With the jury deliberating on the charges facing former President Donald Trump, many aspects of the trial have been explored. And while the case involves both the testimony of an ex-porn star and an unprecedented defendant — a major party’s presidential candidate — only a few have touched on the crime itself or the proof required to convict.
Trump has been charged with 34 counts of forging a business document, in violation of New York Penal Code 175.10, which is a felony. This particular code section has been on the books in New York since the 1980s.
This is a convoluted law not unlike the infamous Racketeer Influenced and Corrupt Organizations (“RICO”) statute, in that you must prove a crime within a crime. In most cases of RICO or other similar offenses, prosecutors will likely opt for the lower-hanging fruit and simply charge (and convict) on the predicate crime. This is generally less work than — and just as much reward as — going through the complex process of proving all of the elements of multiple crimes.
Simply falsifying business records, however, is only a misdemeanor under a New York law. In order for it to be felonious, the prosecutor must prove that Trump also intended to commit “another crime.” Note that this does not require proof that the crime was completed; it only requires proof that he intended that a crime be committed, which is a bit of a novelty.
New York defense attorneys acknowledge that the “falsifying” itself is fairly commonplace. One site indicates that people could be charged simply by incorrectly entering data into a database, and failing to immediately rectify the error. But proving intent can be a prosecutor’s biggest challenge—but it is the intent that transforms the charge into a felony, as opposed to a misdemeanor.
It is important to situate Trump’s 34 indictments in the broader context of the Manhattan District Attorney’s Office. As one of the most advanced state prosecutors’ offices in the country, the Manhattan District Attorney’s office actually has a public forum in which anyone can see the various statistics of the office — charges, trials, sentences. It’s easy to remember — Data.ManhattanDA.org.
Unfortunately, the office’s data website only goes back as far as 2013. In those 11 years, there have been 163 convictions of murder in the second degree, 509 felony weapons possession in the second degree, 4,035 convictions for petit larceny, and 2,146 convictions of misdemeanor assault. It is worth noting that, for each category, there is a stark drop off in the number of convictions for calendar year 2020.
Now, how common is Trump’s charge, felony falsifying business documents?
In those last 11 years, only four people have been convicted as felons under 175.10, all of them last year (2023). Because District Attorney Alvin Bragg announced in 2023 that Trump would be charged under this code section, it’s possible that these four previous cases were test runs for the office.
Given the raw data, how can Bragg even make the argument that this is not politically motivated? Since he became district attorney, the first time this statute was used was, coincidentally, the same year that he announced that the president would be charged under it. What are the odds?
And don’t forget the other crimes that has gone unprosecuted in New York: larcenies, robberies, and unsolved murders. Resources are being diverted away from violence and instead toward finding creative ways to charge a Republican presidential candidate with a felony, under a statute that hasn’t been used until just this year. How can Bragg claim that’s justice?
Maggie Cleary Kilgore is a visiting fellow at Independent Women’s Law Center (iwlc.org) and deputy commonwealth attorney in Culpeper County, Virginia. She is former special counsel to Attorney General Jason Miyares and former deputy secretary of Public Safety and Homeland Security under the Youngkin administration. She is also a former federal prosecutor.
