The New York indictment of Donald Trump, which won't be unsealed until he is arraigned early next week, reportedly includes "more than two dozen counts." That's a surprisingly large number if the case is based entirely on the $130,000 that Trump lawyer Michael Cohen paid porn star Stormy Daniels in 2016 to keep her from talking about her alleged 2006 affair with Trump. The litany of charges reinforces the impression that Manhattan District Attorney Alvin Bragg, a Democrat, is trying to justify this belated and dubious prosecution by transforming minor misconduct into a case that looks serious until you consider the underlying allegations.
According to reporting based on anonymous sources close to the investigation, Bragg is relying mainly on a state law that makes it a misdemeanor to falsify business records "with intent to defraud." Trump, who reimbursed Cohen for the hush payment to Daniels, allegedly broke that law when his business misrepresented the reimbursement as payment for legal services under a nonexistent retainer agreement. If the Trump Organization recorded the payment in more than one document, those records could be the basis for several counts under this statute. But each of those counts would still be a Class A misdemeanor, punishable by a maximum fine of $1,000 and/or up to 364 days in jail.
Falsification of business records 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." This is where federal election law comes into play: Federal prosecutors argued that Cohen's payment to Daniels amounted to an excessive campaign contribution, and he accepted that characterization in a 2018 plea agreement.
Since Cohen said he was acting at Trump's behest, the implication was that Trump had solicited and accepted an illegal campaign contribution. Yet the Justice Department never prosecuted Trump for that alleged violation, even after he left office. In 2021, an evenly divided Federal Election Commission (FEC) declined to pursue charges against Trump, his business, or his campaign.
Federal prosecutors would have faced at least two daunting obstacles in trying to make a case against Trump based on the hush money payment. First, as former FEC Chairman Bradley Smith pointed out after Cohen's guilty plea, "it is unclear whether paying blackmail to a mistress is 'for the purpose of influencing an election,' and so must be paid with campaign funds, or a 'personal use,' and so prohibited from being paid with campaign funds." Smith argued that "the best interpretation of the law is that it simply is not a campaign expense to pay blackmail for things that happened years before one's candidacy—and thus nothing Cohen (or, in this case, Trump, too) did is a campaign finance crime."
The distinction between a personal expenditure and a campaign expenditure hinges on the question of whether Trump was trying to avoid publicity that could have hurt his chances of defeating Hillary Clinton or was merely trying to avoid embarrassment and/or spare his wife's feelings. While the proximity of the payment to the election supports the first inference, convicting Trump of violating federal law would have required proving that hypothesis beyond a reasonable doubt.
The difficulty of doing that was illustrated by the 2012 trial of former North Carolina senator and Democratic vice presidential nominee John Edwards, who was accused of accepting several hundred thousand dollars in illegal campaign contributions from a wealthy supporter. Edwards used the money to hide an extramarital affair and the baby that resulted from it. Federal prosecutors argued that his intent was to avoid a scandal that would have compromised his campaign for his party's 2008 presidential nomination.
Edwards argued that covering his mistress's living expenses was a personal expenditure aimed at deceiving his wife, who was dying from cancer at the time. Jurors evidently favored that interpretation, because they acquitted Edwards of one charge while deadlocking on five others.
The other major challenge in proving a case like this is related to the ambiguity that the Edwards jury confronted: Prosecutors have to prove that the defendant "knowingly and willfully" violated federal election law. In Trump's case, it is not clear that he had the requisite intent, because he seemed genuinely confused about what federal election law requires.
In addition to the count based on the payment to Daniels, Cohen pleaded guilty to causing an illegal corporate campaign donation by arranging for The National Enquirer to pay former Playboy model Karen McDougal $150,000 for her story about sex with Trump, which it kept under wraps. "Those two counts aren't even a crime," Trump told Fox News after Cohen's guilty plea. He emphasized that he reimbursed Cohen with his own money, as opposed to campaign funds, which "could be a little dicey."
Responding to those comments, CNN political correspondent Chris Cillizza observed, "What Trump doesn't know about campaign finance law is, um, a whole lot." But if Trump did not understand the law, which Smith argues is hazy on this point, and/or did not anticipate how federal prosecutors would interpret it, he did not "knowingly and willfully" violate it.
