Depending on what you’ve read, seen, or heard, Manhattan District Attorney Alvin Bragg’s case against former President Donald Trump is either utterly frivolous or airtight. The truth is, of course, somewhere in between. Bragg, the first prosecutor ever to bring criminal charges against a former president, has a path to winning convictions against Trump, but it is a path strewn with legal hurdles.
Bragg has a path to winning convictions against Trump, but it is a path strewn with legal hurdles.
Bragg charged Trump with thirty-four counts of falsifying business records. The complaint centers on 11 payments Trump made to his former attorney and fixer, Michael Cohen. Trump allegedly repaid Cohen for Cohen’s hush money payments to adult film star, Stormy Daniels. Cohen, through a shell corporation, paid Daniels right before the 2016 election to stay quiet about her allegations that she had had an affair with Trump. Trump reportedly listed these payments as legal expenses, although they were not.
By incorrectly listing repayments to Cohen as legal expenses, Trump, according to Bragg, is guilty of falsifying business records. Under New York law, that crime can be charged as a felony if the prosecution can show the intent was to commit or conceal another crime.
Bragg charged Trump with felonies, not misdemeanors, by alleging that Trump falsified the business records in order to commit or conceal crimes related to election fraud and tax fraud.
Below I’ll explain why Bragg has answers for the big legal questions raised by this case.
Is the case too old? No. The hush money payments at the center of this case were made more than five years ago, and the statute of limitations in New York would typically be five years for this alleged crime. But there is an exception to the statute of limitations where a defendant has been “continuously” out of state. Because Trump lived at the White House and left there for his Mar-A-Lago home in Florida, he would likely fit within this exception.
Can Bragg rely on New York election law to support his felony charge? Maybe. But it doesn’t appear his case hinges on that. In the statement of facts for the case, Bragg’s office alleges that Trump violated “election laws.” In his press conference, Bragg specifically alleged, “[t]he scheme violated New York election law, which makes it a crime to conspire to promote a candidacy by unlawful means.” Bragg’s obstacle here is to convince the judge that he can rely on a state election law in a case dealing with a candidate for federal office.
Can Bragg rely on federal campaign finance law? Probably. Again, under New York law, prosecutors can charge falsification of business records as a felony if they can show that the defendant had the intent to commit or conceal another crime. The first thing that Bragg has to do is convince that judge that that other crime can be a federal crime.
Bragg, as a state prosecutor, only has the power to prosecute state charges. And it is not entirely clear that New York’s law allows prosecutors to rely on a defendant’s intent to commit or conceal a federal crime, in order to bring the falsification of business records charge up from a misdemeanor to a felony. The best reading of the plain language of the New York law is that it does allow prosecutors to do this, but there has yet to be a definitive ruling on this point.
If Bragg can convince the judge that he can rely on an alleged violation of federal law to move this case from a misdemeanor to a felony, the next question is whether federal campaign finance laws apply to this case. Here the answer is an easier “yes.”
As the statement of facts in this case alleges, Trump told Cohen to hold off on paying Daniels for as long as possible and said that once the election was over, there would be no need to pay her for her silence.
Fundamentally Bragg’s case is about allegations that Trump and others entered into an agreement to buy the silence of people who wanted to share negative stories about Trump. Trump and others engaged in this scheme, Bragg alleges, not to protect Trump personally, but to protect his candidacy. Put another way, these payments were made to help his chances in the 2016 presidential election, not to benefit him personally or even in his business endeavors. As the statement of facts in this case alleges, Trump told Cohen to hold off on paying Daniels for as long as possible and said that once the election was over, there would be no need to pay her for her silence. These payments were for political, not personal, purposes. This is why federal election laws would apply to this case.
This is a good time to remember that Cohen pleaded guilty and went to federal prison, in part, because he admitted that his payment to Daniels amounted to an illegal campaign contribution. Cohen admitted that the payment was made to promote Trump’s electoral chances. In this way it should be viewed as an undisclosed contribution to Trump’s campaign that was well over the $2,700 contribution limit in place in 2016. While some may point to the failed prosecution of then Sen. John Edwards, D-N.C. for federal campaign finance violations and claim that Bragg has a weak case here, there are important factual differences between the two situations. The Edwards case involved payments by wealthy donors to “facilitate” and hide Edwards’ affair. There was plenty of evidence that he did so primarily to hide the story from his dying wife. The dates on the payments in that case didn’t match up as clearly to the electoral calendar as they do in Trump’s case. The jury found Edwards not guilty on one charge, and deadlocked on the remaining five charges. Can Bragg rely on tax law? Yes. And this may provide the cleanest route for the prosecutor. Tax law allows Bragg to avoid entering, or at least solely relying on, the legal thicket of state and federal election laws. While some may point to the failed prosecution of then Sen. John Edwards, D-N.C., there are important factual differences between the two situations. Trump’s payments to Cohen were, apparently, mischaracterized as legal expenses and, hence, as income to Cohen. In reality, the payments were just reimbursements for Cohen’s hush money payments. As prosecutors have referenced, this could amount to a violation of New York tax law. Isn’t this just about bookkeeping errors? No. This case is about a scheme to prevent the American public from hearing negative stories about a candidate for the highest office in the land. This is a story about using unlawful means to pull the wool over the eyes of the American public. This is not about mischaracterizing certain payments on a private business record. In sum, Bragg will have to connect a number of dots in order to secure a conviction against the former President of the United States. But he has the tools to do so. It is way too early to say whether or not Trump will be convicted on these charges. It is just the right time, however, to conclude that a conviction appears legally and factually possible.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist. 
