What Must Prosecutors Prove in Trump’s NY Trial?

To all the legal nerds about to read this in-the-weeds article about the finer points of New York criminal law in full right now: Welcome. 

To everyone reading this three or four weeks from now, panic-Googling the essential questions we’ve attempted to answer as the jury gets ready to deliver its verdict: We’re glad you finally made it. 

And to everyone else: Bookmark this page. You may well want to have it handy as we head toward closing arguments and Justice Juan Merchan issues instructions to the jury regarding what the elements of the charged offenses are. The answers to such questions will only grow in importance in the weeks to come. 

On April 23, in Justice Merchan’s courtroom, former President Donald Trump’s defense counsel Emil Bove objected to a line of questioning pursued by Assistant District Attorney Joshua Steinglass. 

The prosecutor had asked witness David Pecker, the former CEO of American Media Inc., about Steve Bannon’s role in pitching and vetting National Enquirer articles that were helpful to the 2016 Trump campaign—and damaging to his opponents.

“This is the first we're hearing from the government about Stephen Bannon being an alleged co-conspirator in connection with the so-called conspiracy to influence the election,” Bove elaborated in a sidebar conversation. And after Justice Merchan dismissed the jury and moved the discussion to open court, Bove continued: “As the Court knows, there is no conspiracy charged in the indictment. Statements by a campaign staff member doing normal campaign work do not further any alleged conspiracy that the People are relying on as a predicate act.”

Steinglass, in his response, offered a meta-commentary. “I think there is a misperception about the law and about what this case is about,” he said. 

No kidding. Misperceptions about the law and this case have abounded since District Attorney Alvin Bragg handed up the indictment in March 2023, thanks to either the case’s novelty, a dearth of New York state law expertise outside of New York state, or both. 

In a recent piece for Lawfare, one of us attempted to clear up some of these misperceptions by charting the legal theory behind The People of the State of New York v. Donald Trump. While the indictment alleges no conspiracy, as Bove correctly mentioned, Bragg charged Trump under New York Penal Law § 175.10, falsifying business records in the first degree, a felony “stepped up” from the misdemeanor charge under § 175.05, by alleging that Trump cooked the books with the “intent to commit another crime and aid and conceal the commission thereof.” Justice Merchan has permitted the prosecution to pursue three theories related to that underlying crime, known as the object offense, but the prosecution seems to be zeroing in so far on one, in particular: New York Election Law § 17-152, a misdemeanor offense that prohibits “conspir[ing] to promote or prevent the election of any person to a public office by unlawful means.” As Steinglass said in court on April 23, “while it's true that there is no conspiracy in the second degree charge on the indictment, it is not true that a conspiracy has not always been alleged to be part of this case.”

But even after laying out mechanics of the case as Bragg is prosecuting it, several questions—or misperceptions—remain.

Chief among these questions are: Do prosecutors have to prove that Trump committed one of the three object offenses? And if so, does the jury have to agree on which one? And to what standard of evidence? In addressing these questions, we’re not aiming to endorse nor refute the prosecution’s legal theory, nor the case law around New York Penal Law § 175.10. Rather, we’re aiming to clear up a few “misperceptions.”

Proving the Object Offense Beyond a Reasonable Doubt

Let’s begin by considering the structure of the charges against Trump. As noted, § 175.10 is “stepped up” from § 175.05 by the addition of an “object offense.” To win a conviction against Trump, prosecutors will need to prove the conduct described in § 175.10—falsification of business records with an intent to commit, aid in the commission of, or conceal the commission of another crime—beyond a reasonable doubt.

But what about the standard of proof for the object offense? Recently, legal commentators on Twitter have been debating whether Bragg must prove beyond a reasonable doubt that Trump committed that “other crime” as well, or just that he intended to commit it. 

