The Trump Trial Spectacle Begins Manhattan DA Alvin Bragg’s hush-money case is a legal stretch that should not have been brought.
Donald Trump on Monday will become the first former U.S. President, and the first leading presidential candidate, to be put on criminal trial. Manhattan District Attorney Alvin Bragg will try to prove to a jury that Mr. Trump is guilty of 34 felonies related to his 2016 hush money to adult film star Stormy Daniels.
Eight years later, and seven months before the 2024 election, it’s a trial that shouldn’t happen in a case Mr. Bragg shouldn’t have brought. The Stormy affair was sordid business, but the DA’s argument is a legal stretch, in ways that might bother a skeptical juror or an appeals court.
The facts are these: Ms. Daniels has said that in 2006 she and Mr. Trump had one, er, intimate encounter. A decade later, as the 2016 election neared, Mr. Trump’s fixer Michael Cohen paid Ms. Daniels $130,000 to keep quiet. A nondisclosure agreement isn’t illegal. Mr. Bragg’s complaint is about the paperwork. Mr. Cohen was reimbursed through 2017 via a monthly retainer “disguised as a payment for legal services,” the DA said. He padded his indictment by separately charging each invoice, check and ledger entry to get 34 counts.
Falsifying business records in New York can be a misdemeanor, but the statute of limitations on that has expired. Mr. Bragg therefore must charge felonies, which under New York law means showing that Mr. Trump cooked the books with “intent to commit another crime or to aid or conceal the commission thereof.”
Even that requires special dispensation. The 2017 payments are outside the five-year felony window, but state judge Juan Merchan ruled that Mr. Bragg enjoys an extra year of leeway after emergency Covid-19 executive orders stopped the clock on legal cases.
The crucial question is Mr. Trump’s alleged second crime. To bring bookkeeping felonies, Mr. Bragg needs an underlying offense that Mr. Trump intended to commit or conceal, even if it isn’t prosecuted.
Mr. Bragg didn’t charge the second crime and didn’t clearly identify it in last year’s indictment. His court filings since have advanced four theories of what that crime might be, three of which the judge blessed.
One theory is that the Stormy payoff was effectively a donation to Mr. Trump’s campaign, in excess of federal limits. Two, he says the payment broke a New York law against promoting a candidate “by unlawful means.” Yet this loops back to No 1., since the “unlawful means,” Mr. Bragg said, include busting the federal donation cap.
It’s a dubious argument. Is paying a mistress a bona fide campaign expense? Brad Smith, a former member of the Federal Election Commission, has argued persuasively that the answer is no.
“The underlying obligation wasn’t created by the act of campaigning,” Mr. Smith wrote in these pages last year. Had Mr. Trump wired campaign funds to Stormy, prosecutors might now be accusing him of illegally converting donor money to personal use. On appeal this could go all the way to the Supreme Court.
The DA’s third theory: Since the reimbursement was treated as payment for services, the amount was “grossed up” to ensure Mr. Cohen would “be left whole after paying approximately 50% in income taxes,” as Mr. Bragg told the court. Filing a false return, he added, is tax fraud. But it’s an odd kind of fraud if the result was Mr. Cohen overpaying taxes on illusory income. Perhaps such a distinction is legally irrelevant, as the judge suggested, though it matters to whether the case is worth bringing.
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Such problems help explain why this case wasn’t pursued by the feds or Mr. Bragg’s predecessor. Yet the newly elected Democratic DA was under political pressure to do something. His top Trump prosecutors quit in a huff, and the media scorched him for failing to charge Mr. Trump in his first months on the job.
Now the country is on the brink of an extraordinary moment, as Mr. Bragg uses a weak and untested legal premise to put the other party’s presidential nominee on trial during the 2024 campaign.
The New York jury pool is unlikely to favor Mr. Trump. Still, Mr. Bragg must prove his case, amid what is sure to be a media spectacle, with Mr. Trump fulminating at every opportunity for viewers and the voters. Will Mr. Cohen testify credibly? He pleaded guilty to making an excessive campaign contribution. Then again, he recently said under oath that he lied to the federal judge during his plea. What a star witness.
A single doubting juror could hold out for a mistrial, vindicating Mr. Trump as he turns toward November. If he’s found guilty, is the judge ready to order him behind bars? What if Mr. Trump succeeds on appeal after the election, win or lose? Mr. Bragg is making history all right, in the worst way.
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