Bragg is straining to turn this into a felony by theorizing that Trump was engaged in covering up some other crime — a crime that he refuses to specify.
In Part One of this review of the Trump indictment, I looked at Alvin Bragg’s problems with the statute of limitations. In this installment, I will explain why he’s also straining to turn this into a felony by theorizing that Trump was engaged in covering up some other crime — a crime that Bragg refuses to specify.
Problem Two: The Federal Election Law Issue
The misdemeanor statute, Section 175.05, criminalizes false business records made “with intent to defraud.” We will get to the meaning of that phrase in a later installment, but to elevate it to a felony under Section 175.10, the government must prove that the defendant’s “intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.” The second crime doesn’t have to have been successfully committed, but there needs to be another crime that the defendant is trying to commit by using the false records, or trying to conceal by means of the false records.
Bragg hasn’t said what the crime is, not even at today’s press conference. Hush-money payments aren’t a crime. The Statement of Facts says that the Trump Organization overpaid Cohen when reimbursing him, so that he could falsely record the payments as income and pay taxes on them (which he would not have to do for a reimbursement) and still come out ahead. But it’s not a crime to overpay your income taxes. Using Trump Organization funds is unlikely to be a crime, because Trump owns the Trump Organization; he’s not taking anything from other shareholders.
The popular theory, supported by some of the things in the Statement of Facts, is that Bragg is arguing that the false records were aimed to conceal campaign-finance violations. He is leaning hard on the fact that Cohen already pled guilty to campaign-finance violations, but as Andy notes, there were good reasons for Cohen (who pled guilty to much more serious crimes) to just nod along to that when he pled guilty, because it didn’t enhance his sentence and actually made the prosecutors more willing to give him an easier deal. In any event, Cohen’s plea might be admissible evidence of the facts underlying it, but a guilty plea is not proof of what the law is. That’s for the courts to decide, not criminal defendants.
It is also a bizarre perversion of campaign-finance law to theorize that Cohen committed a crime by making illegal contributions to the Trump campaign that were reimbursed by Trump. Trump, after all, is allowed to make unlimited contributions to his own campaign; if his goal was just to support his campaign, he could legally make the payments directly. I suppose there may be a theory that using some Trump Organization entities as a conduit for this was illegal, but we are really stretching at this point to find a felony in a man paying, in effect, his own money to back himself as a candidate.
There are all manner of other debates over exactly what federal campaign rules might have been broken, and whether they were broken at all. The John Edwards prosecution collapsed in good part because of the vagueness and ambiguity of these rules when applied to a candidate paying off an embarrassing sex scandal, and it seems entirely plausible that Trump didn’t understand those laws or intend to break them. Indeed, it is impossible to get agreement even among campaign-finance-law experts – people who have devoted their whole careers to this area of law – to agree on what the law is in this area. And we’re indicting a former president for getting them wrong?
In fact, in discussing an abortive structure to pay off another woman, the Statement of Facts says that Trump wanted to just make the payments in cash (which would have created no business records) and Cohen advised him that he couldn’t:
Lawyer A [Cohen] told the Defendant he would open up a company for the transfer of Woman 1’s account and other information, and stated that he had spoken to the Chief Financial Officer for the Trump Organization (the “TO CFO”) about “how to set the whole thing up.” The Defendant asked, “So what do we got to pay for this? One fifty?” and suggested paying by cash. When Lawyer A disagreed, the Defendant then mentioned payment by check.
Even diehards of the progressive left are frustrated at Bragg’s game of prosecutorial three-card monty. Mark Joseph Stern of Slate:
What election law, exactly, did this plot run afoul of? The entire prosecution hinges on that question—and yet neither the indictment nor the statement of facts identifies it. Instead, Bragg briefly described them in a press conference afterward: a New York law that prohibits any conspiracy to “promote or prevent the election of any person to a public office by unlawful means” and a federal limit on campaign contributions. It’s not totally clear whether violation of a federal law can transform the business record charge from a misdemeanor to a felony, so that theory is somewhat shaky. That leaves the New York law against conspiring to promote a candidate’s election illegally. Bragg’s theory appears to be that the National Enquirer’s parent company, American Media Inc., made false statements in its own books to cover up its role in the hush money plot—which, in turn, was designed to promote Trump’s candidacy.
American Media, Inc.? The AMI connection raises a whole separate problem.
Problem Three: The AMI Connection
As Stern notes, it seems that Bragg is trying to make something out of an alleged agreement by Trump to conspire with AMI to help his campaign. It is worth taking a moment to reflect on what the Statement of Facts argues is the core “scheme” here (as a legal matter, no conspiracy is charged):
From August 2015 to December 2017, the Defendant orchestrated a scheme with others to influence the 2016 presidential election by identifying and purchasing negative information about him to suppress its publication and benefit the Defendant’s electoral prospects . . .
In August 2015, the Defendant met with Lawyer A and AMI’s Chairman and Chief Executive Officer (the “AMI CEO”) at Trump Tower in New York County. At the meeting, the AMI CEO agreed to help with the Defendant’s campaign, saying that he would act as the “eyes and ears” for the campaign by looking out for negative stories about the Defendant and alerting Lawyer A before the stories were published. The AMI CEO also agreed to publish negative stories about the Defendant’s competitors for the election.
