Manhattan DA inquiry: Bragg could face ‘uphill climb’ against Trump, legal experts say
Ryan King
Video Embed
Manhattan prosecutors will be diving into uncharted legal waters if they opt to slap former President Donald Trump with charges centering on an alleged hush money payment, according to legal experts.
Although divided over the merits of a potential indictment, several experts told the Washington Examiner that the legal blueprint is quite novel and untested. Many also surmised that prosecutors will have ample hurdles to overcome if they are to succeed in a criminal case against Trump.
“It’s going to be an uphill climb,” former prosecutor Elliot Felig told the Washington Examiner. “To call it a novel prosecution would be an understatement. I’ve never seen anything like this in a state courtroom. They use a federal election law as a means to upgrade a state charge into a felony. I’m not aware of any prior prosecution.”
Specifics of what an indictment will entail have not been revealed, but reports indicate that Manhattan District Attorney Alvin Bragg’s office is planning to couple a misdemeanor charge over an alleged falsification of business records with a federal campaign finance violation to achieve a felony charge.
In the run-up to the 2016 election, former Trump lawyer and fixer Michael Cohen wired $130,000 from a shell company to a lawyer for porn star Stormy Daniels, also known as Stephanie Gregory Clifford. In exchange, he received a signed nondisclosure agreement that Daniels would stay mum about an alleged affair with him roughly a decade prior.
Trump has denied the affair, wrongdoing broadly, and excoriated the investigation. Trump also claimed he was unaware of the payment, though subsequent audio that surfaced showed Cohen briefed him on a similar payment scheme made to former Playboy star Karen McDougal to stymie her from going public with their alleged affair.
Cohen later sought reimbursement from the Trump Organization for $180,035, $130,000 for the payment with an extra $50,000. Ultimately, that got bumped up to about $420,000 disbursed over 12 months, according to court records. Business records for the reimbursement scheme were listed as “legal expenses,” partly fueling the falsification claims.
“Context helps demonstrate that Donald Trump was primarily focused on keeping bad facts from going public during his campaign,” former federal prosecutor Franklin Monsour said. “From the facts that we know, in the public record, I think they would have a formidable case that Trump conspired to commit campaign finance fraud, which is essentially what the Department of Justice argued in its own filings related to Michael Cohen.”
Trump was a sitting president at the time when the Department of Justice went after Cohen for the payments. Cohen ultimately pleaded guilty in 2018 to a litany of charges, including a campaign finance violation.
“It doesn’t mean that Trump is guilty. Trump probably knows better than Cohen what his motives were, and I’m sure his motives were mixed. He wanted to avoid embarrassment to his wife, to his family, to his business, and possibly in part to his political ambitions. But that’s not enough for a campaign violation,” Alan Dershowitz, lawyer and Harvard Law School professor emeritus, said.
MANHATTAN DA WILL LIKELY ‘MOVE TOWARD AN INDICTMENT’ IN TRUMP CASE, LEGAL EXPERT SAYS
Trump’s case draws parallels to former presidential hopeful John Edwards, who faced charges for allegedly orchestrating donations to funnel hush money payments to a mistress. Edwards, who was John Kerry’s vice presidential running mate in 2004, later admitted to the affair. But he was ultimately acquitted on one charge and had a hung jury on several other related charges concerning an alleged campaign finance infraction.
“Here, however, I think there are additional facts that were not present for the John Edwards prosecution,” Monsour added, referring to audio of Trump talking to Cohen about the other hush money payment.
Regardless of whether the payment to Daniels was a campaign finance violation, Hans von Spakovsky, legal expert and former member of the Federal Election Commission, argues Bragg has no authority to enforce it, insisting that power rests with the FEC or the DOJ.
“The Manhattan DA has no authority to enforce that law,” von Spakovsky said. “Neither agency ever prosecuted for it, which is a pretty big sign they didn’t think it was a violation of the law.”
Further complicating Bragg’s potential case is the fact that the payment was given nearly seven years ago, running afoul of statute of limitations laws. Misdemeanor statutes are typically two years, while felony statutes are generally five years.
“This is a zombie case. And I would love for someone to get Bragg on the record and say, ‘Why now?'” Felig, who notes that he’s “not a Trump fan,” said. “It certainly looks like it’s a response to the political criticism that was launched against Bragg by people who wanted to indict Trump earlier.”
Still, he thinks Bragg might be able to overcome the statute of limitations by arguing that it should be tolled, or delayed.
“New York’s Criminal Procedure Law does have a tolling statute which says that the statute is tolled when somebody’s quote continuously out of the state. The case law is limited on it,” he added. “I think the indictment if it comes down, would survive a motion to dismiss based on the statute of limitations.”
To deploy the campaign finance argument, Bragg’s team will have to successfully argue that Trump’s business empire falsified records regarding the payment to Cohen. Paul Kamenar, counsel to the National Legal and Policy Center, contends that’s a “nothing burger.”
“I wouldn’t be surprised if lots of businessmen put down as a business expense travel and entertainment for personal purposes that they write off as a business expense. The bottom line, even under New York law, that’s a misdemeanor. It’s a nothing burger,” Kamenar said.
Against the backdrop of reports indicating that New York law enforcement was undergoing security preparations in the event of an indictment, Trump suggested he “will be arrested on Tuesday.” It is unclear what evidence Trump had to make that assertion, as a grand jury in the case was expected to hear from an additional witness Monday.
Trump also urged his supporters to “protest, take our nation back.” This is the type of activity Monsour believes could trigger a gag order on him, preventing him from discussing the case publicly.
CLICK HERE TO READ MORE FROM THE WASHINGTON EXAMINER
Regardless of how the Manhattan ordeal plays out, it “will be a controversial case any way you slice it,” Bradley Moss, a national security lawyer, contends.
“There is an untested legal theory at play, legitimate venue considerations, and the surrounding political ramifications,” Moss said.”The facts have been and remain fairly damning, and the Trump legal team’s main hope has to be getting this case tossed in pretrial motions. If this makes it to trial, the odds will not be in Mr. Trump’s favor.”