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After Trump arraignment and speech, campaign to legally undermine charges begins in earnest

Trump says case against him should be 'dropped immediately' as legal experts zero in on its many potential weaknesses and predict an early motion to dismiss.

April 5, 2023 12:12am

Updated: April 5, 2023 7:09am

With a somber, historic arraignment now in the rear view mirror, Donald Trump and his legal team have started attacking his indictment as an illegitimate use of the justice system to interfere with his 2024 electoral chances.

"This fake case was brought only to interfere with the upcoming 2024 presidential election and it should be dropped immediately," Trump said in Palm Beach after returning from court in New York City on Tuesday.

The statute of limitations, Manhattan District Attorney Alvin Bragg's press conference, grand jury leaks and the indictment's insinuation of the former president's intent are some of the likely early challenges, legal experts said after reading the 16-page indictment and accompanying statement of facts.

But a "Bridgegate" case involving on-again, off-again Trump pal Chris Christie may give the defense team some of its most fertile ground to attack the prosecutor's allegations that the former president was engaged in a conspiracy to defraud. All 34 felonies filed against the former president alleged he falsified his company's documents with an "intent to defraud" and hide hush money payments to porn actress Stormy Daniels.

Back in 2020, a unanimous U.S. Supreme Court in a case called Kelly vs. United States overturned the convictions of former Gov. Christie's aides in New Jersey in a scandal involving the closure of bridge lanes. The justices ruled the defendants couldn't be convicted in a conspiracy to defraud without proof they sought to steal someone's money or property.

That same standard for proof to defraud also has been upheld in the New York state court systems, even in a famous case about fake legal records known as People vs. Hankins.

Legal experts said Bragg's effort to tie Trump to a conspiracy to defraud could open the door for a significant legal challenge.

"The Supreme Court case, the Kelly case with Bridgegate, this is on all fours with Kelly," former District of Columbia U.S. Attorney Joseph diGenova told the "Just the News, No Noise" television show on Tuesday night. "There's nothing of value that the former president defrauded anybody of."

Harvard law 

professor emeritus Alan Dershowitz agreed the fraud standard is one of many complications for the prosecution. The statute of limitations for the alleged crimes and illegal legals of grand jury information are others, he added.

"Where's the victim here?" Dershowitz asked. "Who was hurt? Stormy Daniels isn't the victim. Who is the victim here? And do you ever devote that much time and resources- a lawyer's time to such a victimless crime?"

Trump attorney Jim Trusty signaled Tuesday a motion to dismiss the charges outright for legal insufficiency could be in the cards early on.

"Because most of us anticipated an indictment that would have the frailties this one has, the idea of trying to expedite a motion to dismiss is not totally foreign," Trusty said on CNN.

Trusty said one challenge that Bragg's team faces is the fact that non-disclosure agreements and "hush-money payments" are not illegal, and have been used in Congress on many occasions with even tax monies. 

"If that was illegal, Congress would be in a lot of trouble," Trusty told CNN. "Right? You've got an entire fund set up for congressional NDAs based on harassment. So it's not illegal to have it. Nobody's disputing whether there was a nondisclosure agreement."

Trusty said that Bragg is "picking up the trash that the U.S. Attorney's Office wouldn't touch, that his predecessor wouldn't touch, that he wouldn't even touch the first time but now for whatever back channel reason, it will be real interesting in pushing for information about how he made this decision."

Trusty, who represents Trump on Jan. 6 matters and the Mar-a-Lago raid over classified documents, added that "pre-trial motions should be very powerful" in this particular case.

Dershowitz predicted the early defense attacks on the case will include a motion to change the trial venue out of Manhattan, a challenge to the statute of limitations and then a motion to dismiss.

Trump previewed his own attacks on Bragg during his speech after the arraignment, saying the Manhattan DA campaigned on an effort to "get President Trump" and may have violated laws by failing to stop grand jury leaks.

“The criminal is the district attorney because he illegally leaked massive amount of grand jury information for which he should be persecuted or at a minimum he should resign,” he said.

diGenova, the former United States Attorney for the District of Columbia, said the case against Trump could very well be dismissed. 

"I think this indictment is an embarrassment to the historic Manhattan District Attorney's office. It's an embarrassment to the bar of the city of New York and the court system of New York. This case should be dismissed for a number of reasons," he said. "Statute of limitations, prosecutorial misconduct, failure to state a crime."

Michael Bachner, a former prosecutor at the Manhattan DA’s Office, said the contents of the unsealed indictment were old news.

“I think the case has a fact that a jury can convict on but, we were all thinking there would be more. This is old stuff. There’s statute of limitations issues. There’s big issues related to the legality of the charges. It’s going to be hotly contested," said Bachner. "And then whether or not the jury is going to want to convict a candidate for president based on these types of facts.”

The next in-person court appearance in the case is scheduled for Dec. 4.

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