Consider this handy-dandy chart:

 
One way to think about this is to consider the burden of proof for the offenses listed under A and B. Must Bragg prove beyond a reasonable doubt that both sets of offenses occurred? Or must he prove that A occurred beyond a reasonable doubt, and prove Trump’s intent to commit one or all of the offenses in B—but not the fact that the offenses themselves occurred?

This distinction might seem nitpicky. But given the high burden of proof in a criminal case—proof beyond a reasonable doubt, as opposed to the lower preponderance of evidence standard in civil cases—it could be crucial. If Bragg must prove both A and B beyond a reasonable doubt, and the jury retains some uncertainty as to whether the object offenses under B actually occurred, that could sink the entire case. On the other hand, if Bragg must only prove A beyond a reasonable doubt, along with the intent to commit B, that potentially leaves prosecutors with more wiggle room to secure a conviction. Jurors might not buy with 99 percent certainty that the object crime was committed, but they could still vote to convict if they believe the intent was there.

As an initial matter, the text of Section 175.10 suggests that what’s required is proof of intent, rather than of the object crime. The statute reads:

A person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.

There’s no reference there to the other crime having actually been committed—just to the intent to carry it out or cover it up. “The way that I have always thought of this particular statute is that the element is intent to commit a crime,” Rebecca Roiphe, a professor at New York Law School and former assistant district attorney in the Manhattan District Attorney’s Office, explained. “And so that element obviously has to be proved beyond a reasonable doubt.” Of course, Roiphe told us, the jury will have an idea of what the underlying crime or crimes are, because prosecutors have to tell a story over the course of a trial. “But the way that the statute is traditionally used in New York is a very broad definition of the necessary mens rea,” Roiphe said.

In fact, the New York Court of Appeals, the state’s highest court, considered this issue in People v. Taveras—and found that only intent is required. In Taveras, the defendant challenged his sentence under § 175.10, along with a number of other offenses, including a charged object offense. While considering sentencing matters, the court held, “Read as a whole, it is clear that falsifying business records in the second degree is elevated to a first-degree offense on the basis of an enhanced intent requirement … not any additional actus reus element.” 

In 2015, the First Department of the New York Supreme Court’s Appellate Division—whose rulings are binding on Justice Merchan—applied Taveras in a case structurally similar to Trump’s. (Trial courts in New York are, confusingly, referred to as “Supreme Courts”; the Appellate Division constitutes the intermediate appeals courts, while the Court of Appeals is the court of last resort.) People v. Thompson concerned a defendant convicted of § 175.10—along with “offering a false instrument for filing in the first degree”—for “ma[king] a false entry on a form regarding his purported disposal of a firearm … with the intent to commit or conceal his unlawful possession of the firearm.” The First Department upheld the conviction even though Thompson was not charged with the object offense of unlawful possession.

As in the Trump case, in Thompson, the Manhattan district attorney charged § 175.10 without charging the underlying object offense. Here, the appeals court found that the district attorney was not required to prove that the object offense had been committed. “The People were not required to establish that [the] defendant committed, or was convicted of, the crime he intended to conceal,” the First Department ruled, pointing to Taveras. That seems pretty definitive. And indeed, Justice Merchan cites Thompson in his ruling on Trump’s motion to dismiss, stating that the statute “does not require that the ‘other crime’ actually be committed. Rather, all that is required is that the defendant … act[] with a conscious aim and objective to commit another crime.”

A series of additional cases from New York’s Fourth Department provides further support for this read of the statute. These cases aren’t precedential for Merchan, but they’re still a helpful guide for how New York courts have previously interpreted the statute. In People v. McCumiskey, People v. Houghtaling, People v. Crane, and People v. Holley, a jury convicted a defendant under § 175.10 but deadlocked or acquitted on the charged object offense. And in each of those cases, the appellate court upheld the conviction. In McCumiskey, for example, the Fourth Department held, “The jury could therefore convict defendant of falsifying business records if the jury concluded that defendant had the intent to commit or conceal another crime, even if he was not convicted of the other crime.” Justice Merchan cites McCumiskey alongside Thompson in his ruling on Trump’s motion to dismiss.

