The New York indictment against Donald Trump, which will not be unsealed until he is arraigned early next week, reportedly includes “more than two dozen counts.” That’s a surprisingly high number if the case is based entirely on the $130,000 Trump lawyer Michael Cohen paid porn star Stormy Daniels in 2016 to prevent her from talking about her alleged 2006 affair with Trump. The litany of allegations reinforces the impression that Manhattan District Attorney Alvin Bragg, a Democrat, is trying to justify this belated and dubious prosecution by turning minor misconduct into a case that looks serious until you consider the underlying charges.
According to reports based on anonymous sources close to the investigation, Bragg is relying mostly on state law that makes falsifying business records “with intent to defraud” a misdemeanor. Trump, who reimbursed Cohen for the secret payment to Daniels, allegedly violated that law when his firm misrepresented the reimbursement as payment for legal services under a non-existent guaranteed amount agreement. If the Trump Organization recorded the payment in more than one document, those records could be the basis for several counts under this statute. But each of those counts would still be a Class A misdemeanor, punishable by a maximum fine of $1,000 and/or up to 364 days in jail.
Falsifying business records becomes a Class E felony, punishable by up to four years in prison, when the defendant’s “intent to defraud includes the intent to commit another felony or to aid or conceal its commission.” This is where federal election law comes into play: Federal prosecutors argued that Cohen’s payment to Daniels constituted an excessive campaign contribution, and he accepted that characterization in a 2018 plea agreement.
Because Cohen said he was acting at Trump’s behest, the implication was that Trump solicited and accepted an illegal campaign contribution. Yet the Justice Department never prosecuted Trump for that alleged violation, even after he left office. In 2021, an evenly split Federal Election Commission (FEC) declined to prosecute Trump, his business, or his campaign.
Federal prosecutors would face at least two daunting hurdles in trying to build a case against Trump based on the hush money payment. First, as former FEC Chairman Bradley Smith pointed out after Cohen’s guilty plea, “it is not clear whether the blackmail payment to the mistress is ‘for the purpose of influencing an election,’ and must be paid for with campaign funds, or is ‘personal use,'” and are therefore prohibited from paying with campaign funds.” Smith argued that “the best reading of the law is that it’s simply not a campaign expense to pay blackmail for things that happened years before someone’s candidacy—and therefore nothing Cohen (or, for that matter, Trump, too) did was a campaign finance crime.”
The difference between personal expenditures and campaign expenses depends on whether Trump was trying to avoid publicity that could hurt his chances of defeating Hillary Clinton or whether he was just trying to avoid embarrassment and/or spare his wife’s feelings. Although the proximity of the payment to the election supports the first conclusion, convicting Trump of violating federal law would require proving that hypothesis beyond a reasonable doubt.
How difficult it is to do so was illustrated by the 2012 trial of former North Carolina senator and Democratic vice presidential candidate John Edwards, who was accused of receiving several hundred thousand dollars in illegal campaign contributions from a wealthy supporter. Edwards used that money to hide the extramarital affair and the child that resulted from it. Federal prosecutors argued that his intent was to avoid a scandal that would have compromised his campaign for his party’s 2008 presidential nomination.
Edwards claimed that covering his lover’s living expenses was a personal expense intended to defraud his wife, who was dying of cancer at the time. Jurors apparently favored that interpretation, as they acquitted Edwards of one charge while deadlocked on five others.
Another major challenge in proving a case like this has to do with the ambiguity that faced the Edwards jury: prosecutors must prove that the defendant “knowingly and willfully” violated federal election law. In Trump’s case, it is not clear that he had the requisite intent, as he seemed genuinely confused about what federal election law required.
In addition to the count based on the payment to Daniels, Cohen pleaded guilty to causing an illegal corporate campaign donation by organizing The National Enquirer pay ex Playboy model Karen McDougal $150,000 for her the story of sex with Trump, which she kept secret. “Those two counts aren’t even a crime,” Trump told Fox News after Cohen’s guilty plea. He emphasized that he reimbursed Cohen with his own money, not campaign funds, which “could be a bit of a gamble.”
Responding to those comments, CNN political correspondent Chris Cillizza noted, “What Trump doesn’t know about campaign finance law is, um, a lot.” But if Trump did not understand the law, which Smith claims is vague on this point, and/or did not anticipate how federal prosecutors would interpret it, he did not “knowingly and willfully” violate it.
