Alvin Bragg’s Misbegotten ‘Election Interference’ Case Against Trump Ends With a Whimper
Unless the U.S. Supreme Court intervenes, President-elect Donald Trump will be sentenced on Friday for falsifying business records to cover up his 2016 hush payment to porn star Stormy Daniels. But although a New York jury convicted Trump of 34 felonies in that case last May, Judge Juan Merchan has indicated that he plans to impose “a sentence of unconditional discharge,” meaning Trump will face neither jail nor probation. Which makes you wonder: What was the point of prosecuting this case?
The point, it seems clear, was to undermine Trump’s prospects in the 2024 election by tarring him as a convicted felon—a status that Democrats emphasized in vainly trying to turn voters against him. But deploying that label required a dubious legal theory that aimed to punish Trump for conduct that was not inherently criminal.
As Manhattan District Attorney Alvin Bragg told it, he was holding Trump accountable for undermining democracy by persuading Daniels to keep quiet about her 2006 sexual encounter with him at a hotel in Lake Tahoe. “The heart of the case,” Bragg explained, is “about conspiring to corrupt a presidential election and then lying in New York business records to cover it up.” Bragg said the nondisclosure agreement (NDA) that Trump lawyer Michael Cohen arranged with Daniels amounted to “election interference” because it deprived voters of information they might have deemed relevant in choosing between Trump and Hillary Clinton in 2016. But trying to avoid bad press is not a crime, and Trump was not charged with “election interference.”
The records at the center of the case consisted of 11 invoices, 11 checks, and 12 ledger entries that prosecutors said falsely portrayed Trump’s reimbursement of Cohen’s payment to Daniels as compensation for legal services. To emphasize the gravity of Trump’s attempt to conceal embarrassing information, Bragg relied on several interacting statutes to convert falsification of business records, ordinarily a misdemeanor, into a felony. The difference hinged on whether Trump had falsified records with “an intent to commit another crime or to aid or conceal the commission thereof.”
Bragg was hazy on exactly what the other crime was, although he suggested that the Daniels NDA “violate[d] state and federal election laws.” One theory was that the $130,000 hush payment qualified as an excessive campaign contribution under federal law—a characterization that Cohen accepted in a 2018 plea agreement that also resolved several other, unrelated charges against him. But given the fuzziness of the distinction between personal and campaign expenditures, that interpretation was open to debate. This theory of “another crime” also relied on an obscure New York law that makes it a misdemeanor for “two or more persons” to “conspire to promote or prevent the election of any person to a public office by unlawful means.”
There were other possible theories, and the prosecution never definitively settled on one in particular. As if to make up for that lack of clarity, Bragg made his case seem more impressive by counting each of the 34 records as a distinct felony.
Bragg was undeterred by the fact that his predecessor, Cyrus R. Vance Jr., had decided against charging Trump with state crimes based on the Daniels NDA after concluding that none of the options was legally viable. Bragg was determined to get Trump one way or another. The resulting case was so vague, complicated, and confusing that it remains unclear exactly w
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