Alvin Bragg Says Trump Tried To Conceal ‘Another Crime.’ What Crime?
As jury selection begins this week in the New York criminal case against Donald Trump, we should revisit the question of exactly how Manhattan District Attorney Alvin Bragg plans to transform the former president’s alleged falsification of business records into 34 felonies. Bragg, who is pursuing the first-ever prosecution of a former president, has cited several possible legal theories, and all of them 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 covering up his purported affair with porn star Stormy Daniels. As Bragg sees it, Trump “corrupt[ed] a presidential election” by hiding negative information from voters. Because there is nothing inherently illegal about that, Bragg is relying on a dubious chain of reasoning to charge Trump with felonies under New York law.
Shortly before the 2016 election, Michael Cohen, Trump’s lawyer, paid Daniels $130,000 to keep her from talking about the alleged affair. In a 2018 plea agreement, Cohen, who will be the main prosecution 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 purported contribution. Nor was he prosecuted for later reimbursing Cohen in a series of payments.
There are good reasons for that. The question of whether this arrangement 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 promote his election or by a desire to avoid embarrassment and spare his wife’s feelings.
Although the former hypothesis is plausible, proving it beyond a reasonable doubt would have been hard, as illustrated by the unsuccessful 2012 prosecution of Democratic presidential candidate John Edwards. The Edwards case, which was based on similar but seemingly stronger facts, foundered on the difficulty of distinguishing between campaign and personal expenditures.
In any event, the statute of limitations for federal election law violations is five years, and Bragg has no authority to prosecute people for such crimes. Bragg instead charged Trump with covering up his reimbursement of Cohen by disguising it as payment for legal services. Trump did that, according to the indictment, through phony invoices, checks, and ledger entries, each of which violated Section 175.05 of the New York Penal Law, which makes falsification of business records “with intent to defraud” a misdemeanor punishable by a maximum fine of $1,000 and/or up to a year in jail.
Under Section 175.10 of the penal code, that offense 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.” The indictment, which was unveiled 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 Act
It is not clear that Trump violated that law, and the Justice Department evidently concluded there was not enough evidence to prosecute him for doing so. Given the fuzziness of the distinction between personal and campaign expenditures, it is plausible that Trump did not think the hush payment was illegal, in which case he did not “knowingly and willfully” violate the statute, as required for a conviction. And if so, it is hard to see how his int
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