These rulings from the Fourth Department are terse, but the appeals court expanded on its reasoning in greater depth in Holley, in which the defendant argued that his conviction under § 175.10 but acquittal on the object offense of insurance fraud constituted a “repugnant verdict” under New York law—meaning a verdict in which a defendant is convicted of a crime “on which the jury has actually found that the defendant did not commit an essential element.” Pointing to McCumiskey and Crane, the appeals court held that “the jury's not guilty verdict on the counts of insurance fraud did not necessarily negate an essential element of the falsifying business records in the first degree counts.”

If § 175.10 required prosecutors to prove both the records falsification and the commission of the object offense beyond a reasonable doubt, a verdict that acquitted or deadlocked on the object offense but convicted on the § 175.10 charge would seem to be legally incoherent. Prosecutors’ failure to convince the jury as to the commission of the object offense would undercut their case on the § 175.10 charge, if proof beyond a reasonable doubt of the object offense were itself a necessary component of § 175.10. But in each of those four cases, the New York appellate courts upheld these split verdicts.

All this may not be dispositive as to the question of what precisely Bragg must prove. But it’s certainly dispositive of what Bragg does not have to prove; to wit, New York case law seems clear and consistent that he does not have to prove the object crime itself, only the intent to commit an object crime. 

If this makes § 175.10 appear to be an expansive statute that gives prosecutors a great deal of latitude to make their case—well, that’s exactly what it is. While initial commentary around the Trump case often framed the indictment as anomalous in its use of the statute, the case law suggests Bragg’s approach here isn’t that atypical for the office.

“We leave a lot to prosecutorial discretion, and sometimes prosecutors take these very broad statutes and apply them in a way that is in the public interest,” Roiphe said. In many falsification of business records cases, “there are other crimes that prosecutors are thinking this person did and are unable to prove,” Roiphe said, likening it to the “Al Capone issue.”

Trump’s indictment does diverge in that Bragg charged only § 175.10, rather than also charging an object offense, which prosecutors seem to have done in a hefty majority of the cases we were able to dig up. But it’s not entirely unique in that sense: Bragg’s predecessor, Cyrus Vance Jr., didn’t charge an object offense in Thompson, though that case did feature an additional charge along with § 175.10. A prominent indictment brought in 2013 by the district attorney in Monroe County, New York, featured a sole charge of § 175.10 concerning the defendant’s alleged straw purchase of a firearm. (That case, People v. Nguyen, resulted in a guilty verdict and was upheld on appeal on unrelated grounds.) And bar disciplinary proceedings in the New York courts point to at least one case in which a lawyer was charged only with § 175.10 for various acts of misconduct, and two in which lawyers pleaded only to § 175.10. (In at least one of these latter cases, the original charges went beyond § 175.10.)

Similarly, following the unveiling of Trump’s indictment in March 2023, a New York Times review of “about 30” cases charged under § 175.10 by the Manhattan District Attorney’s Office found only two in which the defendant was charged with § 175.10 alone. So it’s not the most common use of the statute—but it does happen.

The wisdom of having a broad statute like this on the books, or of courts blessing its broad interpretation, raises different questions than the issues of statutory interpretation that we address here. At the federal level, the Supreme Court has anxieties about such laws and has narrowed some of them. We’ll leave the merits of that discussion for another time.

Jury Unanimity on the Object Offense

The next lingering question has to do with the three separate potential object offenses. Because § 175.10 requires that the defendant must have “intent to commit another crime and aid and conceal the commission thereof,” the question arises as to whether the jury must agree on which object crime prosecutors have shown beyond a reasonable doubt that Trump intended to commit.

In other words, could one-third of the jurors convict on the grounds that Trump falsified records with the intent to violate federal election law; one-third on the grounds that he did so with the intent to violate New York election law; and one-third on the grounds that he did so with the intent to violate tax law? And would a conviction on that basis run the risk of an appeals court overturning a guilty verdict on grounds that the jury actually was not unanimous on elements of the offense? 

