The dubious legal theory at the heart of the Trump indictment, explained

By | April 4, 2023

Ian Millhiser writes:

There is something painfully anticlimactic about Manhattan District Attorney Alvin Bragg’s indictment of former President Trump. It concerns not Trump’s efforts to overthrow the duly elected government of the United States, but his alleged effort to cover up a possible extramarital affair with a porn star.

And there’s a very real risk that this indictment will end in an even bigger anticlimax. It is unclear that the felony statute that Trump is accused of violating actually applies to him.

The indictment charges Trump with 34 separate counts of falsifying business records in the first degree, a felony. A separate document laying out the factual basis for Bragg’s allegations against Trump points to a complicated web of arrangements between Trump, his former lawyer Michael Cohen (who is identified as “Lawyer A”), and David Pecker, the CEO of American Media, the company that publishes the National Enquirer.

Bragg alleges that these three men worked together to identify two women who allegedly had sex with Trump, and to pay them to remain silent. The women are identified as “Woman 1” and “Woman 2” by Bragg, but the first woman appears to be former Playboy model Karen McDougal, and the second appears to be porn actress Stormy Daniels.

Cohen, who pleaded guilty to a federal campaign finance crime arising out of this scheme in 2018, paid $130,000 to Daniels shortly before the 2016 election, in order to secure her silence. According to Bragg, Trump then paid Cohen a total of $420,000 over the course of 2017, much of which was intended to reimburse Cohen for the payment to Daniels.

The actual felony counts arise out of allegedly false entries that Trump made in various business records in order to make the payment to Daniels appear to be ordinary legal expenses paid to Cohen.

But Bragg built his case on an exceedingly uncertain legal theory. Even if Trump did the things he’s accused of, it’s not clear Bragg can legally charge Trump for them, at least under the felony version of New York’s false records law.

As Mark Pomerantz, a former prosecutor in the Manhattan DA’s office who played a significant role in the Trump investigation prior to his resignation in 2022, wrote in a recent book, a key legal question that will determine whether Trump can be charged under the felony version of New York’s false records law has never been resolved by any appellate court in the state of New York.

The felony statute requires Bragg to prove that Trump falsified records to cover up a crime. Bragg has evidence that Trump acted to cover up a federal crime, but it is not clear that Bragg is allowed to point to a federal crime in order to charge Trump under the New York state law.

The answer to this “gnarly legal question,” as Pomerantz put it, is simply unknown. So there is a serious risk that a New York judge will toss out the charges against Trump on technical legal grounds unrelated to the former president’s actual conduct. [Continue reading…]