What crime is the Manhattan DA investigating?

Trump’s former lawyer and fixer Michael Cohen paid porn star Stormy Daniels $130,000 just days before the 2016 election. In Cohen’s version of events, this was done at the direction of his boss because Daniels was on the cusp of going public about an affair she alleges she had with Trump in 2006.

Trump, while he was in the White House, reimbursed Cohen, but has consistently denied the affair.

The payment, by itself, wouldn’t be the crime, but how the payments were documented in the books of the Trump Organization is the focus.

According to Mark Pomerantz, a former prosecutor who worked closely on the case and recently published a book about his experience, Cohen submitted phony invoices throughout 2017 referencing a “retainer agreement” and requesting payment. Then, Cohen received a series of checks, hand-signed by Trump while he was in the White House. The legal problem is there was no retainer agreement — according to Pomerantz, it was all done to cover up the hush money scheme. The fake documentation of “legal expenses” on the Trump Organization’s books could trigger a charge under New York state law, which makes falsifying business records a crime.

Normally, the false business records charge would be a misdemeanor. In order to elevate it to a felony, the defendant needs to have created the fake records with an intent to commit or conceal “another crime.” Here, it’s unclear what the Manhattan District Attorney’s Office plans to argue is the second crime. Some legal commentators have suggested that perhaps the DA is only prosecuting the misdemeanor charge. Others have argued that would be a huge waste of time and resources, and give Trump the power to paint the case as weak.

If the grand jury doesn’t vote in favor of prosecuting this case as a felony, it could direct the prosecutor to file a misdemeanor case instead.