June 27, 2024

VIA HAND DELIVERY AND EMAIL

The Honorable Juan M. Merchan
New York State Supreme Court, Criminal Term, Part 59
100 Centre Street
New York, NY 10013

Re: The People v. Donald J. Trump, Ind. No. 71543-23

Dear Justice Merchan:

We submit this letter on behalf of Citizens Union, a New York nonprofit founded in 1897 whose mission is to reform New York City and State government by fostering transparency, accountability, accessibility, honesty, and the highest ethical standards in our government. Citizens Union is also committed to ensuring free and fair elections at every level of government.  Indeed, our decades of advocacy have prioritized safeguarding free and fair elections.[1]

We write to share the perspective of Citizens Union on the sentencing of former President Donald Trump on 34 felony counts of first-degree business records falsification. As the Court knows, the underlying crime that the jury unanimously determined Defendant Trump concealed through these falsifications was a violation of New York Election Law section 17-152. That law criminalizes conspiring to promote or prevent the election of any person to a public office by unlawful means. Given Citizens Union’s mission, we offer our perspective on sentencing, including as a voice for voters whose interests are implicated and therefore should be considered among the victims of this criminal conspiracy.

We are not writing to take a position on a specific sentence that should be imposed on this Defendant. That is for Your Honor to determine. But we do offer our views on relevant factors and how they apply, including the seriousness of the crime, the Defendant’s lack of remorse, the need for deterrence, and other considerations.  We offer our views through the lens of the gravity of the criminal conduct found, as it relates to the fair conduct of elections and the integrity of the justice system, which we believe are fundamental principles that have been threatened by Defendant Trumps’s conduct.

One of the issues that concerns Citizens Union and the New Yorkers we represent is the Defendant’s success in concealing information in order to influence the 2016 presidential election. Given our mission to promote transparency and accountability, we offer our perspective on sentencing, as it reflects the concerns of deceived voters.

The Seriousness of the Crimes and Their Effect on Democracy

We know of no more serious business records falsification case in New York history.[2] The evidence credited by the jury in rendering its 34 guilty verdicts establishes beyond a reasonable doubt Defendant Trump’s intent to corruptly influence the 2016 presidential election. As this Court is aware, the evidence established that, near the very end of the 2016 Presidential campaign, Defendant Trump conspired to conceal a politically devastating story from voters through a scheme to make hush money payments to an adult entertainment film actress to cover up their relationship. To avoid disclosure of this scheme through campaign finance reports or otherwise, he funneled his payments via his personal attorney and then allegedly concealed the payments’ purpose by falsifying business records about the nature of the payments. In essence, Defendant Trump was convicted of offenses that harmed our democracy and prevented voters from learning this critical information about a candidate’s background on the eve of the 2016 Presidential election.

Moreover, the consequences of Defendant Trump’s business records falsifications may well have been electorally significant. As ADA Matthew Colangelo explained in his opening statement: “We will never know, and it doesn’t matter, if this conspiracy was the difference-maker in a close election, but [the Defendant made it] crystal clear that he was certainly concerned about how all of this could hurt his standing with voters . . . .”[3] The 2016 Presidential election was very close. News of the defendant’s sexual encounter with an adult entertainment film actress could have been particularly concerning to voters, given the October 2016 release of the “Access Hollywood” recording, on which he proclaimed he was free as a celebrity to grab women’s private parts with impunity. And evidence was introduced at trial that the Trump campaign was particularly concerned about the effect such revelations would have had on women voters.

As prosecutors explained during their closing argument, “democracy gives the people the right to elect their leaders, but that rests on the fundamental premise that the voters have access to accurate information about the candidates.”[4] The Defendant sought “to deny that access, to manipulate and defraud the voters, to pull the wool over their eyes in a coordinated fashion.”[5]

Citizens Union has long worked in a non-partisan fashion to support the electoral process in New York, such as by removing barriers facing individual voters. Yet fully free and fair voting is not possible where candidates hide relevant information from voters with intent to violate state and federal law. When Defendant Trump falsified Manhattan business records to conceal a conspiracy to promote his own election, he acted to subvert that election’s integrity.

The Defendant’s Lack of Remorse

Defendant Trump utterly lacks remorse. The first words he spoke upon leaving the courtroom after hearing the verdict were: “This was a disgrace.” He then called the trial “rigged” and described himself as “a very innocent man.”[6]  These assertions go beyond maintaining a silence for the appeals process. In his first rally after the verdict, Defendant Trump reiterated: “I just went through a rigged trial in New York… where there was no crime. It was made up, fabricated stuff.”[7] And since the verdict, Defendant Trump has repeatedly denied both the existence of the crime and his own guilt.

