Trump prosecutors cross perilous Rubicon, now face test over credibility, consistency and clock
Recent Chris Christie corruption case could be Achilles heel for Bragg indictment, according to legal experts who see significant weaknesses.
Manhattan District Attorney Alvin Bragg thrust America into uncharted political and legal waters when he secured a grand jury indictment against Donald Trump. Soon his team will face withering scrutiny that will test three crucial elements of his case: the credibility of his witnesses, the clock known as the statute of limitations and the consistency of his application of fraud law.
The latter, which has received little media scrutiny, may prove prosecutors' most Herculean challenge as the courts for both New York and the nation have a very clear and high-bar definition of what constitutes the act of defrauding, something that is assumed to be a central element of the hush money scandal.
At present, no one knows for sure what's in the indictment, save for the prosecutors and grand jurors who handed up the charges. But the country will learn for sure next week when Trump becomes the first current or former president to surrender to a criminal arraignment.
At that moment, most likely on Tuesday, Bragg's team will cross a proverbial Rubicon, a point of no return that will reshape the future of American law and politics. And his team will face unprecedented scrutiny from the courts, the American electorate writ large and the Congress, as Speaker Kevin McCarthy made unmistakably clear Thursday night.
CNN is suggesting the indictment will charge Trump with as many as 34 counts. Trump's lawyers weren't given any specifics but are prepared to defend a large number of charges — they called it piling on — that could focus on a non-disclosure payment to porn actress Stormy Daniels, an effort to hush a second woman, Playboy model Karen McDougal, and maybe other transactions inside his company in the shadows of the 2016 election and his early presidency.
They expect, however, the primary theory of the case to be that Trump caused his New York-based company to record false entries disguising non-disclosure payments to women as legal expenses for former attorney Michael Cohen in an effort to evade federal campaign finance laws. To make that leap, prosecutors will have to claim those acts amounted to a conspiracy to defraud.
Trump's lawyers have spent months preparing the legal equivalent of the MOAB (Mother of All Bombs) that will assail the credibility of Bragg's witnesses, the application of his legal clock and the consistency of applying the legal fraud standard,
Their plan for their legal assault was summarized succinctly in a brief interview late Thursday night with defense team member Timothy Parlatore.
"I look forward to reading the indictment," Parlatore told Just the News. "However, all indications are this is a legally deficient case based on factually deficient witnesses."
As the Bragg drama dragged out over the last two months, most of the attention has focused on the questions of the statute of limitations and the credibility of witnesses.
But experts steeped in New York law believe Bragg's most lethal Achilles heel may rest in the prosecution's efforts to make this a case alleging a conspiracy to defraud. The reason is simple: The act of defrauding under New York and federal law must involve more than deceit. It requires proof of an effort to steal money or property from others, courts have consistently ruled for decades.
In the precedent-setting New York case of People vs. Hankin, for instance, the court struck down an effort to prosecute a lawyer for filing a false legal bill to disguise some activity in the case specifically because the act did not steal money or property.
"Even an intent to deceive and conceal another crime does not eliminate the required element of intent to defraud, commonly understood to mean to cheat someone out of money, other property or something of value," the court held.
The U.S. Supreme Court has held similarly, including in a 1987 case known as McNally v. United States in which the justices declared the object of any scheme alleging fraud must be to deprive a victim of money or property.
The high court reaffirmed that notion just three years ago in one of America's most famous recent political scandals, former New Jersey Gov. Chris Christie's "Bridgegate" case. In that case, the justices struck down the federal fraud convictions of some former political aides on the grounds that their political lane closure scheme did not deprive victims of money or property.
You can read the Bridgegate case ruling here:
Former federal prosecutor Randall Eliason, now a George Washington University law professor, wrote in a law blog this week that the fraud issue was likely a deadly poison pill for Bragg's case, or as he put it, the "issue that could sink the New York Trump prosecution" because it would be hard to prove Trump was trying to steal anyone's money or property by putting a false entry in his own company's books.
"Both the misdemeanor and felony charges require that the defendant acted with 'intent to defraud,'" he noted. "Most discussion of the statute as applied to Trump has simply ignored or glossed over this element. But it's a critical requirement, and one that prosecutors likely could not prove."
