Manhattan District Attorney Alvin Bragg’s historic 34 felony charges against former President Donald Trump hinge on dubious legal theories that critics say make an extraordinarily weak case.
Mr. Bragg charged Mr. Trump with falsifying business records to conceal payoffs to people who threatened to come forward with negative stories about him before the 2016 presidential election.
Falsifying business records is typically a misdemeanor under New York law, but the law allows the charge to be upgraded to a felony if the records are falsified to commit or conceal another crime.
Mr. Bragg elevated the charges to felonies, but neither the indictment nor the accompanying statement of facts spells out the second crime or crimes. Mr. Bragg vaguely states that Mr. Trump concealed the payments as part of a scheme to “violate state and federal election laws.”
Legal analysts said it’s a heavy lift to argue that the hush money payments — which are not illegal — violated the Federal Election Campaign Act, the most analogous statute to what Mr. Bragg is arguing.
“This is the most extraordinary expansion of the scope of federal election law you can imagine,” said James Bopp Jr., a lawyer who specializes in campaign finance law. “Under this theory, everything a politician does in his life can influence an election.”
In May 2021, the Federal Election Commission dropped the case of whether Mr. Trump violated election law with a $130,000 payment to pornography actress Stormy Daniels shortly before the 2016 election. That is one of the payments at the heart of Mr. Bragg’s case.
Still, Mr. Bragg’s team expressed confidence in their case in a Manhattan courtroom, where the charges were announced on Tuesday.
“That is what this defendant did when he falsified business records in order to conceal unlawful efforts to promote his candidacy, and that is why we are here,” prosecutor Chris Conroy told Judge Juan Merchan.
Mr. Trump, a candidate for the 2024 Republican presidential nomination, has insisted he did nothing wrong. He called the case against him political persecution. Speaking from his home in Florida after his court appearance, Mr. Trump called for the case to be dropped immediately because it was brought “only to interfere” with the upcoming election.
Tom Hogan, a former federal prosecutor and district attorney, said even if the case is weak, Mr. Trump’s defense attorneys face an uphill climb in New York courts. In the 2020 election, Joseph R. Biden defeated Mr. Trump by an 87% to 12% margin in the city. That’s the jury pool.
“People have been focusing on the legal technicalities, but they should focus on the real politics of the judge and the jury the defendant will be facing,” Mr. Hogan said. “The judge can make a huge difference in the case, and is a Manhattan judge who is up for reelection really wanting to say he dismissed charges against Donald Trump? This is a dangerous area for former President Trump.”
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Mr. Trump has said he wants the case moved out of Manhattan to the more conservative Staten Island.
Wherever the case is tried, Mr. Bragg entered a murky legal area by elevating the charges to felonies because he is suggesting that Mr. Trump violated New York state law to cover up a federal crime. As a local prosecutor, federal crimes fall outside of Mr. Bragg’s jurisdiction.
Mark Pomerantz, a former prosecutor in Mr. Bragg’s office who was involved in the Trump investigation, raised that question in a recent book and concluded that a New York court has never resolved the issue. So it’s not clear whether Mr. Bragg has the authority to point to a federal crime that hasn’t been prosecuted to upgrade the New York state charges to felonies.
That gives Mr. Trump’s legal team an opening to get the charges tossed out on a technicality.
“Alvin Bragg is using a laughable legal theory that he can bootstrap federal law onto local law and create a new New York felony,” said Mike Davis, president and founder of the Article III Project, which has advocated for conservative judges.
The statement of facts accompanying the charges lays out a complicated plan among Mr. Trump, his former fixer Michael Cohen and David Pecker, the CEO of American Media, which publishes the National Enquirer. Mr. Bragg said the trio worked to identify and pay off people with damaging information about Mr. Trump.
The hush money was paid to two women. The first woman is former Playboy model Karen McDougal, who was paid $150,000 for her silence about an alleged sexual relationship with Mr. Trump in 2006 and 2007. The other woman is Stormy Daniels, whose real name is Stephanie Clifford. She claimed to have had a tryst with Mr. Trump in 2006.
Mr. Bragg said another $30,000 payoff went to a former Trump Tower doorman who was peddling a story that Mr. Trump had a child out of wedlock.
According to the indictment, all of the payments were made before the 2016 election and recorded on the books of the Trump Organization in 2017 as “legal fees,” which Mr. Bragg argues is a falsification of business records.
Mr. Trump has denied affairs with both women, but he said he was aware of the payments. Evidence has never emerged to support the doorman’s allegations, and Mr. Trump has disputed the story.
Mr. Trump isn’t the first politician to pay off people with claims of wrongdoing.
Former Sen. John Edwards, a North Carolina Democrat, was charged with six counts of violating campaign finance laws for accepting $1 million from donors to obscure his pregnant mistress during his 2008 presidential campaign. A jury acquitted him on one count of receiving illegal campaign contributions and deadlocked on the others. The Justice Department declined to pursue the charges.
Lawmakers in Congress doled out $17 million in taxpayer funds from 1997 to 2017 to settle allegations of sexual harassment, discrimination and other cases. The lawmakers who settled the cases were never identified, much less charged.
“If payments to settle sexual misconduct allegations are campaign finance expenditures, then every single member of Congress who benefited from this taxpayer-funded system could be charged with a crime,” said Mr. Bopp, the campaign finance law specialist.
It’s also not clear whether the payments violated campaign law. Mr. Trump could plausibly say he made the payments to avoid personal embarrassment to himself or his family.
Mr. Trump’s legal team might posit that argument. The Supreme Court has ruled that campaign finance laws intersect with the First Amendment. For example, a politician who buys an expensive suit for a debate would not be viewed as violating federal campaign law.
“Making an allegation of an affair go away is more about [Mr. Trump] protecting his marriage rather than winning an election,” Mr. Davis said.
• Jeff Mordock can be reached at jmordock@washingtontimes.com.
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