Late last month I wrote exactly the kind of piece that makes every legal analyst nervous. I tried to anticipate the Manhattan grand jury’s indictment of Donald Trump and to evaluate its (likely) merits. In my view then, an indictment wouldn’t be frivolous, but it would be unwise — mainly because it was expected to rely on a largely untested legal theory that would transform the business falsification misdemeanors Trump is accused of into felonies by tying the misdemeanors to other crimes that either hadn’t been prosecuted or rest on contentious legal arguments.
In other words, the case wasn’t expected to be nearly as straightforward as the possible felony case in Georgia relating to Trump’s effort to overturn the election result in Georgia, the possible federal felony case relating to Trump’s effort to disrupt the peaceful transfer of power or the possible federal felony case relating to Trump’s mishandling of classified documents and efforts to obstruct justice.
I’ve now read the grand jury’s indictment and the statement of facts supporting the indictment, and my conclusion is unchanged. There are no real legal surprises. The theory is exactly what we anticipated — that Trump falsified business records with the “intent to commit another crime,” and it’s the controversial other crime that converts the crime of falsification of business records from a misdemeanor to a felony.
But the indictment is complicated, and so is the analysis, so rather than rehash an argument I made less than two weeks ago, I’d like to do something different: answer the questions I’ve already received about the indictment, to help explain the nature of it and the best arguments for and against District Attorney Alvin Bragg’s case. So, without further ado, let’s answer some common questions.
I don’t have the time or expertise to read legal documents. What’s the short version of the prosecution’s case?
Trump entered into a scheme with his attorney Michael Cohen and other individuals to suppress damaging information about extramarital affairs, in the hopes of influencing the 2016 election. This scheme included a number of unlawful actions, including falsifying business records to conceal the nature of hush-money payments made to the adult film actress Stormy Daniels, violating federal campaign finance law and New York state election law (and potentially New York state tax laws).
I read that there were 34 felony counts. Do they relate to any transactions beyond Stormy Daniels?
No, Trump is charged with felony counts related only to the Daniels hush-money payments. Each count relates to a discrete stage of each payment made to Cohen to reimburse him for paying Daniels.
According to the prosecutor’s documents, Trump agreed to repay Cohen in monthly installments. Each month — from February 2017 to December 2017 — Cohen submitted an invoice, and Trump or a Trump-affiliated organization created a ledger entry, and Trump or a Trump-affiliated organization wrote a check to Cohen. Each of those actions, each month, is a separate count in the indictment.
If the prosecutor alleged that Trump’s false records were part of a scheme to commit other crimes, what were those other crimes?
Only one other crime is spelled out in the statement of facts — a violation of federal campaign finance law. The prosecution points to Cohen’s guilty plea in the United States District Court for the Southern District of New York, in which he admitted to violating federal campaign finance law as part of both the Daniels hush-money scheme and a separate scheme to pay a former Playboy model named Karen McDougal $150,000 through The National Enquirer to buy her silence about a 10-month affair she says they had.
In a news conference after Trump’s arraignment, Bragg argued that Trump also violated a number of additional New York State laws, including a criminal statute that prohibits conspiracies “to promote or prevent the election of any person to a public office by unlawful means.”
If the prosecutor alleged that Trump committed other crimes, why didn’t he charge those crimes?
The short answer is that a local prosecutor cannot charge Trump for committing federal crimes, and he does not have to file charges for other state crimes to prove that Trump committed felony falsification of business records. As Bragg argued in his news conference, “The indictment doesn’t specify them because the law does not so require.”
To be clear, however, prosecutors will ultimately have to establish the existence of those other crimes they say Trump committed.
What is the strongest part of the district attorney’s case against Trump?
The facts. There is abundant evidence — including both witness testimony and documentary evidence — that Trump entered into a scheme to pay off people who could have embarrassed him in the last days of the 2016 campaign. (If merely paying off paramours were itself a crime, then Trump would almost certainly be guilty.)
