Former president Donald Trump might have thought he dodged a bullet in New York City. Last February, Manhattan District Attorney Alvin Bragg seemed to decide not to move forward with a case against Trump for allegedly fraudulent practices at his business (to the dismay of two career prosecutors leading the investigation, who quit).
But Trump’s legal problems in the city are far from over, as he learned on Monday. Bragg’s probe remains a serious threat to him, with potentially far-reaching implications.
The New York Times reports that Bragg’s office “began presenting evidence to a grand jury about Donald J. Trump’s role in paying hush money to a porn star during his 2016 presidential campaign, laying the groundwork for potential criminal charges.” There is no indication as to whether Bragg decided to pick up on the much larger set of inquiries his predecessor launched into allegations that Trump inflated the value of assets to secure favorable loans and other benefits.
Trump has denied wrongdoing in making the hush payment, and he and his company have repeatedly dismissed Bragg’s investigation as a “witch hunt.” Nevertheless, the resumption of grand jury proceedings should provide a reminder to Republicans of the distasteful baggage that comes with Trump. Do they really want to endure a presidential race with a nominee potentially facing trial for a payment he made to a porn star?
Critics of Bragg might speculate that the district attorney only perked up after one of the prosecutors who resigned wrote a book about his investigation into Trump. Or perhaps he was prodded to act by state Attorney General Letitia James, who filed a civil lawsuit against Trump and others regarding his business practices. As she wrote in her complaint: “Among other laws, Defendants repeatedly and persistently violated the following: New York Penal Law § 175.10 (Falsifying Business Records); Penal Law § 175.45 (Issuing a False Financial Statement); and Penal Law § 176.05 (Insurance Fraud).”
In any case, Bragg’s delay should not affect the case against Trump, should the district attorney’s office decide to pursue charges. It is true that the five-year statute of limitations for crimes committed in 2016 would have normally expired at the end of 2021. But as Norman Eisen, a Brookings Institution fellow who served as co-counsel for House impeachment managers during Trump’s first impeachment hearings, explained to me, Bragg has a strong case that the statute of limitations was tolled while Trump was largely out of the state during his presidency.
Those demanding that Trump face consequences for his misdeeds should breathe a sigh of relief that Bragg might be willing to bring a charge against the former president. Bragg might have concluded that proving Trump’s knowledge and criminal intent in the broader financial probes was too daunting a task, but that it is doable in the context of the hush payment.
It’s not unheard of for a prosecutor to revive a case that had previously been abandoned. Former prosecutor Barbara McQuade tells me, “The best explanation I can think of for a restart like this would be new evidence, rather than simply a reconsideration of the same evidence that caused Bragg to decline charges previously,” She adds, “It appears that [former Trump lawyer] Michael Cohen is a key witness. In light of his prior convictions, prosecutors would want to corroborate his testimony with documentary evidence. Perhaps they have been able to obtain that corroborating evidence.”
It remains an open question as to whether this is the sum total of Bragg’s case against Trump. In December, his office did obtain a criminal tax fraud conviction against the Trump Organization, but that was for the discrete matter of under-the-table perks to the company’s executives. Allen H. Weisselberg, the company’s former chief financial officer, pleaded guilty and accepted a five-month prison sentence in exchange for testimony. Trump himself was not charged, but the company bearing his name was forced to pay a $1.6 million fine.
None of this is a substitute for a prosecution against Trump for his plot to overturn the 2020 election or for any of his other ego-driven misconduct, such as retaining classified materials and obstructing the government’s efforts to have them returned. But Bragg’s probe helps fortify the principle that no one is above the law. For that reason, Bragg’s belated attempts to hold Trump accountable should be applauded.