If your brain has been numbed by repeated exposure to Trump “collusion” stories, it is worth recalling that it is not illegal for a political candidate to try to influence the election in which he is running for office. Nor is it illegal for a media entity to try to help one candidate, by suppressing negative stories and promoting hits on his opponents. If it were, lots of what the American press does would be illegal.
The specific theory of illegality with regard to AMI is that it paid off a different woman in order to buy her story and kill it. AMI agreed to a non-prosecution agreement with the Justice Department about this, which like the Cohen plea is not proof that the state courts should defer to AMI’s view of the law. DOJ’s theory is that AMI made a de facto contribution to the Trump campaign by paying off the source for an exclusive and then killing the story. But there is a big slippery slope in making this a rule: Media organizations spend money all the time to produce stories that help or hurt candidates. And sometimes, they expend their resources to kill stories. In 2020, there were all manner of exertions made — many of them involving the paid labor of journalists, national-security veterans, and lobbiysts — to quash the Hunter Biden laptop story. Was every penny spent on those exertions a reportable campaign contribution? And should Donald Trump have been on notice in 2016 that this was the law?
Bragg says that Trump and Cohen at one point tried to arrange payment to reimburse AMI. But they didn’t, so the only possible relevance of their discussions is to show that they didn’t intend to treat AMI’s expenditures as a donation, but to pay AMI back.
More importantly, Bragg theorizes that AMI falsified its own books to cover up its contribution to the Trump campaign. But the 34 felony charges against Trump are all about Trump’s payments to Cohen and how they were recorded on the books of Trump entities. How did any of that further the concealment or commission of AMI’s payments to a different woman? It’s a bait-and-switch. And if the court sees through that bait-and-switch, the entire AMI piece of the case collapses. At most, it is then just evidence of pattern and motive, not a crime in and of itself.
Problem Four: The Federal-Crime Hook
All of this assumes two highly unsettled questions of law. First, when the New York statute says “an intent to commit another crime or to aid or conceal the commission thereof,” does it mean only a crime under New York law, or also a federal crime? Second, even if New York law intended to give enforcement power to its criminal prosecutors to chase down violators of federal campaign-finance rules even when the federal authorities had declined to prosecute, would federal law preempt that power? Even Ian Millhiser of Vox sees the problem, because it was admitted by Mark Pomerantz, the former special prosecutor in Bragg’s office who argued for a different theory of prosecution:
[A] key legal question that will determine whether Trump can be charged under the felony version of New York’s false records law has never been resolved by any appellate court in the state of New York. The felony statute requires Bragg to prove that Trump falsified records to cover up a crime. Bragg has evidence that Trump acted to cover up a federal crime, but it is not clear that Bragg is allowed to point to a federal crime in order to charge Trump under the New York state law. The answer to this “gnarly legal question,” as Pomerantz put it, is simply unknown. So there is a serious risk that a New York judge will toss out the charges…
It is far from clear that a New York state prosecutor may charge Trump with a felony because he tried to cover up a federal, as opposed to a state, crime. As Pomerantz writes in his recent book, the felony statute is “ambiguous” — though it refers to “another crime,” it does not say whether this crime may be a federal criminal act or only an act that violates New York’s own criminal law. Worse, Pomerantz writes, “no appellate court in New York has ever upheld (or rejected) this interpretation of the law.”
As a general rule, you do not want to be banking in a case this high-profile on a theory the courts have not yet explored. The Just Security team likewise acknowledges that it is basically advocating for the retroactive application of creative lawyering as a basis for creating a crime:
There is a path for Bragg, though it is steep. . . . The text seems plain enough: there is no statement that this provision applies only to state offenses, and there is no exclusion of federal crimes. It is true that if you work your way through the statutory definitions of some of the terms in the statute, and the definitions of the definitions, you will find references to state law, but they are ambiguous and may well encompass federal law.
As Pomerantz points out, there is risk but Bragg could succeed here, including because there are no court decisions actually interpreting what constitutes “another crime,” for the purposes of this statute….The DA can…rely on principles of statutory interpretation. That is, when judges are interpreting a statute that is silent about a point like this, they look to similar statutes for guidance. For example, New York’s sentencing law does expressly exclude consideration of certain non-New York conduct. A court could hold that if legislators want to limit the scope of a law exclusively to state offenses, they know how to do it. The legislature’s silence about whether federal offenses can qualify as a “crime” under the statute could then be interpreted to mean that it does.
Again: Good luck explaining to an ordinary citizen that this process is nothing but Solomonically disinterested application of the law.
And that’s before you get to the question of federal preemption. John Yoo and Robert Delahunty have argued that the Supreme Court’s decisions suggest that it is an unconstitutional interference with uniquely federal enforcement powers to allow state prosecutors to enforce federal laws that are supposed to be uniform — such as the laws regarding presidential campaign finance. Those decisions include some rulings much-beloved by liberals, such as the 2012 decision in Arizona v. United States, which barred Arizona from criminalizing violations of federal immigration law.
As with the statute of limitations, remember: Every single one of these legal ambiguities has to be resolved in Bragg’s favor or he loses the case. If he’s wrong about even a single one of these knotty and unprecedented questions, he’s put the country through this for nothing.
In Part Three, I will address whether Bragg has properly charged a victimless crime.