Alvin Bragg Is Trying To Punish Trump for Something That Is Not a Crime

Manhattan District Attorney Alvin Bragg
Manhattan District Attorney Alvin Bragg | Mayer/Mega/JMNEW2/Newscom
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When Donald Trump's lawyers urged a federal appeals court to approve "absolute" presidential immunity last month, they argued that it was necessary to prevent frivolous, politically motivated criminal charges against former presidents. Last week, the U.S. Court of Appeals for the D.C. Circuit unanimously rejected that argument, along with the other reasons Trump offered for shielding him from prosecution for trying to reverse the outcome of the 2020 presidential election. The three-judge panel said the danger Trump perceived "appears slight" given prosecutors' "ethical obligations" and "additional safeguards," such as "the right to be charged by a grand jury upon a finding of probable cause."

Manhattan District Attorney Alvin Bragg's case against Trump, which is now scheduled for trial on March 25, would not have been affected by the immunity that the D.C. Circuit declined to recognize, because it is not based on Trump's "official acts" as president. But the case shows that prosecutorial ethics and grand juries are no guarantee against partisan manipulation of the criminal justice system.

The legally and morally dubious charges against Trump, which stem from hush money that he paid porn star Stormy Daniels when he was running for president in 2016 to keep her from talking about her alleged affair with him, reinforce his complaint that Democrats are attempting "election interference" in the guise of seeking justice. And because it looks like this case will be tried before any of the other, more substantial criminal cases against Trump, it is apt to color the public's perception of those cases as well. That likelihood suggests the conspiracy that Trump portrays, which supposedly involves Special Counsel Jack Smith and Fulton County, Georgia, District Attorney Fani Willis as well as Bragg, is much clumsier than he suggests.

Smith and Willis say Trump unlawfully interfered with the 2020 presidential election by trying to enlist state and federal officials in his efforts to stop Joe Biden from taking office. Trump says Bragg is unlawfully interfering with this year's presidential election by pursuing bogus criminal charges. Bragg claims Trump unlawfully interfered with the 2016 presidential election by hiding information that might have turned voters against him. Of these three claims, Bragg's is the least credible.

There was nothing inherently illegal about paying off Daniels. Although the $130,000 payment could be construed as a violation of federal campaign finance law, that interpretation hinges on viewing the hush money as a campaign expense, aimed at securing Trump's victory, rather than a personal expenditure, aimed at avoiding embarrassment and sparing Melania Trump's feelings.

Federal prosecutors did charge Trump fixer Michael Cohen with making an illegal campaign contribution by fronting the money to pay Daniels, and he pleaded guilty to that charge in 2018. But they never charged Trump with breaking the law by arranging the payment or reimbursing Cohen, and it is not hard to see why. The Justice Department's unsuccessful 2012 prosecution of Democratic presidential candidate John Edwards, which was based on similar but seemingly stronger facts, foundered on the difficulty of distinguishing between campaign and personal expenditures.

The idea of converting the Daniels hush money into a state crime was so unpromising that Bragg's predecessor, Cyrus R. Vance Jr., rejected it after lengthy consideration. When Bragg revived the idea after taking office in 2022, leading to a March 2023 indictment charging Trump with 34 felonies, many people, including the former president's critics, thought the case reeked of political desperation.

Bragg does not claim that paying off Daniels was itself a crime, because it obviously was not. The indictment instead alleges that Trump violated a New York law that makes it a misdemeanor to falsify business records "with intent to defraud." Trump allegedly did that by misrepresenting his reimbursement of Cohen as payment for legal services under a nonexistent retainer agreement. The 34 counts in the indictment are based on invoices, checks, check stubs, and ledger entries, each of which allegedly helped Trump conceal the hush payment.

This stacking of charges based on the same course of conduct already looks like a vendetta. But why are they felonies? It is not exactly clear.

Falsifying business records becomes a felony, punishable by up to four years in prison, when the defendant's "intent to defraud" includes "an intent to commit another crime or to aid or conceal the commission thereof." What was the other crime? Bragg claims Trump "violated election laws" when he instructed Cohen to pay Daniels. Which election laws? Bragg so far has refused to say. "The indictment doesn't specify them because the law does not so require," he told reporters last year.

One possibility is that Trump violated federal election laws. But federal prosecutors did not pursue any charges against Trump based on that claim, and it is not clear that "another crime" can include federal offenses, as Vance's staff recognized. In 2022, The New York Times reported that prosecutors working for Vance "concluded that the most promising option for an underlying crime was the federal campaign finance violation to which Mr. Cohen had pleaded guilty." But "the prosecutors ultimately concluded that approach was too risky—a judge might find that falsifying business records could only be a felony if it aided or concealed a New York state crime, not a federal one."

The concern noted by the Times is not the only reason this theory is iffy. If Trump did not understand federal election law, which is hazy at best on this point, and/or did not anticipate how federal prosecutors would interpret it, he did not "knowingly and willfully" violate it, which is an element of the crime. And if he did not believe he (or Cohen) had committed a crime, how could he have falsified business records with the intent of concealing it?

Another theory is that Trump violated New York election laws. In an April 2023 press release, Bragg said the "criminal activity" that Trump sought to "conceal" included "attempts to violate state and federal election laws" (emphasis added). In comments to reporters, Bragg mentioned one possibly relevant New York statute: Section 17-152 of the state's election law.

That provision says "any two or more persons who conspire to promote or
prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor." Assuming that the state law applies to federal elections and that "unlawful means" includes a violation of federal limits on campaign contributions, the money that Cohen says he gave Daniels at Trump's behest might qualify as a violation of Section 17-152. But while Vance's prosecutors "briefly mulled using a state election law violation," the Times reported in 2022, they rejected that idea: "Since the presidential race during which the hush-money payment occurred was a federal election, they concluded it was outside the bounds of state law."

The essence of Trump's crimes, Bragg says, is that he "hid damaging information from the voting public during the 2016 presidential election." As the Times notes, Bragg "has presented the loftiest possible conception of the case, casting it as a clear-cut instance of election interference, in which a candidate defrauded the American people to win the White House in 2016."

In a radio interview last December, Bragg complained that the press had described the case as an attempt to criminalize a hush payment. "We would say it's about conspiring to corrupt a presidential election and then lying in New York business records to cover it up," he said. "That's the heart of the case."

Without that alleged conspiracy, however, the falsification of business records would be a misdemeanor. The corruption that Bragg perceives was the hush payment, regardless of how it was handled.

The problem, as Bragg sees it, is that Trump "defrauded the American people" by persuading Daniels to shut up. That characterization does not hinge on whether Trump complied with "state and federal election laws," or even on whether any money changed hands. If Daniels had simply agreed not to talk about the alleged affair after Trump asked her nicely, the result would have been the same: Americans would have been deprived of "damaging information" that might have caused them to think twice about voting for Trump. Bragg's "loftiest possible conception of the case," in other words, is that it seeks to punish Trump for something that is not a crime.

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