In our March 17 edition, 18 days before Manhattan District Attorney Alvin Bragg released the text of the Trump indictment, we questioned why he was so keen on charging the former president with felonious conduct over the payment of “hush money” to an adult movie star. We noted that the case was ridiculed by most legal experts as suffering from any number of fatal flaws, including but not limited to statute of limitations problems, the unprecedented merging of federal and state charges, novel constructions of key statues, and seemingly dispositive contrary rules of jurisdiction.
During his campaign for DA, Mr. Bragg promised voters to go after Trump and hold him “accountable.” He was also quoted frequently in The New York Times reminding voters that, during his earlier days as a New York State Assistant Attorney General, he sued Mr. Trump’s administration “more than a hundred times.”
But that only speaks to why he would want to charge Trump, not why he would persist in doing so in the face of almost universal derision.
The indictment confirms that the core element in the felony case against Trump is that he “repeatedly and fraudulently falsified New York business records.” Falsifying business records is a misdemeanor in New York, only becoming a felony if it were done with “an intent to commit another crime or to aid or conceal the commission thereof.” So, right out of the gate, a jury would have to determine Trump’s state of mind when he allegedly “cooked the books” – a promising prospect for Bragg.
Going forward, however, Bragg would have to persuade a jury that what Trump had in mind was concealment of a particular crime or crimes. While the indictment itself is strangely silent on the crime issue, Bragg alluded to three of them in both an accompanying fact sheet and at a press conference.
One: The hush money payment was designed to help Trump win the 2016 presidential election by keeping the adult movie star from going public with negative information about him, thereby constituting a violation of the federal cap on federal election campaign contributions.
Two: The payment was a violation of New York State election law that “makes it a crime to conspire to promote a candidacy by unlawful means.”
Three: At the time of the alleged record falsifications, Trump made false statements “that were planned to be made [italics ours] to tax authorities.”
It is noteworthy that the indictment does not charge Trump with items one and two from this list. Violation of the federal cap falls exclusively within federal jurisdiction; in fact, the federal authorities already investigated Trump and did not charge him. As for Bragg’s reference to New York State election law, Trump is accused of talking about engaging in a violation, but is not being charged with an actual violation either. Finally, Trump is not being charged with tax evasion but rather with planning to deceive the tax authorities.
Judges may intervene and change the calculus here, but as it now stands, thanks to Bragg’s artful structuring, a New York jury likely unfriendly to Trump will literally define the case against Trump. He could well have a problem when he really shouldn’t.
