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Opinion A New York indictment might be looming for Trump

The entrance to Trump Tower in New York on Oct. 17, 2021. (David 'Dee' Delgado/Reuters)
5 min

If you guessed that Manhattan District Attorney Alvin Bragg would be the first to file a criminal charge against defeated former president Donald Trump — for allegedly paying hush money to a porn actress — you might turn out to have a better crystal ball than most observers. Such a charge might seem a peculiar way to get the ball rolling against Trump, but it might nevertheless serve as the opening curtain for years of criminal challenges.

To be sure, Bragg (D) is not pursuing the most serious issues against Trump. Fulton County, Ga., District Attorney Fani Willis is toiling away on a meaty criminal indictment against multiple defendants stemming from Trump’s alleged effort to steal the state’s electoral votes. Special counsel Jack Smith is barreling down the track on the Jan. 6 insurrection and is pursuing the Mar-a-Lago documents case.

That said, if indicted in New York, Trump would gain the distinction of being the only former president in history to be criminally indicted. That would be worth savoring. It would permanently mar his record. If politicians get one line in history, his would start: “The only president to be twice impeached, criminally indicted and to break the 200-year tradition of peaceful transfer of power … ”

The case does not appear to be the criminal counterpart to New York Attorney General Letitia James’s sprawling civil case alleging widespread fraud and manipulation of real estate values. Bragg apparently does not have sufficient proof beyond a reasonable doubt to take on the whole gamut of Trump’s alleged business shenanigans.

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Bragg’s case appears to center on the payment of $130,000 in hush money to Stormy Daniels, an adult-film actress with whom Trump had an extramarital affair, in the run-up to the 2016 election. Fixer and former lawyer Michael Cohen negotiated the payment made to Daniels in October 2016. “Cohen drew down $130,000 from his home-equity line of credit and requested that it be deposited into a bank account in the name of Essential Consultants, a shell entity Cohen had incorporated a few days prior,” a Brookings Institution report states. “The next morning, Cohen went to another bank and wired $130,000 from Essential Consultants to Daniels’ counsel.” Thereafter, he submitted a series of invoices to Trump’s company for $35,000. “These invoices were accounted for in the Trump Organization as ‘legal expenses,’ and by the end of 2017, totaled $420,000.”

After repeatedly denying the affair, Trump finally conceded making the payments to Cohen but argued it wasn’t a campaign violation.

Bragg appears to be focusing on “New York Penal Law § 175.10 [that] makes it a misdemeanor crime to delete, alter, or make a false entry in the business records of an enterprise with the intent to defraud,” according to the Brookings report. “The offense is upgraded to a felony if prosecutors can prove intent to further or conceal another criminal offense, such as insurance or tax fraud.”

Norman Eisen, one of the Brookings report’s writers, told me, “There is a clear violation of the New York state criminal statute that penalizes keeping false books and records. … Trump and his business colleagues falsely accounted for these hush money payments in their books and records as the payment of legal fees to Michael Cohen when they were no such thing.” That does seem to be squarely within the statute.

Bragg likely won’t pursue just a misdemeanor (though it’s possible). His felony case would depend on finding another criminal offense. And that gets tricky. It’s not clear that Bragg can use a federal campaign violation statute to serve as the additional crime to achieve a conviction under a New York criminal law.

Alternatively, he might cite a separate New York statute that bars expenditures or solicitations “for the purpose of evading the contribution limitations.” Though there would be preemption issues under federal law, Bragg might prevail. He might also have another fact pattern we have yet to learn about (e.g., misrepresenting payments on other legal documents). Without knowing the specific statute Bragg would use, it’s hard to assess the strength of his case.

Bragg would also have to address the statute of limitations that ordinarily would require the case be brought within five years after the last payment. Bragg, however, could claim that concealment of the payment was an ongoing fraud, or, alternatively, that the statute was tolled — suspended — while Trump was almost continuously out of the state. (A covid-related statute that tolled cases could also be used.)

Bragg would also have to prove beyond a reasonable doubt the ordinary elements of the crime, including criminal intent. Bragg would not need to rely solely on Cohen, who is himself a convicted felon; he almost certainly has documents and other testimony (plus Trump’s admissions) to bolster the case.

Some legal commentators are skeptical about Bragg’s case. And if this were the only grounds for pursuing the former president, it might, as Rick Hasen writes, be “ill-advised to prosecute Trump on this difficult legal theory.” However, Bragg could issue superseding indictments if more evidence arises (from, among other sources, the state’s civil case).

Moreover, Bragg’s indictment might light a fire under other prosecutors and advance the proposition that even ex-presidents must follow the law.

It would also remind us that Trump won in 2016 in part by disguising who he is. If voters had known about the affair and the hush money, would he have won?