Manhattan DA's Trump case rests on shaky legal, ethical ground, experts say

Ordinarily, such a charge would be considered a misdemeanor and come with a two-year statue of limitation.

Published: March 18, 2023 1:02pm

Updated: March 18, 2023 11:27pm

Former President Donald Trump on Saturday shocked the world with an announcement that he expects to be arrested Tuesday in connection with an ongoing investigation by Manhattan District Attorney Alvin Bragg, a case legal scholars have suggested has a questionable legal basis.

The investigation involves Trump's 2016 alleged payment of $130,000 in hush money to Stormy Daniels via his former personal attorney, Michael Cohen, whom he later reimbursed.

While Bragg has not announced specific charges, legal scholars such as George Washington University Professor Jonathan Turley are predicting an indictment for falsifying business records under New York Section 175. Such a charge would likely be based on Trump's labeling his reimbursement of Cohen as a legal expense.

Trump's attorney, Joe Tacopina has argued that Trump's payment to Cohen was in fact a legitimate legal fee. Trump, he noted, never directly paid Daniels any money. Rather, he only paid his own lawyer for services rendered, i.e. legal fees.

"The payments were made to a lawyer, not to Stormy Daniels," Tacopina said last week on MSNBC. "The payments were made to Donald Trump's lawyer, which would be considered legal fees. Michael Cohen ... was his lawyer at the time and advised him that this was the proper way to do this to protect himself and his family from embarrassment. It's as simple as that."

The host then argued that the money Trump paid to Cohen went to Stormy Daniels and was therefore not a legal fee.

"It went to Stormy Daniels from Michael Cohen," the Trump attorney countered. "He decided he was going to do it this way and asked for the reimbursement of what he billed as legal fees. That is not a crime." 

Ordinarily, such a charge would be considered a misdemeanor subject to a two-year statute of limitation, meaning Bragg cannot pursue it solely on this basis. Bragg does, however, have the discretion to convert it into a Class E felony, if he can prove that Trump's alleged "intent to defraud involved further criminal intent to either hide the commission of another crime or to assist in the commission of that other crime," according to Saland Law.

In order to meet even the threshhold standard for prosecution, Bragg would therefore need to argue that Trump falsified business records concealing his reported "hush money" payment to Daniels with the intent to conceal another crime.

As a hush money payment to ensure silence about an affair would not be illegal in and of itself, Bragg's case would likely hinge on a possible campaign finance violation. If Cohen's payment to Daniels constituted an illegal campaign contribution, then the falsification of records would have concealed an underlying crime, providing legal predicate for a Class E felony charge of first degree falsifying business records. Trump would face up to four years in prison if convicted on the charge.

Bragg, therefore, needs to demonstrate that the payments occurred specifically with the intent to affect the election, a prospect Turley called "extremely difficult," given the myriad other legitimate reasons Trump might have for wanting to keep an alleged affair out of the spotlight.

Tacopina argues that the payment was not an illegal campaign contribution, both because Trump used his own money and because he would have made the payment regardless of whether he was running for president.

"This is Donald Trump paying with his own money," he told MSNBC. "Here's the bright line test, and here's where this case falls miserably ... If the spending were the fulfillment of a commitment or the expenditure would exist irrespective of a campaign, it's not a campaign law violation.

"End of story. This would exist irrespective of the campaign."

Characterizing the payment as a "nuisance settlement," Tacopina explained that people make such payments to make embarrassing problems disappear but that does not mean the claims are valid, noting his client "vehemently denies an affair."

Trump has labeled the case a political witch hunt, a claim he has often made of various legal actions against him. In this case, major legal scholars appear sympathetic to that argument.

Turley dubbed the possible trial a "prosecution by plebiscite," referring to the political pressure on Bragg to bring a case.

"The season opener of 'America’s Got Trump' might be a guaranteed hit with its New York audience — but it should be a flop as a prosecution," he concluded.

Harvard Law School Professor Emeritus Alan Dershowitz last week likened a potential Trump prosecution to Jim Crow-era legal tactics in which prosecutors predetermine a target's guilt and then find a charge on which to prosecute.

Writing in his Substack newsletter, Dershowitz, a member of Trump's defense team during his first impeachment trial, asked, "Does anyone actually believe that if someone else were accused of paying hush money to avoid a sex scandal in the manner that Mr. Trump is suspected of doing, he would be prosecuted?"

The former president "should not be indicted for novel and unprecedented technical crimes for which no one else would be prosecuted," he wrote.

Decrying "partisan selective prosecution," the renowned civil liberties lawyer concluded: "Equal protection of the law requires equal application and non-application of criminal statutes. Mr. Bragg would be violating that important principle if he seeks a grand jury indictment based on what now appears to be the slim evidence and even slimmer legal basis."

Ben Whedon is an editor and reporter for Just the News. Follow him on Twitter.

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