If you hope that Donald Trump will face criminal charges for at least some of his misdeeds, there is a prospect worse than the possibility that the former president won’t be indicted. It is that he will be charged and escape punishment anyway.
Which is why, as much as I’d like to see Trump held to account, I am nervous about reports that New York District Attorney Alvin Bragg (D) is poised to seek an indictment of Trump relating to the payoffs he orchestrated to silence a onetime lover, porn star Stormy Daniels. The New York Times reported last week that Bragg’s office offered Trump the chance to testify before the grand jury considering the case, a sign that an indictment is imminent.
Perhaps Bragg, a state prosecutor, has found a way around the legal difficulties that would be posed by charging Trump with criminal violations under New York law. But only time, and an indictment if it comes, will tell.
Securing a criminal conviction requires not only convincing a jury of proof beyond a reasonable doubt. It also requires proving the precise elements of the charged criminal offense. Bad or corrupt behavior isn’t enough. Criminal law is reasonably easy to apply in straightforward cases of obvious crime — say, armed robbery or murder. It can be a far more unwieldy tool in complex cases of financial fraud or political malfeasance.
Trump’s former lawyer and fix-it man Michael Cohen pleaded guilty in 2018 to federal campaign finance violations for his role in orchestrating the hush money scheme, in which Cohen said he paid $130,000 to Daniels during the 2016 presidential campaign to secure her silence about an affair with Trump. Cohen said Trump arranged for him to be reimbursed in payments disguised as a retainer.
Cohen admitted to causing an unlawful corporate contribution (the reimbursement came from the Trump Organization) and making contributions in excess of permitted limits. At the time of Cohen’s plea, Trump was president and, under long-standing Justice Department policy, enjoyed immunity from prosecution while in office.
It might be technically possible for federal prosecutors to go after Trump now that he is out of office, but that does not seem likely. Among other things, federal prosecutors told the judge overseeing the case in 2019 that they would not bring charges against Trump.
This is frustrating and seemingly unjust: Why did Cohen have to serve time for doing something on behalf of Trump, who — at least so far — gets to skate?
But it’s not so easy to turn a federal case into a successful state prosecution, which is what Bragg is reportedly contemplating. “This is not a state case, it is a federal case, and they have all passed on it,” Trump wrote on his social media platform, Truth Social, and he might have a point.
Mark Pomerantz, a veteran of the Southern District who went to work investigating Trump for former Manhattan District Attorney Cyrus R. Vance Jr., walked through the complexities in his book, released last month, about the Trump probe. “Charges arising under federal law have to be brought by federal prosecutors,” he wrote. “Local prosecutors like the Manhattan district attorney can prosecute only violations of state or local laws.”
The problems are manifold. New York state law makes it a crime to falsify business records — for example, listing hush money payments as a retainer — but that is only a misdemeanor. It could rise to the level of a felony charge if prosecutors could show that Trump ordered falsification of records to conceal another crime. But would “another crime” need to be a federal offense, or would a state offense be sufficient?
Again, Pomerantz: “Cohen (with the agreement of Trump and others at the Trump Organization) had used phony documents and invoices to commit and conceal a federal election law violation, but there appeared to be no comparable state crime in play. So, to charge Trump with something other than a misdemeanor, [the district attorney] would have to argue that the intent to commit or conceal a federal crime had converted the falsification of the records into a felony.”
Pomerantz gave that strategy long odds. If Bragg’s office chose to proceed, he wrote, “there was a big risk that felony charges would be dismissed before a jury could even consider them.”
The New York Times suggested that the payments might have constituted a violation of state, not just federal, election law, but it’s not at all clear just what that state election violation might entail.
Plus, there are knotty questions about whether New York’s ordinary five-year statute of limitation would apply in the case; New York law also provides that the statute can be extended for up to five years if the defendant is “continuously outside this state.” The law doesn’t define what that means, but one thing seems certain: Trump would contest any extension.
“With respect to the ‘Stormy’ nonsense, it is VERY OLD & happened a long time ago, long past the very publicly known & accepted deadline of the Statute of Limitations,” Trump wrote on Truth Social in January.
Bragg is dealing with a wounded, but still dangerous, king. I hope he knows what he’s doing.