Indeed, the day after the verdict, the Defendant characterized the trial as “very unfair,” smeared a witness for the prosecution as a “sleazebag,” and falsely described this Court as “a devil” who “literally crucified” a defense witness.[8]  Moreover, Defendant Trump has continued to attack the justice system and the fairness of his Manhattan trial at large rallies throughout the country.  His public pronouncements have force far beyond the New York court system; they serve to undermine our nation’s justice system generally.  And his attacks on the New York court system, with their wider implications, have been relentless.

Citizens Union wants to see the justice system thrive, and jurors, witnesses and all stakeholders encouraged to participate in it. The Defendant’s actions are inimical to that.

The Need for Deterrence

Both specific and general deterrence have been recognized as important purposes of punishment. The U.S. Supreme Court has repeatedly affirmed deterrence as a basis for criminal punishment, with Justice Scalia describing a criminal penalty’s “deterrent effect depend[ing] not only upon the amount of the penalty, but upon its certainty.”[9]

The jury found that Defendant Trump intended to interfere in the 2016 presidential election – to engage in a scheme to promote his candidacy through unlawful means. This same Defendant is now a 2024 Presidential candidate, and his past conduct raises concerns regarding the possibility that he will engage in such misconduct again in the context of this latest closely-contested election. Whatever sentence is imposed here should aim to deter him— and those who enable and follow him— from repeating that wrongdoing. As a pro-democracy organization that speaks for voters who were deprived of critically important information by this Defendant’s wrongdoing, Citizens Union has a strong interest in deterring any further electoral misconduct.

Other Considerations

Although Defendant Trump’s misconduct was particularly egregious and unique, arising as it did in the context of trying to influence a Presidential election’s outcome, his specific crime — falsification of business records— is relatively common in New York.  On the one hand, such an offense does not typically result in a custodial sentence; on the other hand, it is also not uncommon for a defendant convicted of such a felony offense to receive one.[10] We, of course, recognize that sentencing a former and possible future President presents enormous complexities, not the least of which is that it is occurring in the midst of a Presidential election campaign. Equal application of the law remains the guiding principle of any sentencing, bringing to mind the legal maxim: “Justice is blind.”

Conclusion

Citizens Union recognizes that the decision confronting the Court is a weighty one. We offer our views in the public interest and in the interest of New York voters, just as we have expressed our views for more than 125 years on a wide array of issues affecting our democracy. We appreciate the opportunity to be heard and thank the Court for its consideration.

Respectfully,

cc:

District Attorney, County of New York (via email)
Defense Counsel (via email)

Read the PDF version here

---

End notes

[1] Citizens Union, Elections and Voting, Citizens Union (n.d.), /portfolio-item/elections-and-voting/.

[2] See Frank O. Bowman III, “The Case for Imprisoning Donald Trump,” MSNBC, (Jun. 4, 2024), available at https://www.msnbc.com/opinion/msnbc-opinion/donald-trump-jail-sentence-trial-verdict-rcna155323. See also Norman L. Eisen, “What Sentencing Could Look Like if Trump Is Found Guilty,” The New York Times (Apr. 18, 2024), available at https://www.nytimes.com/2024/04/18/opinion/donald-trump-trial-prison.html.

[3]  Rachel Maddow, “I was in the courtroom with Trump. He seemed miserable,” MSNBC, (Apr. 23, 2024), available at https://www.msnbc.com/rachel-maddow-show/maddowblog/crux-case-trial-donald-trump-rcna149026.

[4] Ella Lee and Zach Schonfeld, “All eyes on Michael Cohen in Trump trial closings,” The Hill, (May 28, 2024), available at https://thehill.com/regulation/court-battles/4690147-michael-cohen-trump-hush-money-trial-closing-arguments/.

[5] Id.

[6] C-Span, May 30, 2024, Former President Trump Speaks After Guilty Verdict in Hush Money Trial, https://www.c-span.org/video/?536021-101/president-trump-speaks-guilty-verdict-hush-money-trial

[7] C-Span, Jun. 6, 2024, Former President Trump Speaks at Turning Point Action Town Hall in Arizona, https://www.c-span.org/video/?536217-1/president-trump-speaks-turning-point-action-town-hall-arizona

[8] AP, May 31, 2024, Trump tries to move past his guilty verdict by attacking the criminal justice system, https://apnews.com/article/trump-2024-campaign-trial-4629840240cb308c5eae335532ad17ed.

[9] Harmelin v. Michigan, 501 U.S. 957, 989 (1991).

[10] For a fuller explanation of sentencing for this crime, see Norman L. Eisen, Samara Angel, Riley Pynnonen and Alexandra Herrera, Should Trump Get Jail Time? A Survey of Sentences for Falsifying Business Records in the First Degree (June 26, 2024)  https://www.justsecurity.org/97186/trump-sentencing-cases-survey/