The cast of characters who make up the prosecutions case is viewed by many as another weakness in Bragg's impending prosection.
Few dispute that porn stars who signed previous letters denying a Trump affair while seeking his money, like Daniels did, and lawyers like Cohen who have been stripped of their license and convicted of multiple felonies that include lying make weak witnesses in the first-ever criminal prosecution of a former occupant of 1600 Pennsylvania Avenue.
"It's the worst, weakest, most abusive case of prosecutorial indiscretion," Harvard law professor emeritus Alan Dershowitz, an unbashed liberal and self-described Joe Biden supporter, told the "Just the News, No Noise" television show. "In my 60 years of practicing law, I have never seen a weaker case."
He added: "I have never seen a case that would be so easy to win if the person's name was not Donald Trump and the city was not in New York. There's a risk he could lose with some kind of squirrel jury in New York, who will be terrified to come home to their family and friends and say we acquitted Trump."
Well-known New York lawyer Robert Costello, who testified in favor of Trump during the New York grand jury probe, said the case will rest heavily on Cohen, the former Trump Organization fixer who was convicted in 2019 of multiple felonies that included lying to Congress about his dealings with Trump on an unrelated real estate deal in Russia.
Since his conviction, Cohen has been tripped up by other falsehoods like claiming he never sought a job in the White House or a presidential pardon from Trump, two claims contradicted by contemporaneous evidence and testimony of other witnesses.
But Costello's testimony as someone who briefly advised Cohen in 2019 will bring a more direct challenge to the specifics of Bragg's case. Costello provides an eyewitness account and 300-plus pages of contemporaneous documents alleging Cohen told him that he had concocted the scheme as Trump's lawyer to disguise the hush money payments to the women as legal reimbursements, going so far as to take out a personal home equity loan to hide it from the Trumps and his own wife.
Costello also said Cohen, then expressing suicidal thoughts and looking for any leverage to avoid his own prosecution, repeatedly claimed in 2019 he had no incriminating evidence against Trump.
"Michael Cohen is a serial liar," Costello told Just the News. "But even a serial liar tells the truth, once in a while. And when a person like Michael Cohen is in extremis, he's ready to kill himself, that's the one time that he's going to give up Donald Trump if he had something at that point in time. But he didn't."
Prosecutors are likely to counter by providing evidence and testimony from other witnesses, like former National Enquirer publisher David Pecker, who has admitted previously he was part of an effort with Trump and Cohen to make the women's stories of alleged affairs go away during the 2016 election by a tactic known as "catch and kill" where the women are paid by the tabloid for stories that never get published.
Cohen also has made public a tape recording of a 2016 conversation in which Trump appears to have some knowledge of a payment planned for McDougal.
The last issue Bragg's team will face is about the timing and upgrading of what is traditionally a misdemeanor charge of false business record-keeping to a felony.
New York law normally makes the false business entry charge a misdemeanor with a two-year statute of limitations, which has long since expired. Prosecutors have argued they could upgrade the charge to a felony with a five-year statute by claiming the false entries were part of a conspiracy to evade a felony crime like federal election law reporting requirements for the 2016 campaign.
But that too, experts said, faces significant flaws since federal prosecutors and the Federal Election Commission — the ultimate experts on presidential election law — both declined to bring such cases and the statute on those crimes at the federal level also has expired more than a year ago.
The clock-has-run-out argument is a viable line of challenge likely to be considered by the courts, former Manhattan DA prosecutor Jeremy Saland told the New York Post.
Bragg's defenders argue he could try to extend the statute even further by claiming Trump was out of New York for much of the five-year legal window as president and a Florida resident, but Dershowitz said that argument is also likely to be viewed as preposterous by serious jurists.
"This is the most abusive case I've ever seen," the Harvard lawyer said. "And it just violates due process in every way. The statutes are inapplicable. The statute of limitations has expired."
The three legal challenges that lie ahead have also spooked some in the anti-Trump news media, like The Washington Post, which published an editorial on Friday distancing itself from Bragg's indictment decision.
"The Trump indictment is a poor test case for prosecuting a former president," the newspaper declared in an editorial that reverberated across the nation's capital.