April 9, 2023. ABC News – Several hot-button legal inquiries loom over former President Donald Trump — everything from election interference and misuse of classified documents to defamation of a writer after an alleged rape.
He has consistently denied any wrongdoing.
However, the indictment and arraignment of Trump earlier this week, the first for an ex-president in U.S. history, has drawn the nation’s attention to a rarely discussed white-collar financial crime: falsifying business records.
As part of a scheme to reimburse former Trump attorney Michael Cohen for hush money payments to porn actress Stormy Daniels, Trump fraudulently recorded $130,000 in expenses as the cost of legal services for Cohen, the indictment alleges.
In Manhattan criminal court, Trump pleaded not guilty on Tuesday to all 34 counts of falsifying business records. He has denied having sex with Daniels.
In a press conference on Tuesday, Manhattan District Attorney Alvin Bragg characterized the validity of business records as fundamental to a well-functioning economy.
“This is the business capital of the world,” he said. “The bedrock, in fact the basis, for business integrity and a well-functioning business marketplace is true and accurate record keeping.”
Here’s what to know about the crime of falsifying business records and the typical penalties, according to interviews with New York City-based criminal defense attorneys.
What does falsifying business records entail?
Falsifying business records, a violation of New York state law, constitutes the entry of inaccurate information on a business document to benefit oneself.
In other words, a description of the crime is “sort of in the name,” Adam Konta, a senior partner at Manhattan-based law firm Konta, Georges & Buza, told ABC News.
However, the crime of falsifying business records not only requires an incorrect entry on a company form but also an intent to mislead in an effort to reap reward.
“Every crime requires both an act and a criminal intent behind the act,” Matthew Galluzo, a criminal defense attorney in New York City and a former prosecutor in the New York County District Attorney’s Office, told ABC News.
If a boss asks a secretary to mark a form incorrectly and he or she does so without awareness of an attempt to mislead, the secretary is innocent of a crime, Galluzo said.
Similarly, an accidental or harmless recording error falls short of a crime, he added.
The most common example of the crime involves fibbing about a company’s financial information for the sake of evading or minimizing tax payments, or in an effort to hoodwink potential investors, Galluzo said.
Why is the alleged Trump crime a felony and how will prosecutors need to prove it?
The crime of falsifying business records constitutes either a misdemeanor or a felony, depending on the circumstances of a given violation, the attorneys said.
The act rises to a felony when the inaccurate record is entered as part of an effort to commit a different, underlying crime, the attorneys said.
The misdemeanor version of the crime usually means “destruction or falsification of business records,” Konta said. “When you’re doing that in hopes of committing a separate crime, then it’s what’s called a ‘bump up.'”
The standard is akin to the legal treatment of trespassing, Konta added, noting that the mere act of trespassing is a relatively minor crime but the charge becomes far more serious if a trespasser attempts to steal.
In the Trump indictment, Bragg didn’t specify the underlying law Trump attempted to break when he allegedly falsified business records.
“The indictment doesn’t specify it because the law does not so require,” Bragg said at a press conference on Tuesday, later mentioning possible secondary crimes that include illegal promotion of a political campaign and an attempt to make false claims on tax forms.
The defense will likely attempt to force Bragg to specify which underlying crime Trump attempted to commit, while Bragg will try to keep the interpretation open-ended, so the jury merely has to find Trump attempted to commit a crime rather than any specific one, Galluzo said.
“The statute itself seems to suggest you just have to prove he was trying to break a law,” Gallluzo said. “Defense attorneys will say, ‘Well, you have to tell us what law and prove that law specifically.'”
“Prosecutors will try to keep it vague and flexible so the jury can say maybe it was this or maybe it was that, but it’s got to be one of them,” he added.
What is the penalty for falsifying business records?
The maximum penalty for a felony count of falsifying business records is four years in state prison.
“However, there’s no mandatory minimum sentence,” Galluzo said.
Due to Trump’s age and lack of a criminal history, a jail sentence of any length is unlikely if he is convicted, Galluzo added, noting however that the 13-month jail sentence served by Cohen in a related case potentially raises the possibility of incarceration for Trump.
In federal court, Cohen pleaded guilty to two violations of campaign finance law resulting from hush money payments made to Daniels and former Playboy model Karen McDougal. Trump also denies having sex with McDougal.
In addition, Cohen pleaded guilty to five counts of tax fraud and one count of false statements made to a bank.
Penalties in falsification of business records cases are often driven by the amount of money at stake in the potential fraud, Daniel Hochheiser, a criminal defense attorney in New York, told ABC News.
Trump is alleged to have reimbursed Cohen for $130,000 in hush money payments, though the statement of facts accompanying the indictment claims that then-Trump Organization Chief Financial Officer Allen Weisselberg agreed to a total repayment of $420,000, including other expenses and a year-end bonus.
“Somebody who makes a false business record in a $100,000 fraud is generally punished less severely than somebody who makes a false entry in a record involved in a scheme to commit a $10 million fraud,” Hochheiser said.
“I don’t see any scenario in which Trump goes to jail,” Hochheiser added. “Even if he’s convicted of everything.”