Alvin Bragg Hasn’t Proved His Case in the Trump Trial The evidence shows why the charges should never have been brought.
New York prosecutors rested their hush-money case against Donald Trump this week, but after 20 days in court and a trial transcript of 4,000 pages, the missing piece is still missing. The question is whether Manhattan District Attorney Alvin Bragg presented the evidence necessary for a conviction, and if we were in the jury room, we’d say no.
Ignore the drama of Stormy Daniels on the witness stand, recalling her alleged sexual encounter with Mr. Trump in 2006. Focus on the law. To get a guilty verdict on the 34 bookkeeping felonies, Mr. Bragg must prove both that Mr. Trump falsified business records, and also that he did it with intent to commit or conceal a second crime. Yet there was essentially no direct evidence that Mr. Trump conceived of this all as a scheme to break the law.
The only real witness to Mr. Trump’s state of mind was his former fixer, Michael Cohen. When Ms. Daniels threatened to go public in the days before the 2016 election, Mr. Cohen testified that Mr. Trump authorized him to buy her silence for $130,000. “He expressed to me: Just do it,” Mr. Cohen said. “Go meet up with Allen Weisselberg and figure this whole thing out.” Mr. Weisselberg was Mr. Trump’s longtime CFO.
Mr. Bragg’s main argument for the second crime is that because the Stormy payoff was primarily meant to influence the 2016 election, it was in effect an illegal donation to Mr. Trump’s campaign. This interpretation of the law is dubious, though put a pin in that for a moment. Did it cross Mr. Trump’s mind that the transaction might be criminal? A nondisclosure agreement on its own is perfectly legal.
David Pecker, the National Enquirer impresario, was worried. In 2016 he laid out $150,000, plus work in his magazines, to quiet another alleged Trump fling, a former Playboy model named Karen McDougal. Mr. Pecker had a deal with Mr. Cohen to get repaid, but he declined after talking to his general counsel. “I am not going forward with this agreement,” he testified telling Mr. Cohen. “Rip it up.”
Then Mr. Cohen, at least, was on notice of legal exposure? Well, no. Here’s his memory of what Mr. Pecker said. “The Karen McDougal front cover on Men’s Health magazine had sold more copies than they had not only anticipated, I think that they had ever—the way David expressed it to me, that they had ever sold,” Mr. Cohen recalled. “He felt that it was, even for the $150,000, it was an excellent business deal.”
Trying to fill gaps, the DA’s team argued the jury should see an interview Mr. Trump gave Larry King in 1999. “Nobody knows more about campaign finance than I do,” he said, with typical puffery. The prosecutor: “We think that defendant’s admission that he has extensive knowledge of campaign finance laws is obviously directly relevant.”
Seriously? A transparent boast on TV in 1999 is proof Mr. Trump intended to facilitate an illegal campaign donation in 2016? Judge Juan Merchan sided with the defense on this, excluding it as “attenuated” and “speculation.”
When Mr. Trump repaid Mr. Cohen in 2017, the money was structured as income and then “grossed up” to cover taxes. That was Mr. Weisselberg’s idea, Mr. Cohen said, and he wasn’t informed why: “To be honest, I didn’t really even think about it. I just wanted to get my money back.” Mr. Weisselberg, who’s currently in jail, didn’t testify. Prosecutors said they were reluctant to call him, since he might take the Fifth Amendment, and his big-money severance package has a non-disparagement clause.
Then there’s the fateful legal question, which is whether paying hush money even counts as a campaign expense. Brad Smith, formerly of the Federal Election Commission, persuasively argues no. A political candidate might choose, for example, to settle a meritless lawsuit against his business rather than face questions on it from voters. But that motivation wouldn’t convert the settlement into campaign activity.
Mr. Smith was ready to take the stand this week, but the defense decided not to call him, given limits that Judge Merchan placed on his testimony. “It’s elementary that the judge instructs the jury on the law, so I understand his reluctance,” Mr. Smith wrote. Yet if Mr. Trump is convicted, the odds seem reasonable that an appellate court might say paying off Stormy wasn’t illegal in the first place.
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Closing arguments are expected next week, and the wording of the jury instructions could matter a great deal. Judge Merchan said Tuesday he was reserving decision on a request by the defense to tell jurors Mr. Trump must have acted “willfully” to be found guilty. Either way, the reality is that hush money isn’t illegal, disguising the bookkeeping is a misdemeanor that’s past its statute of limitations, and Mr. Bragg jury-rigged the felonies using an alleged second crime that doesn’t look like a crime.
Conviction or no by a Manhattan jury, this is a case that should never have been brought.
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