Alvin Bragg has a very good chance of winning his case against Donald Trump, which began opening arguments on Monday.
The Manhattan residents on the jury hail from one of the most anti-Trump counties in America. Democrats vastly outnumber Republicans here, and Trump, who lies repeatedly and has already been indicted in three different federal cases unrelated to Bragg’s prosecution, makes for one of the least sympathetic defendants imaginable.
While one of the federal cases against Trump — allegedly obstructing the federal government in an investigation of his mishandling of classified documents — is much more straightforward, Bragg is attempting to convict the incendiary ex-president on the grounds of allegedly paying hush money to a mistress and mucking up the 2016 election.
To win, Bragg will have to prove a novel legal theory. In a Manhattan courtroom, he can — but that doesn’t mean the Democrats who revile Trump shouldn’t be at least a little skeptical of his case.
The Manhattan DA’s office has accused Trump of violating New York State law by allegedly agreeing to obscure a series of reimbursements to his former lawyer and fixer, Michael Cohen. Cohen, a key witness against Trump in the case, allegedly paid $130,000 to adult film star Stephanie Clifford, known as Stormy Daniels, days before the 2016 election, in exchange for her silence about an alleged affair with Trump. Trump denies the allegations and the affair.
There’s little reason to believe Trump, a serial adulterer who has spent his career partnering with various fixers and sympathetic outlets, like the National Enquirer, to pay off anyone who might spread unflattering truths about his conduct. As a politician and businessman, Trump is shameless and devoid of scruples.
The question, though, is why it might be a crime that Trump tried to pay off an adult film star to protect his own political fortunes. Wealthy men have long tried to throw their money at problems to make them go away. What about “hush money” is criminal?
Bragg charged Trump with falsifying business records in the first degree, a felony. The felony counts arise out of allegedly false entries that Trump made in various business records in order to make the payment to Daniels seem like ordinary legal expenses paid to Cohen.
The trouble for Bragg could be the legal theory underpinning the case. Mark Pomerantz, a former prosecutor in the Manhattan DA’s office who was involved in the Trump investigation prior to his resignation in 2022, believed a key legal question was whether Trump could be charged under the felony version of New York’s false records law. The felony statute requires Bragg to prove that Trump falsified records to cover up a crime.
It’s not impossible that the Supreme Court of the United States, with its conservative majority, could decide that it needs to weigh in on whether Trump should be shielded from this particular prosecution.
Trump, ultimately, is not being charged with a campaign finance violation or making the payments to Daniels herself. The case rests on violating a law that makes it a crime to falsify business records with the intent to defraud, specifically to conceal another crime — the federal legal violations at the heart of Cohen’s conviction.
Normally, falsifying business records in this manner is only a misdemeanor under state law. But someone accused of falsifying business records may be charged with a felony if their “intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.”
Bragg has said the Trump Organization records were falsified to conceal or aid criminal activity but has not specified the exact crime allegedly hidden. This will probably come into view once the trial commences.
The risk for Bragg, ultimately, is quite high. If he loses at trial, Trump scores an immense political victory. His argument that he was the victim of a politicized prosecution will have much more validity to the average voter in an election year.
If Bragg wins — still more likely with a Manhattan jury — he could have his conviction overturned if Trump appeals to the Supreme Court. That would be, for him, a disastrous setback. But maybe he wins and the case never gets that far — or the Supreme Court sides with Bragg over Trump. We’ll know soon enough.
Ross Barkan is a journalist and author in New York City.
Ross Barkan , 2024-04-22 17:40:41
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