“With respect to both payments,” the sentencing memo in Cohen’s case states, “he acted in coordination with and at the direction of Individual-1,” i.e., Trump. But that doesn’t necessarily mean Trump understood the payments were illegal, which would require rejecting what the former FEC chairman describes as “the best interpretation of the law” and acknowledging a distinction Smith thinks is “vague at best.”
In short, federal prosecutors probably had good reasons to decline to indict Trump. Yet now Bragg is relying on that uncharged and unproven federal crime to prosecute Trump for a crime under state law. There are several problems with this.
First, if Trump didn’t think he was breaking federal law, it’s hard to see how he could have falsified business records with the intent to cover up that crime. Second, it is not clear that a violation of federal election law counts as “another crime” under the New York statute.
The most promising basis for that claim appears to be Section 17-152 of the New York Election Law, which states that “any two or more persons who conspire to promote or
prevent the election of any person to public office by unlawful means, and whose conspiracy is effected by one or more parties thereto, shall be guilty of a misdemeanor.” Cohen and Trump are two people, and Cohen says they conspired to promote Trump’s election by which paid off Daniels and organized National Enquirer payment to McDougal.
The Justice Department (and Cohen) described both payments as violations of federal election law. If that counts as an “unlawful means,” the violation of Section 17-152 could qualify as the second crime Trump allegedly tried to cover up by falsifying business records.
“Under New York law,” Joshua Stanton and three other attorneys said in a recent Just safety essay, “‘illegal means’ appears to be interpreted broadly—and not limited to crimes… In a 100-year-old opinion, a state appeals court with jurisdiction over Manhattan ruled that ‘illegal means’ as written in another law does not require ‘the commission of a crime.’ Instead, the court held that ‘unlawful means’ simply referred to conduct ‘unauthorized by law.'”
That definition, Stanton et al. say, “is consistent with what we would expect to find when interpreting the meaning of section 17-152.” According to the New York Court of Appeals, they note, undefined statutory terms “generally should be given their ‘ordinary and generally understood meaning,'” and “dictionaries are ‘useful guides’ in ascertaining that meaning.” They quote Merriam-Webster definition of illegal as “unlawful” or “unlawful”.
Assuming that New York courts interpret “unlawful means” broadly, Section 17-152 could list a predicate “crime” that elevates the falsification of business records to a Class E felony. This would essentially concatenate two misdemeanors (falsifying business records and conspiring to promote of one’s choices in “illegal ways”) into a criminal offense. Based on the same assumption, Trump could also face separate misdemeanor charges under Section 17-152 for the Daniels and McDougal payments.
New York’s statute of limitations typically requires misdemeanors to be prosecuted within two years and Class E felonies to be prosecuted within five years. But that law includes an exception for “any period after the commission of the offense during which … the defendant was continuously outside this state.”
During his presidential term, Trump mostly lived in Washington, and in 2019 he changed his official residence to Florida. In determining whether the prosecution can proceed, a 1999 New York appeals court ruling indicates that the time Trump spent in DC and Florida should be deducted from the time since the Trump Organization misrepresented Cohen’s compensation.
Assuming Bragg can avoid the statute of limitations, the question remains: why bring this case at all, let alone six years after the underlying conduct?
There was nothing inherently criminal about paying Daniels or McDougal. These payments become criminal offenses only if they are interpreted as illegal campaign contributions. Although federal prosecutors interpreted the law that way in Cohen’s case, they conspicuously declined to charge Trump under the same theory. Manhattan prosecutors under Bragg’s predecessor spent years mulling the possibility of building a state case based on the same conduct and ultimately decided it wouldn’t work.
Bragg’s questioning of that conclusion smacks of a desperate drive to punish a disgraced political opponent, which is exactly how Trump and his supporters are portraying him. When you decide to make history by prosecuting a former president, especially when that former president is seeking office again by running against a current president who is a member of your own party, you better have a solid case involving serious crimes. Bragg, which relies on debatable facts, untested legal theories and claims that are cheesy but far from earth-shattering, doesn’t seem to have such a case.
“We will prosecute the former president for, essentially, misdemeanor falsification of business books?” pie former Rep. Peter Meijer (R–Mich.), who voted to impeach Trump after the Capitol riots in 2021. “We’re crossing the Rubicon for that? That looks like fucking weak sauce.”