The murky legal issues behind the Trump hush money charges
NEW YORK (AP) – The cover up is worse than the crime, the saying goes. And in the money hush case against Donald Trump, prosecutors say the cover-up made the crime worse.
In an indictment and other documents unsealed Tuesday, prosecutors say Trump falsified internal business records at his company about a payment to a porn star to keep a potentially damaging story from coming to light while he was campaigning for the presidency in 2016. Manhattan District Attorney Alvin Bragg said that it was Trump’s attempt to commit crimes related to that election that enabled prosecutors to charge the 34 counts as felonies.
The indictment, however, raises serious questions about state and federal law that could provide openings for the defense to try to throw out the charges before the case even goes to trial.
“The bottom line is that it’s murky,” said Richard Hasen, an election law expert and professor at the University of California, Los Angeles’ law school. “And the district attorney has not offered a detailed legal analysis of how they can do this, how they can get around these potential obstacles. And it could tie up the case for a long time.”
Trump, a candidate for the Republican presidential nomination in 2024, says he did nothing wrong and that the case is political persecution. In remarks from his Florida home a few hours after his court appearance, he said, “This fake case was brought only to interfere with the upcoming 2024 election and should be dropped immediately.”
In the end, the case is not about the details of the money being made with the porn actress Stormy Daniels. Nor is it about Trump’s acrimonious relationship with his lawyer-turned-government witness, Michael Cohen.
A presidential candidate is allegedly using his money and influence to bury stories that could harm voters, especially since Trump’s reputation was suffering at the time due to comments he made about women .
Falsifying business records may be a misdemeanor, a lower-level crime that would not normally result in jail time. It becomes a felony – which carries up to four years behind bars – if there was intent to commit or conceal a second crime. Bragg said his office routinely brings false felony business record cases.
In the Trump case, Bragg said the phony business records were designed to cover up alleged violations of state and federal election law. The $130,000 payment to Daniels exceeded the federal limit on campaign contributions, Bragg said. He also cited a New York election law that makes it a crime to promote a candidate by illegal means.
“That’s what this defendant did when he falsified business records to hide illegal efforts to promote his candidacy, and that’s why we’re here,” one of the case prosecutors, Chris Conroy, told the judge on Tuesday.
Prosecutors filed a “statement of facts” that told their story of a scheme to protect Trump’s presidential prospects by buying and suppressing unflattering information about him. However, some legal observers were surprised that the indictment itself was not more specific about how each of the charges was elevated to a felony.
“There are a lot of dots here that take a little imagination to connect,” said Richard Klein, a professor of criminal law at the Touro Law Center. Bragg said the indictment does not specify the potential underlying crimes because it is not required by law. But given the likelihood that Trump’s lawyers will challenge it, “you’d think they’d want to be on a lot more solid ground than some of this stuff,” said Klein, a former New York City public defender.
Hasen said it is unclear whether candidates for federal office can be prosecuted in cases involving state election laws. The defense may also argue that the case cannot be brought in state court if it involves federal election law.
Prosecutors, however, cited another allegation related to the tax law: that Trump’s scheme included a plan to mischaracterize the payments to Cohen as income to New York tax authorities.
“They talked about tax crimes, and I think that might have been more compelling to the jury,” Renato Mariotti, a former federal prosecutor, told ABC News. “It’s a safer bet than campaign finance crimes.”
Bragg “is going to bring in witnesses, he’s going to show a lot of documentary evidence to try to show that all of these payments were for the benefit of the presidential campaign,” said Jerry H. Goldfeder, a veteran election lawyer in New York and Mr. Bragg. director of Fordham Law School’s Voting Rights and Democracy Project.
“It remains to be seen whether he can prove it beyond a reasonable doubt,” Goldfeder said. But, he said, “Don’t underestimate District Attorney Alvin Bragg and don’t underestimate Mr. Trump.”
Trump’s lawyers have painted him as a victim of extortion who had to make the payments to prevent false and embarrassing information from coming out. They say the payments had nothing to do with the campaign.
It is similar to an argument made by former North Carolina Sen. John Edwards, the Democrat accused of funneling nearly $1 million in under-the-table campaign contributions in an attempt to hide his pregnant lover during his 2008 run for president. Edwards insisted the payments were a personal matter, intended to keep the matter a secret from his wife. He was acquitted by a jury on one charge and dismissed on other grounds. It was not withdrawn.
The New York case is just one of many legal concerns for Trump.
Georgia prosecutors are investigating efforts to derail Trump and his allies from losing the state’s 2020 election. Federal prosecutors are investigating the criminal mishandling of classified documents at Trump’s Florida home, as well as efforts by Trump and his allies to overturn the results of the presidential election.
“It’s not going to enable him to claim it’s a witch hunt,” Hasen told Trump. “And it might convince some people that all the potential criminal cases against Trump are full of false claims, but I think the other potential cases related to classified documents, the 2020 election, in much stronger in law and in truth.”
Trump’s lawyers will certainly attack the credibility of Cohen, a convicted liar who is far from an ideal prosecution witness. The ousted attorney has said Trump directed him to arrange a hush money payment to damage Trump’s bid for the White House.
Cohen admitted in court to lying to him, and no doubt Trump’s lawyers will try to use that to their advantage. Cohen pleaded guilty in 2018 to lying to Congress to cover up that he was negotiating the Moscow Trump Tower project on Trump’s behalf during his presidential campaign. Cohen pleaded guilty in a parallel federal case to campaign finance violations and other charges related to the hush money payments.
After federal prosecutors declined to file charges against Trump in the hush money case, a former law enforcement official told The Associated Press that prosecutors raised concerns about Cohen’s reliability as a witness. Federal prosecutors believed it was far from clear that Trump could be convicted of a campaign finance crime, even if a jury believed Cohen’s allegations that he ordered the hush money payments.
Trump has already indicated that he may try to move the case out of Manhattan, writing on social media on Tuesday that it should be held in Staten Island. He called that borough – which is more conservative than the rest of New York City – “A VERY FAIR AND SAFE PLACE.”
Trump may also argue that the statute of limitations — five years for most felonies in New York — has expired because the cash payments and Cohen repayments occurred before that.
Some extensions have been made during the pandemic, and state law can stop the clock when a potential defendant is continuously out of state. Trump has rarely visited New York over the four years of his presidency and now lives mostly in Florida and New Jersey. His lawyers may question whether the time limit applies to elected officials serving in Washington.
“This case has some very good issues for the defense to litigate,” said Duncan Levin, a New York City defense lawyer and former Manhattan prosecutor. “It’s not an open and shut case by any means.”