As jury selection begins this week in the New York criminal case against Donald Trump, we should revisit the question of how exactly Manhattan District Attorney Alvin Bragg plans to turn the former president’s alleged falsification of business records into 34 felonies. Bragg, who is pursuing the first prosecution of a former president, cited several possible legal theories, and all 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 hiding his alleged affair with porn star Stormy Daniels. As Bragg sees it, Trump is “corrupt.”[ed] a presidential election” by withholding negative information from voters. Since there is nothing inherently illegal about this, Bragg relies on a dubious chain of reasoning to charge Trump with crimes under New York law.
Shortly before the 2016 election, Michael Cohen, Trump’s lawyer, paid Daniels $130,000 to prevent her from speaking about the alleged affair. In a 2018 plea deal, Cohen, who will be the prosecution’s star 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 alleged contribution. He nor was prosecuted for later reimbursing Cohen in a series of payments.
There are good reasons for this. The question of whether this deal 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 further his election or by a desire to avoid embarrassment and spare his wife’s feelings.
While the first hypothesis is plausible, proving it beyond a reasonable doubt would have been difficult, as illustrated by the failed prosecution of Democratic presidential candidate John Edwards in 2012. The Edwards case, based on similar but apparently stronger facts, foundered due to the difficulty to distinguish between electoral expenses and personal expenses.
In any case, the statute of limitations for violations of federal election law is five years, and Bragg has no authority to prosecute people for such crimes. Bragg instead accused Trump of hiding Cohen’s reimbursement by disguising it as payment for legal services. Trump did so, according to the indictment, through phony invoices, checks and accounting records, each of which violated Section 175.05 of the New York Penal Law, which makes falsification of business records “with intent to defraud” a crime punishable by up to a $1,000 fine and/or up to one year in prison.
Under Penal Code section 175.10, such an offense becomes a class E felony, punishable by up to four years in prison, when “the defendant’s intent to defraud includes the intent to commit another crime or to aid or conceal the commission thereof”. The indictment, filed 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 law
It is unclear whether Trump violated that law, and the Justice Department apparently concluded there was insufficient evidence to prosecute him. Given the blurry distinction between personal expenses and campaign expenses, it is plausible that Trump did not think the hush money was illegal, in which case he did not “knowingly and willfully” violate the statute, as required for a conviction. And if so, it is difficult to understand how his intent in falsifying corporate records could have included an intent to conceal a violation of federal campaign finance law.
In any case, it is unclear 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 violations that Mr. Cohen had claimed found guilty”. But “prosecutors ultimately concluded that the approach was too risky: A judge could find that falsification of business records could only be a crime if it aids or conceals a New York state, not federal, crime.”
Section 17-152 of the New York Election Law
That provision states that “two or more persons who conspire to promote or prevent the election of any person to public office by unlawful means, and whose conspiracy is carried out by one or more of the parties, shall be guilty of a misdemeanor.” But how The New York Times notes, “Federal campaign finance law explicitly states that it ignores – preempts, in legal terminology – state election law when it comes to campaign donation limits.”
While Vance’s prosecutors “briefly pondered the use of a violation of state election law,” the Times reported in 2022, they rejected that idea: “Because the presidential race during which the hush money payment occurred was a federal election, they concluded that it was outside the bounds of state law.” Even without this complication, the “illegal means” alleged here once again hinge on the dubious claim 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 furnishes 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 the filing of fraudulent returns. According to the statement of facts that accompanied Trump’s indictment, he and Cohen “took steps that misrepresented, for tax purposes, the true nature of payments made in support of the scheme.” How come?
Trump reportedly paid Cohen a total of $420,000, which included a $130,000 hush money payment and “a $50,000 payment for another expense.” Allen Weisselberg, chief financial officer of the Trump Organization, “then doubled that amount to $360,000 [Cohen] you may qualify the payment as income on your tax return, rather than as a refund, and [Cohen] they would be left with $180,000 after paying about 50% in income taxes.”
If Cohen incorrectly described a refund as income on state or city tax forms, it would be a special type of fraud, since the effect would be to increase your tax debt. This “another crime” theory requires jurors to accept the claim that tax fraud can result in the government paying Moreover than what is actually due.
New York Penal Law Sections 175.05 and 175.10
These are the same provisions that Trump allegedly violated by mischaracterizing his payments to Cohen. This theory supposedly requires additional violations of the law against the falsification of business records that the 34 counts listed in the indictment facilitated or helped to conceal. It’s unclear what those might be, but we may find out at trial, assuming Bragg actually relies on these provisions for “another crime.”
Slate legal writer Mark Joseph Stern, who was initially “highly skeptical” of Bragg’s case against Trump, says he “now wholeheartedly agrees.” But Stern’s reasoning appears to have less to do with the legal merits of the case than with the sense that this may be the last opportunity to prevent 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 insurrection, is more serious than paying Stormy Daniels. Much more serious; no debate there. It would be ideal if Trump were first tried for these alleged crimes, because they marked a historic and devastating attack on democracy, culminating in a shocking act of 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 continued efforts to drag out the clock – too often seconded by SCOTUS – it is now almost inconceivable that he will have to face such a trial before it is time to vote again. What remains, therefore, is this case.”
Stern argues that Bragg’s case, like the federal election interference case, is fundamentally about “elections: specifically, who gets to follow the rules and who gets to break them.” In paying off Daniels, he says, Trump acted on his “fundamental belief” that “you don’t have to follow the rules that govern everyone else.” But whether Trump actually broke those rules is a serious question, the statute of limitations has expired, and Bragg has no authority to enforce federal campaign finance rules in any case.
After taking a long, hard look at the potential state charges against Trump arising from the payment to Daniels, Vance concluded that they were too uncertain to pursue. Now Bragg is desperate for a legal pretext to punish what he believes is the essence of Trump’s crime: hiding information from voters that they might have considered relevant in choosing between him and Hillary Clinton. But this is not a crime, and treating it as a 34 misdemeanor stretches the limits of credulity as well as the law.