Let’s turn again to our handy-dandy chart:

Do all the jurors have to agree on which option among the three grouped in box B? An overview of the relevant law suggests that no, the jury does not need to be unanimous as to the object offense. That said, it wouldn’t be surprising if Justice Merchan were to require unanimity anyway, just to be safe, rather than unnecessarily risking a guilty verdict that might not hold up on appeal.

At the highest level of altitude, the relevant question here is whether the identity of the potential object offenses constitutes an “element” of the crime under § 175.10, or merely the “means” of committing the crime. “Elements” are the statutory components that make up a criminal offense and on which jurors have to be unanimous, whereas the “means” are the methods by which the crime might have been carried out.

In Schad v. Arizona, which concerned an Arizona statute that allowed first-degree murder to be charged on the basis of either premeditated murder or felony murder, a plurality of the U.S. Supreme Court held that while agreement among jurors is required as to the elements of an offense, it is not required as to the means. That is, the jurors must agree as to which crime was committed, but not necessarily how it was committed. While the plurality in Schad held that there is a “point at which differences between means become so important that they may not reasonably be viewed as alternatives to a common end,” the justices also wrote: “If a State’s courts have determined that certain statutory alternatives are mere means of committing a single offense, rather than independent elements of the crime, we simply are not at liberty to ignore that determination and conclude that the alternatives are, in fact, independent elements under state law.” 

How, then, have New York courts understood § 175.10 in this context? There are some hints in the case law that object offenses under § 175.10 do not constitute elements, only “mere means,” and would not require jury unanimity. Recall the Fourth Department’s ruling in People v. Holley finding that an acquittal on the separately-charged object offense, alongside a conviction on § 175.10, did not constitute a repugnant verdict. Under New York law, a verdict is repugnant “only in those instances where acquittal on one crime … is conclusive as to a necessary element of the other crime … for which the guilty verdict was rendered.” In Holley, the court found that the split verdict wasn’t repugnant because the object offense doesn’t constitute a “necessary element” of § 175.10. In other words, the same reasoning that allows a verdict to stand with a conviction under § 175.10 but not under a charged object offense suggests that the identity of an object offense (as opposed to the fact of an object offense) isn’t an element of a § 175.10 charge—and therefore that unanimity wouldn’t be required among jurors as to which object offense the defendant intended to commit. 

We can also get a sense of how Schad might apply by examining how the state’s judiciary has interpreted another felony statute with a similar structure: burglary. Under New York law, “[a] person is guilty of burglary in the third degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein.” (The statutes concerning burglary in the second and first degrees have a similar structure, with additional elements.) Note the similarity to § 175.10: Once again, there’s a requirement of intent to commit an unspecified crime.

This statute has popped up in pretrial proceedings in People v. Trump, though not in this context. Bragg pointed to People v. Mackey—a Second Department ruling holding that the burglary statutes do not require prosecutors to identify which crime the alleged burglar intended to commit—to argue that he had no obligation to provide a bill of particulars specifying the object offenses in Trump’s case. Justice Merchan seemed not entirely convinced of Mackey’s relevance to the case at hand, noting that “the People have not cited a case that applies Mackey to PL § 175.10.” Nevertheless, he found that Bragg had adequately set out the potential object offenses, though he precluded Bragg from introducing new object offenses at trial. In holding that Bragg need only prove Trump’s intent to commit an object offense, Merchan also relied on rulings by the New York Court of Appeals and the Fourth Department concerning the intent requirements of the burglary statutes.

When interpreting these statutes, New York courts have understood the unspecified underlying crime to be a means of committing the offense, rather than an element of it. In Mackey, the Second Department reasoned, “unless there is read into the words ‘a crime’ more than the Legislature has stated, intent to commit a specific crime is not an element, and the necessity for particulars … disappears.”

