How To Defend Trump By Really Trying -

by Emmanuel S. Tipon, Esq.

FULL DISCLOSURE: This writer met former President Donald Trump in person in July 2016 in Cleveland, Ohio, when he was a Hawaii delegate to the Republican Convention. After Mr. Trump was nominated, he hosted a party the following day for the original 500 persons who had supported his candidacy, and this writer was invited. Mr. Trump shook hands with the guests, including this writer who was on the front row. This writer handed his business card to Mr. Trump who read it, smiled at this writer, and then put the card inside his coat pocket. This writer had a selfie with Mr. Trump.

“The best defense when you are indicted for a criminal offense is to get the best lawyer your money can buy – excellent legal education, competent, diligent, experienced, and courageous.”
– Memoirs of Emmanuel S. Tipon

President Trump can win the criminal case against him – if his defenders really try. On April 4, 2023, former President Donald J. Trump was indicted by a New York grand jury for 34 counts of falsifying business records in the first degree in violation of New York Penal Law §175.10. We have read the 16-page indictment.

Mr. Trump pleaded “Not Guilty” to all 34 counts. The next hearing will be on December 4, 2023. No one expects the case to be resolved before the November 2024 elections, considering that there will be pre-trial motions, a lengthy trial, post-trial motions, appeal to New York appellate courts if Trump is found guilty, and the U.S. Supreme Court if Trump receives an unfavorable ruling.

What if Trump wins the election? Can a sitting president be tried for a crime? If he can and is convicted, can he pardon himself?

Law allegedly violated
NY Penal Law § 175.10 (2019) provides: “§ 175.10 Falsifying business records in the first degree. 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. Falsifying business records in the first degree is a class E felony.”NY Penal Law § 175.05 (2022) provides:

“§ 175.05 Falsifying business records in the second degree. A person is guilty of falsifying business records in the second degree when, with intent to defraud, he:

1. Makes or causes a false entry in the business records of an enterprise; or

2. Alters, erases, obliterates, deletes, removes or destroys a true entry in the business records of an enterprise; or

3. Omits to make a true entry in the business records of an enterprise in violation of a duty to do so which he knows to be imposed upon him by law or by the nature of his position; or

4. Prevents the making of a true entry or causes the omission thereof in the business records of an enterprise.

Falsifying business records in the second degree is a class A misdemeanor.”

Tsunami of motions
A tsunami of motions could be filed to obtain the dismissal of the indictment.

A. Motion to dismiss because the law is void for vagueness
A motion to dismiss the indictment could be filed on the ground that the statute under which the defendant is charged is void for vagueness in violation of due process of law. N.Y. Constitution, Article 1, § 6 provides that “No person shall be deprived of life, liberty or property without due process of law.”

The gravamen of the indictment is that the defendant “made and caused a false entry in the business records of an enterprise”.

What constitutes making a “false entry”? The statute does not define it. Do the following constitute making a “false entry” – erasure or deletion of an existing entry, writing incorrect information; bookkeeping error; innocent mistake in making an entry; negligence in making an entry; or failing to make an entry.

“Beauty is in the eye of the beholder”. What is beautiful to one person may not be beautiful to another. “False entry” is in the eye of the beholder. What is a “false entry” to one person may not be a “false entry” to another. Therefore, the statute is vague. It “fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.” The prohibition of vagueness in criminal statutes “is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law,” and a statute that flouts it “violates the first essential of due process.” Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 S.Ct. 322 (1926).” Johnson v. United States, 576 US 591, 135 S Ct 2551, 2556-57 (2015). The Supreme Court said that the Government violates the guarantee of due process “by taking away someone’s life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.” Johnson v. United States, supra.

B. Motion to dismiss because indictment does not charge an offense
A motion to dismiss the indictment could be filed on the ground that it does not charge an offense. Take the first count as an example. It charges the defendant with intent to defraud by making or causing a false entry in the business records of an enterprise, to wit, “an invoice from Michael Cohen dated February 14, 2017, marked as a record of the Donald J. Trump Revocable Trust, and kept and maintained by the Trump Organization.”

But the indictment does not state why the entry is false. That is the gravamen of the offense. The most essential element of the crime is not alleged.

C. Motion to reduce the charge from felony to misdemeanor
A motion to reduce the charges from felony to misdemeanor could be filed.

The only allegation that makes falsifying business records a first degree offense and thereby a felony is that the defendant’s intent to defraud included an “intent to commit another crime or to aid or conceal the commission thereof.”

But the indictment does not allege facts relating to the other crime that the defendant intended to commit. Nor does the indictment allege the other crime that the defendant intended “to aid or conceal the commission thereof.”

Therefore, the indictment is not supported by allegations or facts that make the offense charged as falsifying records in the first degree and consequently a felony. In fact the indictment does not charge an offense, or if at all it is simply falsifying business records in the second degree, which is a misdemeanor.

D. Motion to dismiss because the indictment is barred by the statute of limitations
A motion to dismiss because the indictment is barred by the statute of limitations could be filed.

New York law provides that “A prosecution for a misdemeanor must be commenced within two years after the commission thereof.” NY Crim Proc. 30.10(2)(c).

The indictment against Mr. Trump alleges that the various crimes were committed in 2017. Since they are only misdemeanors, the statute of limitations prohibits their prosecution.

E. Motion for a bill of particulars
A motion for bill of particulars could be filed.

The indictment simply tracks the language of the statute. The defense could request the prosecutor for a bill of particulars on the ground that the indictment does not recite items of factual information pertaining to the offense charged, the substance of defendant’s conduct, and whether the defendant acted as principal or accomplice or both. If the prosecutor refuses to comply the defendant could move the court to order the prosecutor to comply with the request. See N.Y. Crim. Proc. Law § 200.95.

F. Motion for a change of venue
In the event that the indictment is not dismissed outright, a motion for change of venue could be filed. It could allege that the hostility toward Mr. Trump in New York City evidenced by, among others, the fact that Biden reportedly won 80% of the votes in New York City, together with the extensive pretrial publicity, have poisoned the minds of potential jurors, thereby rendering them unable to render a fair verdict, and that voir dire would not be able to detect or reveal juror bias. See Skilling v. United States, 130 S. Ct. 2896 (2010).

Other motions could be filed. But these motions should be sufficient to keep Mr. Trump out of jail.

ATTY. EMMANUEL S. TIPON was a Fulbright and Smith-Mundt scholar to Yale Law School where he obtained a Master of Laws degree specializing in Constitutional Law. He graduated with a Bachelor of Laws degree from the University of the Philippines. He placed third in the 1955 bar examinations. He is admitted to practice before the U.S. Supreme Court, New York, and the Philippines. He practices federal law, with emphasis on immigration law and appellate federal criminal defense. He was the Dean and a Professor of Law of the College of Law, Northwestern University, Philippines. He has written law books and legal articles for the world’s most prestigious legal publisher and writes columns for newspapers. He wrote the annotations and case notes to the Immigration and Nationality Act published by The Lawyers Co-operative Publishing Co. and Bancroft Whitney Co. He wrote the best-seller “Winning by Knowing Your Election Laws.” Listen to The Tipon Report which he co-hosts with his son Attorney Emmanuel “Noel” Tipon. They talk about immigration law, criminal law, court-martial defense, politics, and current events. It is considered the most witty, interesting, and useful radio show in Hawaii. KNDI 1270 AM band every Thursday at 8:00 a.m. Atty. Tipon was born in Laoag City, Philippines. Cell Phone (808) 225-2645. E-Mail: filamlaw@yahoo.com. Website: https://www.tiponimmigrationguide.com.