What we don’t know — at least with the precision necessary to evaluate the case’s strengths and weaknesses — is the District Attorney’s specific legal theory of how Trump was defrauding anyone and how he was promoting or concealing a crime by doing so. That may sound like law pedantry, but it’s crucial to understanding the case.
Commentators disagree, but some argue that Bragg will have to prove that Trump conned someone out of money or property, or at least impeded the government’s functions, to prove he falsified his books with intent to defraud under the statute. We don’t know Bragg’s theory of how he’d meet that burden, because neither the indictment nor the Statement of Facts spells it out.
Moreover, different crimes have different intent and knowledge requirements. Is the District Attorney arguing — as Bragg and his Statement of Facts imply — that Trump cooked the books to hide that he was committing federal campaign finance violations, because the payoff to Stormy Daniels was a prohibited contribution to his own campaign? That’s a heavy lift: Campaign finance violations generally require the government to prove that the defendant acted “knowingly and willfully,” meaning that the defendant knew their action was illegal. (As a rule, crimes mostly committed by rich people have daunting intent requirements, crimes mostly committed by poor people are easy to prove.) But we don’t know their theory because they don’t spell it out. [Continue reading…]