The U.S. Court of Appeals for the Second Circuit blessed this interpretation of the statute in De Vonish v. Keane, writing, "A specific intent to commit a particular crime upon entry is not a material element of the offense under New York law. ... Rather, the State need prove only a general criminal intent” (emphasis added). The defendant had challenged the constitutionality of his conviction under § 140.30, first-degree burglary, on the grounds that prosecutors had not specified the object offense. But the Second Circuit ruled that “De Vonish’s indictment cannot be constitutionally defective for failing to specify facts supporting an element of the offense that New York law does not require.”

Key to the Second Circuit’s reasoning in De Vonish was the general wording of the statute—that it requires only “intent to commit a crime therein,” rather than specifying a particular crime. In other burglary cases charged under different statutes, the court noted, it had found that prosecutors’ failure to identify a specific intended crime rendered those indictments “fatally defective,” which is to say missing an “essential element” of the crime alleged. But those statutes “were interpreted to require proof of a specific intent to commit a particular offense upon entry”—unlike the more general burglary statutes.

Of course, § 175.10 is a different statute. But it seems easy enough to apply De Vonish’s reasoning to § 175.10 as well. Section 175.10 refers to intent to commit “another crime”—requiring “general criminal intent,” rather than “specific intent to commit a particular crime,” as the Second Circuit wrote in De Vonish. (Recall, too, Schad’s instruction that the federal courts should defer to state legislatures’ drafting of statutes and to state courts’ interpretations of those statutes.) Under the Second Circuit’s reasoning, that would certainly seem to indicate that the object offense under § 175.10 is not an element of the crime, but a means by which the crime was committed. And that would mean that, under Schad, jury unanimity as to which object offense Trump committed would not be required. The only unanimity would be concerning the “general criminal intent” identified in the statute.

That said, this reasoning is not necessarily a slam dunk. In his omnibus motion to dismiss, Trump identified several distinctions between the burglary statutes and § 175.10—suggesting, for example, that “intent to commit a crime” under the burglary statutes is more general in meaning than “intent to commit another crime” under § 175.10. And Justice Merchan did not seem completely convinced by Bragg’s analogizing in his ruling on the motion to dismiss. 

With all that in mind, it wouldn’t be surprising to see Merchan issue instructions to the jury requiring unanimity, just to be safe. The judge has proved to be thoughtful and cautious so far. From his perspective, why risk a guilty verdict that might not hold up on appeal? Roiphe also suggests that he might choose to issue a special verdict form, asking the jury to provide responses to factual questions—for example, asking for yes-or-no answers on whether Trump intended to commit each of the object offenses—and then reaching the conclusions of law himself. That could clarify the jury’s reasoning and potentially help preserve a conviction on appeal.

For their part, prosecutors may be seeking to avoid this problem by focusing on one particular object offense—Trump’s alleged intent to violate New York Election Law § 17-152, which criminalizes “promot[ing] or prevent[ing] the election of any person to a public office by unlawful means.” At one point during the trial, prosecutor Joshua Steinglass referred to the statute as “the primary crime that we have alleged.” (This object offense also has the advantage of looping in all the other object offenses, which in Bragg’s legal theory constitute the “unlawful means” required by the statute.) If the district attorney’s office has made the call to build its case around a specific object offense, that will leave a lot less room for ambiguity when it comes to the verdict—although it also leaves Bragg with less flexibility in how he proves his case.

So What?

All of this might seem pretty weedy. Believe us, we know. But the diversity and volume of pretrial motions to delay filed by the defense—so many that Justice Merchan ordered Trump to file pre-motion letters seeking the court’s permission to file additional motions—suggests that the defense will exhaust every possible avenue for appeal in the event of a guilty verdict. And these are the questions on which an appeal could very well hinge. They will be the key questions when Justice Merchan instructs the jury a few weeks from now—and they will undoubtedly constitute the key questions on appeal should the jury convict Trump.