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Trump faces 34 felony counts of falsifying business records to cover damaging info

STEVE INSKEEP, HOST:

OK. It's been a busy news week, and it's only Wednesday. Michel Martin and I are here in Studio 31 in Washington, D.C., and we've called former federal prosecutor Shan Wu, who's going to help us to analyze the Trump indictment.

Mr. Wu, welcome back.

SHAN WU: Oh, thanks for being here.

INSKEEP: Can you help me figure something out here? It's obvious that Trump made payoffs. I mean, there's been court documentation of that already. There's a lot of evidence in the indictment that he falsified business records, but we're told that is normally a misdemeanor. What makes this a more serious crime - a felony - 34 times?

WU: Well, the answer is it can be a misdemeanor if the falsification is not tied to covering up a different crime. And so the key here is, what is the other crime that the falsification was intended to cover up? And it's a little bit vague. The DA has left themselves some wiggle room here by mentioning election laws, and there's a hint that there might be some mischaracterization of tax issues as well. But that's the key, is pairing it with the intent to cover up a different crime. That's how you get to the felony status.

INSKEEP: Well, when you say that the DA has left it a little vague or left himself a little wiggle room, that sounds like wiggle room for the defense. So I would ask, is there anything novel or unusual about prosecuting someone at this level saying this is 34 different felonies?

WU: There's nothing novel about it being a felony. That happens all the time with the falsification charge. What could be novel is if the pairing is based on federal campaign finance. That's what a lot of the controversy has been. If it turns out that the other crime we're talking about - which they don't have to prove; it just has to be the intent to cover it up - is the federal campaign violation, which Michael Cohen had pled guilty to, that is a novel part because there's a question of, can the state crime be connected to the federal crime? And that's usually what all the commentators have been going back about. But having the falsification bump up to a felony - not at all unusual, happens all the time in New York - and even for New York state election law violations, that being paired to it - that's been done before. The question is how much will the DA be depending on the federal violation?

MICHEL MARTIN, HOST:

Mr. Wu, it's Michel Martin. So the indictment was just unsealed yesterday. We've been hearing a lot of commentary since then about the relative strength or weakness of this case. So I'm going to ask you, if you were the prosecutor here, what would worry you most about trying this case? And then, of course, I want to hear, from the defense side, what would worry you most if you were defending Mr. Trump?

WU: I think, as a prosecutor, the first hurdle is going to be the barrage of legal arguments that Trump's team is going to make trying to get the indictment dismissed, for example, the issue we're talking about - if there's a lot of reliance on the federal charge to bump it up to the felony. Once I got past that as a prosecutor, the factual part would not worry me as much, but, certainly, would have to expect there to be a lot of cross-exam attacks on Michael Cohen's credibility as well as, we are now learning, David Pecker, the former National Enquirer editor, is going to be a very important witness as well. So I'd expect to be attacked on those fronts.

For the defense, my biggest worry would be this is not a hard case for the jury to understand - very easy to present. It's a man who wanted to buy silence. That would worry me some 'cause it's easy for the jury to get.

INSKEEP: Are the other cases, though, more significant here? And by other cases, of course, I'm referring to a couple of other investigations, one of them in Georgia of Trump's effort to overturn the 2020 election. Ultimately, are those, in your mind, more serious charges that could be coming?

WU: They're not in terms of the significance of the charges. The penalties could be more severe. I mean, it looks like these would be, at the felony level, in the four-year-max range. Now, of course, you could theoretically run them all consecutively, which probably would not happen. So in terms of the penalties, this one might be less. But the significance - I think they're similar in the sense that they're both - they're all affronts to democracy, trying to interfere with the campaign, trying to suppress negative aspects which could hurt the candidacy. The reason why that's important as a campaign violation - campaign finance violation - is the fact that it does interfere with elections, and that's why we want transparency. So I think it is significant.

INSKEEP: In a few seconds, are you confident that you could make the case that Trump is being treated like any other defendant?

WU: Oh, absolutely. In fact, he's being treated rather deferentially yesterday with there being no mugshot, no handcuffs. I think he's being treated quite equally at the moment. And also, his remarks, you know, really have been rather outrageous. And the judge is still, at this point, not immediately saying I'm going to impose any kind of a gag order on you. He's cognizant of those issues.

INSKEEP: He's just saying he wants to make sure the evidence doesn't get...

WU: Right.

INSKEEP: ...All over the place. Former federal prosecutor Shan Wu. Thanks so much.

WU: Sure thing. Transcript provided by NPR, Copyright NPR.