Moreover, the prosecutor’s case against Trump is strengthened by Cohen’s guilty plea. In his plea, Cohen confessed to violating federal campaign finance laws in connection to the Daniels and McDougal payoff schemes. Under federal campaign finance law, a key question is whether the Daniels payments were made to influence the election. Cohen, during his guilty plea in federal court, specifically stated that he “participated in this conduct” for “the principal purpose of influencing the election.”
Bragg also presented evidence that Trump considered delaying the payments as long as he could; if he could delay until after the election, he suggested he wouldn’t make the payoffs at all, “because at that point it would not matter if the story became public,” according to the statement of facts accompanying the indictment. This strongly implies that one of the Trump team’s past defenses — that he made the payments not to help him win the election but to prevent embarrassment to his wife and family — is highly implausible.
What is the weakest part of the district attorney’s case against Trump?
The law. First, there is a very real question as to whether the relevant New York state election statutes are pre-empted by federal law. Under pre-emption doctrine, federal law essentially trumps state law when federal law conflicts with state law or when federal law occupies the field. When the federal government comprehensively regulates an area of law, courts will often apply only federal law and ignore state or local statutes. Thus, the state election statutes that constitute the other crimes that Bragg relies on may not apply to Trump.
Second, the relevant federal election law is unsettled, and Cohen’s guilty plea does not provide prosecutors with a true legal precedent to claim that the matter is decided. In 2018 a former member of the Federal Election Commission, Bradley A. Smith (a Republican), made the compelling argument, in a National Review article titled “Michael Cohen Pled Guilty to Something That Is Not a Crime,” that the Supreme Court would not be sympathetic to the claim that a hush-money payment was a campaign contribution for purposes of federal criminal law. “When faced with the vague, sweepingly broad ‘for the purpose of influencing any election’ language,” Smith argued, “the Supreme Court has consistently restricted its reach to brightly defined rules.”
I disagreed with Smith at the time, arguing that the relevant law did encompass Cohen’s crimes, but I freely acknowledge that there is no binding legal precedent that supported either Smith’s or my arguments. Smith could well be right, and I could well be wrong. Our arguments depended more on legal predictions than controlling precedent. Indeed, the uncertain scope of the underlying federal election law claims is one factor that renders Bragg’s theory of the case largely untested.
Are there any relevant historical analogies that can help me understand the arguments?
To understand how the law can stymie a prosecution even when the extremely sleazy facts are quite clear, I’d point to United States v. McDonnell, the Supreme Court case that reversed the bribery conviction of a former Virginia governor, Bob McDonnell. The facts were embarrassing for him. He and his wife received loans, gifts and vacations from a supporter at the same time that McDonnell arranged meetings, hosted events and contacted other state officials in a manner that helped his benefactor.
The question before the Supreme Court wasn’t whether McDonnell received the funds or provided the favors but rather whether those favors constituted official acts within the meaning of the relevant federal law. In an 8-to-0 vote, the Supreme Court said no. Not everything that’s sleazy is illegal, and the question for Trump isn’t so much whether his conduct was morally wrong but whether it’s unlawful.
There are those who look at the vast scope of Trump’s corruption and wrongdoing before, during and after his time in the White House and wonder whether the proper historical analogy for the Manhattan prosecution is the prosecution of Al Capone for tax evasion. Isn’t it appropriate to bring down gangsters using even the most mundane of financial crimes?
Yes, absolutely, but only as long as they’re actually guilty of the more mundane crimes. There is overwhelming evidence that Trump did falsify business records. But that crime, by itself, is a mere misdemeanor with a two-year statute of limitations. The prosecution’s felony charges will stand or fall on the legal argument that Cohen violated federal law or that relevant New York statutes aren’t pre-empted and that Trump violated them.
In short, the Trump prosecution faces serious legal questions, and the answers to the legal questions will decide the case far more than any factual dispute. The evidence shows rather clearly that Trump engaged in a scheme to pay off women who said they were his paramours, in order to influence the 2016 election. That is clearly immoral and would be extremely embarrassing to anyone who has shown signs that he is capable of embarrassment. But whether it was unlawful is the key question that will decide Trump’s legal fate.
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