those things in there, that he was in there to commit a crime. And that's what you argue to the jury. And some—we don't have to prove that it was a murderer versus a theft or a safe crime. You know, we don't have to prove exactly which crime, just that you intended to commit a crime and the jury doesn't even have to agree which one it was. Some could think it's one, and others can think it's a different one.
So, I don't see how this is any different. I don't see why they can't say that here, and I think the evidence that Donald Trump was committing a crime was the way he did it, that he structured the payments right? He didn't just write a check all at once. The fact that he lied about what they were for in his books and records, you know, why would he do that? He's saying, cuz I didn't want Melania to know? Well, what, is Melania reading the books and records of the Trump Org? Like, I don't, I don't think it matters. I think you've got enough evidence here. You're gonna have testimony from various people: David Pecker, Michael Cohen, and potentially others we just don't know cuz we haven't seen the indictment yet. to corroborate that was what it was for.
Paras: What do you think Trump's strongest defense will be?
Karen: I think his defense, he's gonna go for a combination of jury nullification, you know, like, like I was the victim of extortion. He's gonna try to portray it like that. I was the victim of an extortion and I'm the victim of an aggressive prosecutor that other prosecutors have already decided against bringing this case. And he's bringing it for political reasons and Michael Cohen is revengeful and vindictive and upset that he went to prison, but he, you know, committed his own crimes like taxi medallion, tax issues. You know, I didn't, this had nothing to do with anything, he was a criminal and he's a liar, and he's a celebrity hog, and he tells so many different stories and they're gonna cross-examine him, you know?
He's lied to Congress. They're gonna examine every statement he's made about this, which is a million, including in a book and including on his podcast, they're gonna find small inconsistencies in his story and they're gonna show it's a revenge to Trump and it's personal and he's a liar, and he would lie to get Trump. And so I think he's gonna go with a combination of, try to destroy Michael Cohen and say that he's a victim. And he was doing this to protect Melania because the allegation was that it happened when she had just given birth and he didn't have the affair, but he didn't want Melania to think he had.
I don't really know what defense you would call that, but that's how I think the defense will go. I mean, he, before that, he's going to argue the statute of limitations doesn't, you know, has run. And um, he's gonna make legal arguments about the felony. You know, what makes this a felony? And see if he can get it knocked down to a misdemeanor.
Paras: How does this case fit into the larger picture of ongoing investigations in cases against him?
Karen: Everyone's talking about how historic this is and, you know, he's a former president who's never been indicted, but so many other things are happening that are equally, if not more serious than this, in less than a month. On April 25th, there is a rape trial happening. E. Jean Carroll, make no mistake about it, it's defamation, it's civil, it's under the Adult Survivors Justice Act because the statute of limitations has run. But you know, New York opened a window for one year for adult sexual assault survivors like they did for child sexual assault survivors a few years ago, where it said from one year for, from November of 2022 to November of 2023, if your statute of limitations has run on a sexual assault case, you have a year to bring your case because, you know, it's a one year window, and so this is being brought under that. There's also a defamation element to it, but make no mistake about it, that's a rape case. That will be a rape trial and a rape accusation. So Donald Trump is going to be in New York on April 25th for a rape trial, a civil rape trial that is, also historic and significant.
And you also have the Leticia James civil case that is teed up to also be going very soon and he's going to be in town in New York facing those charges. I also suspect that Fannie Willis is going to bring her Fulton County Georgia indictment sooner rather than later, perhaps in the next month or so. And that is going to be about the 1100-11,780 votes telephone call and the election interference down in Georgia that may include Donald Trump. Certainly all indications seem to suggest that it will include Donald Trump, so he will soon have other criminal charges.
And Jack Smith, by the way, who I started in the DA's office with him in the early nineties, we came up together doing all those crazy, uh, cases. I was talking about Jack Smith cut his teeth in the trenches and he was an excellent standout ADA then. I am not surprised he is. Who he is now. He was a put your head down without fear or favor kind of guy.
He wasn't political, he wasn't, um, a showman. He was just a prosecutor's prosecutor. He knows what he's doing and I'm not surprised that they tapped him for this really important, case. And he's moving at a very fast clip and I wouldn't be surprised if we see that happening soon.
Paras: We’ll be following all of this at Just Security, Karen, thanks so much.
Karen: Thanks for having me.
Paras: This was a special episode of the Just Security podcast. Thanks so much to Karen Friedman Agnifilo for joining us. You can read all of Just Security’s coverage on the Trump indictment, including a detailed timeline of events relevant to the investigation and legal analysis assessing the strength of the case from top experts, on our website.