"With respect to both payments," the sentencing memo in Cohen's case says, "he acted in coordination with and at the direction of Individual-1″—i.e., Trump. But that does not necessarily mean that Trump understood the payments to be illegal, which would have required rejecting what a former FEC chairman describes as "the best interpretation of the law" and recognizing a distinction that Smith thinks is "unclear" at best.
In short, federal prosecutors probably had good reasons for declining to charge Trump. Yet now Bragg is relying on that uncharged and unproven federal crime to prosecute Trump for a felony under state law. There are a couple of problems with that.
First, if Trump did not think he was violating federal law, it is hard to see how he could have falsified business records with the intent of concealing that crime. Second, it is not clear that a violation of federal election law counts as "another crime" under the New York statute.
The most promising basis for that claim seems to be Section 17-152 of New York's election law, which 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." Cohen and Trump are two people, and Cohen says they conspired to promote Trump's election by paying off Daniels and arranging the National Enquirer payment to McDougal.
The Justice Department (and Cohen) described both payments as violations of federal election law. If that counts as "unlawful means," the violation of Section 17-152 could qualify as the other crime that Trump allegedly was trying to conceal by falsifying business records.
"Under New York law," Joshua Stanton and three other attorneys say in a recent Just Security essay, "'unlawful means' appears to be construed broadly—and is not limited to crimes….In a 100-year-old opinion, the state appellate court with authority over Manhattan ruled that 'unlawful means' as written in another statute does not necessitate 'the commission of a crime.' Instead, the court held that 'unlawful means' simply refers to conduct 'unauthorized by law.'"
That definition, Stanton et al. say, "is consistent with what we would expect to find when construing the meaning of section 17-152." According to the New York Court of Appeals, they note, undefined statutory terms "are generally to be given their 'usual and commonly understood meaning,'" and "dictionaries are 'useful guideposts' in ascertaining that meaning." They quote the Merriam-Webster definition of unlawful as "not lawful" or "illegal."
Assuming that New York courts read "unlawful means" broadly, Section 17-152 could supply the underlying "crime" that elevates falsification of business records to a Class E felony. That would essentially mean transforming two misdemeanors (falsifying business records plus conspiring to promote someone's election through "unlawful means") into a felony. Based on the same assumption, Trump also could face separate misdemeanor charges under Section 17-152 for the Daniels and McDougal payments.
New York's statute of limitations ordinarily requires that misdemeanors be prosecuted within two years and that Class E felonies be prosecuted within five years. But that law includes an exception for "any period following the commission of the offense during which…the defendant was continuously outside this state."
Trump lived largely in Washington, D.C., during his presidency, and in 2019 he switched his official state of residence to Florida. In determining whether the prosecution can proceed, a 1999 ruling by the New York Court of Appeals indicates, the time that Trump spent in D.C. and Florida should be subtracted from the time that has elapsed since the Trump Organization misrepresented Cohen's reimbursement.
Assuming that Bragg can get around the statute of limitations, the question remains: Why bring this case at all, let alone six years after the conduct underlying it?
There was nothing inherently criminal about paying off Daniels or McDougal. Those payments become criminal only by construing them as illegal campaign contributions. Although that is how federal prosecutors interpreted the law in Cohen's case, they conspicuously declined to charge Trump under the same theory. Manhattan prosecutors under Bragg's predecessor for years mulled the possibility of building a state case based on the same conduct and ultimately decided it would not fly.
Bragg's reconsideration of that conclusion reeks of desperation to punish a reviled political opponent, which is exactly how Trump and his supporters are portraying it. When you decide to make history by prosecuting a former president, especially when that former president is seeking that office again by running against an incumbent who is a member of your own party, you had better have a solid case involving serious crimes. Bragg, who is relying on debatable facts, untested legal theories, and allegations that are tawdry but far from earthshaking, does not seem to have such a case.
"We're going to indict a former President for, essentially, misdemeanor falsification of business records?" asks former Rep. Peter Meijer (R–Mich.), who voted to impeach Trump after the Capitol riot in 2021. "We're crossing the Rubicon for that? That seems like f—ing weak sauce."
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