As jury selection begins this week in the New York criminal case against Donald Trump, we should revisit the question of exactly how Manhattan District Attorney Alvin Bragg plans to transform the former president's alleged falsification of business records into 34 felonies. Bragg, who is pursuing the first-ever prosecution of a former president, has cited several possible legal theories, and all of them are problematic in one way or another.
"The heart of the case," Bragg says, is Trump's attempt to influence the outcome of the 2016 presidential election by covering up his purported affair with porn star Stormy Daniels. As Bragg sees it, Trump "corrupt[ed] a presidential election" by hiding negative information from voters. Because there is nothing inherently illegal about that, Bragg is relying on a dubious chain of reasoning to charge Trump with felonies under New York law.
Shortly before the 2016 election, Michael Cohen, Trump's lawyer, paid Daniels $130,000 to keep her from talking about the alleged affair. In a 2018 plea agreement, Cohen, who will be the main prosecution witness in Bragg's case against Trump, accepted the Justice Department's characterization of that payment as an illegal campaign contribution. But Trump was never prosecuted for soliciting or accepting that purported contribution. Nor was he prosecuted for later reimbursing Cohen in a series of payments.
There are good reasons for that. The question of whether this arrangement violated federal election law hinges on whether the hush money is properly viewed as a campaign expense or a personal expense. That distinction, in turn, depends on whether Trump was motivated by a desire to promote his election or by a desire to avoid embarrassment and spare his wife's feelings.
Although the former hypothesis is plausible, proving it beyond a reasonable doubt would have been hard, as illustrated by the unsuccessful 2012 prosecution of Democratic presidential candidate John Edwards. The Edwards case, which was based on similar but seemingly stronger facts, foundered on the difficulty of distinguishing between campaign and personal expenditures.
In any event, the statute of limitations for federal election law violations is five years, and Bragg has no authority to prosecute people for such crimes. Bragg instead charged Trump with covering up his reimbursement of Cohen by disguising it as payment for legal services. Trump did that, according to the indictment, through phony invoices, checks, and ledger entries, each of which violated Section 175.05 of the New York Penal Law, which makes falsification of business records "with intent to defraud" a misdemeanor punishable by a maximum fine of $1,000 and/or up to a year in jail.
Under Section 175.10 of the penal code, that offense becomes a Class E felony, punishable by up to four years in prison, when the defendant's "intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof." The indictment, which was unveiled in April 2023, charges Trump with 34 counts under that provision but does not specify "another crime." A month later, Bragg's office suggested four possibilities:
The Federal Election Campaign Act
It is not clear that Trump violated that law, and the Justice Department evidently concluded there was not enough evidence to prosecute him for doing so. Given the fuzziness of the distinction between personal and campaign expenditures, it is plausible that Trump did not think the hush payment was illegal, in which case he did not "knowingly and willfully" violate the statute, as required for a conviction. And if so, it is hard to see how his intent in falsifying business records could have included an intent to conceal a violation of federal campaign finance law.
In any event, it is not clear whether a violation of federal law counts as "another crime" under Section 175.10. In 2022, The New York Times reported that prosecutors working for Bragg's predecessor, Cyrus R. Vance Jr., "concluded that the most promising option for an underlying crime was the federal campaign finance violation to which Mr. Cohen had pleaded guilty." But "the prosecutors ultimately concluded that approach was too risky—a judge might find that falsifying business records could only be a felony if it aided or concealed a New York state crime, not a federal one."
Section 17-152 of the New York Election Law
That provision says "any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor." But as the Times notes, "Federal campaign finance law explicitly states that it overrides—pre-empts, in legal terminology—state election law when it comes to campaign donation limits."
While Vance's prosecutors "briefly mulled using a state election law violation," the Times reported in 2022, they rejected that idea: "Since the presidential race during which the hush-money payment occurred was a federal election, they concluded it was outside the bounds of state law." Even without that complication, the "unlawful means" alleged here again hinges on the doubtful proposition that Trump "knowingly and willfully" violated federal election law.
Sections 1801(a)(3) and 1802 of the New York Tax Law
Section 1801(a)(3) applies to anyone who "knowingly supplies or submits materially false or fraudulent information in connection with any return, audit, investigation, or proceeding." Section 1802 applies to "criminal tax fraud," which includes filing a fraudulent return. According to the statement of facts that accompanied Trump's indictment, he and Cohen "took steps that mischaracterized, for tax purposes, the true nature of the payments made in furtherance of the scheme." How so?
Trump allegedly paid Cohen a total of $420,000, which included the $130,000 hush money reimbursement and "a $50,000 payment for another expense." Trump Organization CFO Allen Weisselberg "then doubled that amount to $360,000 so that [Cohen] could characterize the payment as income on his tax returns, instead of a reimbursement, and [Cohen] would be left with $180,000 after paying approximately 50% in income taxes."
If Cohen mischaracterized a reimbursement as income on state or city tax forms, that would be a peculiar sort of fraud, since the effect would be to increase his tax liability. This theory of "another crime" requires jurors to accept the proposition that tax fraud can entail paying the government more than was actually owed.
Sections 175.05 and 175.10 of the New York Penal Law
These are the same provisions that Trump allegedly violated by mischaracterizing his payments to Cohen. This theory presumably would require additional violations of the law against falsifying business records that the 34 counts listed in the indictment either facilitated or helped conceal. It is not clear what those might be, but we may find out during the trial, assuming Bragg actually relies on these provisions for "another crime."
Slate legal writer Mark Joseph Stern, who initially was "highly skeptical" of Bragg's case against Trump, says he is "now fully onboard." But Stern's reasoning seems to have less to do with the legal merits of the case than with the sense that this could be the last opportunity to stop Trump from reoccupying the White House.
"Obviously," Stern writes, "Trump's criminality during and after the 2020 election, including his work to overturn the outcome through an insurrection, is more serious than the Stormy Daniels payout. Much more serious; no debate there. It would be ideal if Trump faced trial for these alleged offenses first, because they marked a historic and devastating assault on democracy, culminating in an act of shocking violence. He deserves to be held accountable for these actions in open court, by a jury of his peers, before he has another chance to stage a coup. But thanks to Trump's persistent efforts to run out the clock—too often indulged by SCOTUS—it's now almost inconceivable that he will face such a trial before it's time to vote again. What's left, then, is this case."
Stern argues that Bragg's case, like the federal election interference case, is fundamentally "about elections: specifically, who has to follow the rules, and who gets to flout them." In paying off Daniels, he says, Trump acted on his "bedrock belief" that "he need not follow the rules that govern everybody else." But whether Trump actually broke those rules is a matter of serious dispute, the relevant statute of limitations has expired, and Bragg in any event does not have the authority to enforce federal campaign finance regulations.
After taking a long, hard look at potential state charges against Trump stemming from the payment to Daniels, Vance concluded they were too iffy to pursue. Now Bragg is desperately looking for a legal pretext to punish what he takes to be the essence of Trump's crime: keeping from voters information they might have deemed relevant in choosing between him and Hillary Clinton. But that is not a crime, and treating it as 34 felonies stretches the bounds of credulity as well as the bounds of the law.
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