Though it doesn’t say how, the New York Post reports that it “has learned” that there will be no indictment of former President Trump this week by the grand jury that is hearing evidence presented by Manhattan district attorney Alvin Bragg.
In fact, if the Post’s information is correct – and we’re not in a position to evaluate that – the panel will hear no further Trump evidence this week, and is not expected to resume considering the case next week, either.
As we’ve explained at length (e.g., here and here), the investigation is focused on whether Trump falsified business records in accounting for the reimbursement of $130,000 his former self-described “fixer,” Michael Cohen, paid to complete a hush-money deal with porn star Stormy Daniels – whose real name is Stephanie Clifford and who claims to have had an affair with Trump about a decade before his 2016 election as president. The arrangement, known as a nondisclosure agreement (NDA), was completed (I’m trying not to say consummated) a few days before the 2016 election. Trump reimbursed Cohen through monthly payments in 2017 that were made to look like the payment of legal fees, even though they were, in fact, reimbursement of a debt.
Falsification of business records is a misdemeanor in New York, with a two-year statute of limitations – meaning (a) such offenses are virtually never prosecuted by the office of Bragg, a progressive prosecutor pursuing an anti-enforcement, anti-imprisonment agenda, and (b) this particular offense is almost certainly time-barred. To make the case even arguably viable, then, Bragg has to inflate it into a felony, which has a five-year statute of limitations. But the felony would require proof that Trump intended the falsification of records to conceal another crime he knew he had committed. Here, Bragg’s evidence that Trump committed another crime appears dubious, and any claim that Trump knew he was committing another crime and acted with the intent to do that seems untenable.
It has been widely reported that the other crime Bragg could accuse Trump of concealing is a campaign-finance violation. But, as I elaborated on over the weekend, campaign-finance laws in the context of presidential elections are federal; Bragg does not have jurisdiction to enforce them. Even if he did, it is highly unlikely that Trump’s reimbursement of Cohen with private funds could be deemed an in-kind campaign donation. Moreover, Trump’s obvious motivation for falsifying records – if, indeed, Bragg can prove that Trump knew about the bookkeeping details, which is questionable – was not to conceal another crime (which it’s not clear he committed or knew he was committing), but was to keep the hush money arrangement from his wife, among others (which is why the NDA was done in the first place).
Because grand-jury proceedings are secret and the DA’s deliberations about cases happens behind closed doors, we can’t say for sure what is happening. Bragg appeared poised to charge Trump ten days ago. Now that looks less likely. Bragg has moth-balled the case once before out of concern over its weakness; now it’s just as weak but another year has gone by, so it’s even more stale.
Even some intensely anti-Trump Democrats (such as Van Jones) have urged that Bragg stay his hand. That is precisely because they are intensely anti-Trump: Their fear is that a weak prosecution brought by Bragg would discredit more serious investigations of Trump, involving his efforts to reverse the 2020 presidential election and his illegal retention of government intelligence at his Mar-a-Lago estate.
We’ll continue watching it closely. If the Post is right, though, it may be weeks before we hear of any new developments in Bragg’s Trump investigation, assuming there are going to be any new developments, which is uncertain.