In March 2023, Donald Trump became the first former U.S. president to be charged with a crime. And barring any last-minute delays, next week he will become the first former U.S. president to stand trial as a criminal defendant. Trump’s indictment followed well-publicized investigations into whether he attempted to subvert the 2020 presidential election in Georgia, conspired to prevent the peaceful transfer of power, and secreted classified documents to his post-presidency home.

Although he was eventually indicted in each case, his first indictment resulted from none of those investigations.[1] Instead, a New York state grand jury charged the former president with 34 counts of falsifying business records during his 2016 presidential campaign as part of an alleged effort to cover up an extramarital affair.[2] More specifically, Trump was charged with violating a New York statute that prohibits making a “false entry in the business records of an enterprise” and makes doing so with an intent to commit or conceal another crime (in his case, violations of election and tax laws) a felony.

Commentators were quick to pronounce the New York district attorney (DANY)’s case against Trump to be a “weak” one. Those pronouncements, however, rarely focused on the sufficiency of the evidence DANY will marshal in attempting to prove the charged offenses. Rather, they often turned on the statute itself, as if to ask, in disbelief, “is the first indictment of a former president really going to be over a mere recordkeeping violation?” For those holding that view of the case, if a prosecutor were to pursue such an historic prosecution, it should be over substantive crimes rather than violations derivative of some other conduct.

The People v. Donald J. Trump invites a deeper consideration of the normative and pragmatic bases for criminalizing recordkeeping-related conduct. In a new article, I observe that recordkeeping crimes are more than mere foot faults pursued when meatier offenses cannot be charged. Rather, I argue that recordkeeping prohibitions in connection with criminal activity are justified because they enable illicit conduct. In Trump’s case, for instance, prosecutors allege that recordkeeping misconduct enabled him to illicitly evade public-disclosure obligations and thus conceal information that might have been material to voters amidst a presidential election.

Recordkeeping, in other words, can be necessary to the commission of more substantive violations. Although this point finds its readiest application in white-collar contexts, it applies with equal power to any illicit activity involving organizational complexity or continuity, including in organized street crime. Trump, for example, has been accused of recordkeeping offenses involving the finances of his real-estate business that, despite allegedly adulterous origins, are essentially white-collar in nature. But as a criminal defendant, he finds company among a range of actors – from wayward accountants to drug dealers to terrorists and even to abortion-rights outlaws[3] — for whom recordkeeping was helpful, even necessary, for pursuing illegal ends. Until, of course, those records risked turning state’s evidence.

In considering Trump’s and other cases, my article presents a theory of recordkeeping as essential to organizationally complex and long-lived illicit activity. This theory points to the use of records by illicit actors as being criminogenic in that it enables and increases returns to crime. That finding makes criminal recordkeeping meaningful for thinking about complex illicit activity. Indeed, against a conventional wisdom that criminal actors do not, or at least ought not, keep records, the article shows that criminal recordkeeping can be rational. More pragmatically, the theory can inform efforts to deter, detect, and punish illicit activity. Given that illicit acts often occur inside otherwise lawful organizations, the article yields further applications for corporate compliance. Specifically, it calls for interventions that at the margin discourage the creation of criminal business records (because they enable further misconduct) but that also encourage their preservation once created (to increase the risks of detection and thus to promote deterrence).

The New York statutes that Trump will stand trial for violating are not unique: at least six other states have adopted substantively identical statutes.[4] The New York statute prohibiting falsifying business records in the second degree (a misdemeanor) provides as follows:

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

1. 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.[5]

The statute prohibiting falsifying business records in the first degree (a felony) requires an additional element:

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.[6]

As statutes prohibiting the production of criminal business records, New York law suffers two significant gaps: its coverage excludes both production of true records and criminal acts that do not involve fraudulent intent. The law criminalizes only the production of false or deceptive records. That is, its first subsection prohibits directly creating a false business record, and its other three subsections prohibit acts that render a business record, on the whole, false or deceptive. This focus is consistent with the text’s “intent to defraud” element. As an anti-fraud statute, there would be no point to prohibiting true and complete records because they would lack the tendency to deceive third parties, such as contractual counterparties or financial institutions. False records created for fraudulent purposes facilitate crime and so their production is worth prohibiting. But, in its focus as an anti-fraud statute, New York law is inadequate for preventing the production of true records that also facilitate criminal activity or, more broadly, the production of records that facilitate non-fraud-based crimes.

In light of these gaps, I argue that the statutes should be expanded to cover not only false business records but also true business records intended to facilitate crime (whether or not an act involves fraudulent intent). I propose that New York and other states adopt the following revision:

A person is guilty of falsifying producing criminal business records in the second degree when, with intent to defraud or commit another crime or to aid or conceal the commission thereof, he:

1. 1. Makes or causes a true or false entry in the business records of an enterprise; or
   2. Alters, erases, obliterates, deletes, removes or destroys a true or false 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 Producing criminal business records in the second degree in which any intended fraud or other crime is a felony is a class E felonyA misdemeanor. Any other production of criminal business records is a class A misdemeanor.

ENDNOTES

[1] State v. Donald J. Trump, Clerk No. 23SC188947, Indictment (Fulton Cty., Ga. Supr. Ct. Aug. 14, 2023); United States v. Donald J. Trump, Case 1:23-cr-00257-TS, Indictment (D.D.C. Aug. 1, 2023); United States v. Donald J. Trump, et al., Case 9:23-cr-80101-AMC, Superseding Indictment (S.D. Fla. July 27, 2023).

[2] People v. Donald J. Trump, Indictment (N.Y. Cty., N.Y. Sup. Ct. Mar. 30, 2023).

[3] See Laura Kaplan, The Story of Jane: The Legendary Underground Feminist Abortion Service (1995).

[4] See Ala. Code § 13A-9-45; Alaska Stat. § 11.46.630, 11 Del. C. tit. § 871; Haw. Rev. Stat. § 708-872; Ky. Rev. Stat. § 517.050; Or. Rev. Stat. § 165.080.

[5] N.Y. Penal L. § 175.05.

[6] N.Y. Penal L. § 175.10 (emphasis added).

This post comes to us from Professor Andrew Jennings at Emory University School of Law. It is based on his recent paper, “Criminal Recordkeeping,” forthcoming in the Washington University Law Review and available here.