Manhattan District Attorney Alvin Bragg’s historic indictment of Donald Trump could hinge on an untested legal theory, raising perils for prosecutors as they seek a conviction.
The indictment handed down by a New York grand jury on Thursday remains under seal until his arrest, and the exact nature of the criminal charges against Trump is unclear.
However, the charges reportedly stem from whether Trump falsified business records when he reimbursed his former lawyer and fixer Michael Cohen for hush money payments to porn star Stormy Daniels during his 2016 campaign.
The New York state charge of falsifying business records would be a misdemeanor, unless it was committed to further or cover up another crime.
Bragg reportedly alleges the second crime is the federal election law violation to which Cohen pleaded guilty in 2018, admitting the payment to Daniels was an unregistered donation to Trump’s presidential campaign.
That theory would rely on proving federal violations by a then-candidate for federal office in state court, something experts believe has never been attempted in New York.
George Washington University law professor Jonathan Turley slammed the basis of that case as ‘legally pathetic’ — though he warned that the indictment could reveal previously unknown charges when unsealed.
George Washington University law professor Jonathan Turley (right) slammed the reported basis of the Manhattan case against Trump as ‘legally pathetic’
Manhattan District Attorney Alvin Bragg’s historic indictment of Donald Trump could hinge on an untested legal theory, raising perils for prosecutors as they seek a conviction
‘The indictment may come out with a crime that none of us have heard of,’ Turley said in an interview with Fox News after Bragg confirmed the indictment.
‘But for many months, this bootstrapping theory has been put out there, this idea that you could take a misdemeanor under New York law that has expired, that has a two year statute of limitations, and revive it by connecting it to a federal crime, in this case, the federal election violation,’ he added.
‘And if that is the basis for the indictment, I think it’s rather outrageous. I think it’s legally pathetic,’ he added.
The case potentially raises a host of tricky legal questions, which could potentially lead a judge to dismiss the case, or raise issues for prosecutors on appeal.
But attorney Kevin O’Brien, a former federal prosecutor and partner at Ford O’Brien Landy, told DailyMail.com that the case is ‘serious on several levels, even if it winds up only being a misdemeanor charge.’
O’Brien said ‘the charges are solemn, public, and voted on by a body of his peers’ and predicted that ‘while Trump will move to dismiss on various grounds, the motions are unlikely to succeed.’
At the center of Bragg’s presumed case is the $130,000 that Cohen admitting paying to Daniels during the 2016 campaign.
In federal court, Cohen pleaded guilty to campaign finance violations and testified that Trump directed him to pay Daniels and another woman to secure their silence.
Federal prosecutors said Trump’s family real estate company reimbursed Cohen and falsely accounted for it as a legal expense, but never charged Trump with a crime.
Former President Donald Trump arrives to board his airplane for a trip to a campaign rally in Waco, Texas on Saturday
A Manhattan grand jury has voted to indict former president Donald Trump over hush money paid on his behalf to pornstar Stormy Daniels, seen with him above
Cohen and Daniels have said the payment was to buy her silence about a sexual encounter she had with Trump in 2006, when Trump was married to his current wife, Melania. Trump denies having an affair with Daniels and any wrongdoing.
Bragg launched his probe after his predecessor Cyrus Vance twice looked into the payment and did not bring charges, in part because winning a conviction would rely on untested legal strategies, according to a recent book by Mark Pomerantz, a former prosecutor in the office.
The case was dropped and revived so many times that it became known in the DA’s office as a ‘zombie case,’ Pomerantz wrote.
‘The bottom line for me was that the ‘zombie’ case was very strong,’ Pomerantz wrote in the book, People vs. Donald Trump. ‘But was it a crime under New York law?’
As Trump was a candidate for federal office at the time of the alleged crime, it was legally uncertain whether the intent to advance or conceal a federal crime could convert a state-level falsification of records charge into a felony, Pomerantz wrote.
‘It’s an untested theory, but it’s not every day that a candidate for president violates a state law,’ Jerry Goldfeder, an election law specialist at the Stroock law firm, told Reuters when asked whether state law could apply to a candidate for federal office.
After hiring an outside law firm for advice, Vance’s office decided not to bring any charges, Pomerantz wrote.
‘These types of crimes don’t necessarily have a clean fit into the applicable law,’ Sarah Krissoff, a partner at Day Pitney and a former federal prosecutor, told Reuters before the charges were filed.
At the center of Bragg’s presumed case is the $130,000 that Michael Cohen admitting paying to Daniels during the 2016 campaign. Pictured: Cohen arrives to testify on March 15
Trump’s lawyer, Joe Tacopina (seen in 2021), said Thursday that the former president didn’t commit any crime and vowed to ‘vigorously fight this political prosecution in court’
Trump’s lawyer, Joe Tacopina, said Thursday that the former president didn’t commit any crime and vowed to ‘vigorously fight this political prosecution in court.’
Tacopina has accused prosecutors of ‘distorting laws’ to try to take down the former president.
He described Trump as a victim of extortion who had to pay the money to Daniels because the allegations were going to be embarrassing to him ‘regardless of the campaign.’
‘He made this with personal funds to prevent something from coming out – false, but embarrassing to himself, his family, his young son. That’s not a campaign finance violation, not by any stretch,’ Tacopina told ABC’s Good Morning America before the indictment.
