Posting on behalf of a reader, Nikki, who emailed me:
"Legally speaking, it seems that there is solid basis to indict the president for the conduct here. But an important question in my mind is, is this a good idea? Do the prosecutors really have an iron-clad, open and shut case against 45? Can every element of every charged crime be proved, beyond and to the exclusion of EVERY REASONABLE DOUBT? Based on what has been shown so far, I fear that the answer is no. I'm no legal expert, but it seems that the prosecutors may have trouble proving the intent elements of these crimes. When bringing charges against a former president, it is critical that the prosecutors have a 100% solid case. If 45 is acquitted of the crimes, I truly worry about what will come next. This whole exercise will backfire, majorly.
From a political point of view only, bringing these charges also sounds like an extremely risky bet, given his current campaign and his ability to whip up his supporters into action that can turn violent. Arguably, this fact bolsters the need to bring a solid, iron-clad case to trial. I fear that this is not the case here.
I agree. The Trump indictment presents an exceedingly precarious case, because there are multiple critical legal vulnerabilities, any one of which could wipe away the case. The case is a bit like an unstable tower of Jenga blocks, where one speculative, untested legal theory is stacked on top of another, any one of which could cause the whole thing to come crashing down. In my view, indictments should only be brought when there is a clear-cut, well-grounded case, particularly when it involves a former president.
1. Statute of Limitations (SOL): The 5-year SOL could prove fatal, as the relevant conduct occurred in 2016 and 2017. The prosecution appears to rely on a combination of Governor Cuomo's COVID-era emergency orders and a tolling statute that applies when the defendant is "continuously" outside the state. However, the applicability of the former to criminal proceedings is uncertain, and the latter may not apply given Trump's frequent visits to New York during and after his presidency. Losing on SOL arguments could obliterate the case, and I frankly doubt the DA would ordinarily bring an old case like this relying on tolling provisions.
2. Intent to Commit Another Crime: It seems crystal clear that federal crimes do *not* qualify. Unlike the news media, I don’t see a serious question about this. Penal Law sect. 10.00 defines "crime" as an "offense" for which imprisonment is “provided by any law of this state.” So federal crimes don’t count. Thus, the prosecution's theories hinge on state tax fraud and a misdemeanor under Election Law 17-152, both of which appear dubious.
3. State Tax Fraud Theory: The statement of facts lacks evidence suggesting that the payments were deducted on the Trump Organization's return or that the deductions altered the tax liability. Additionally, there is no clear indication that Trump was aware of the tax implications of his conduct. Nor is there any suggestion that the tax savings were material in the context of the Trump organization's *overall* return, which is the materiality analysis you need for tax fraud. Furthermore, Trump reportedly paid Cohen double the amount paid to Ms. Daniels, to cover the taxes Cohen was paying (apparently at a ~50% rate) on the money. Individual income tax rates are higher than corporate rates, so having Cohen pay the tax rather than Trump org means that tax authorities got MORE money than they were actually entitled to, not less (and Cohen and Trump Org were both in NY, so presumably the same state got the money). While it worked for Al Capone, I don’t think the tax fraud theory is legally viable here.
4. Election Law 17-152 Theory: The statute prohibits promotion of a candidate "by unlawful means." But I don’t think that this statute works either: even assuming that paying the mistress not to damage his candidacy is “promot[ion],” the “means” used to promote Trump (paying hush money) were perfectly lawful in and of themselves. The unlawful conduct was failure to disclose the expenditure, but that is a separate act, analytically distinct from any promotion. So I don’t think the text really fits here. (And even setting that aside, there’s field preemption under federal election law so it’s not clear that a state statute can be applied at all to a federal candidate like Trump.)
5. Constitutional Issue: Buckley v. Valeo says candidates have a right to spend as much of their own money as they wish promoting their candidacy. Both that case and Citizens United uphold disclosure requirements in general, but Citizens United emphasizes that even disclosure requirements should be given “exacting scrutiny” when someone brings an as-applied challenges—and such challenges should be upheld if the disclosure rule deters speech. Buckley v. Valeo implicitly recognizes you can spend money to influence speech of others, because that’s what you’re doing when you buy an ad on a network or newspaper. If you extend that principle and allow it to embrace paying someone for an NDA (or to refrain from negative speech about you), then Trump could have a strong as-applied challenge. In that case, the federal disclosure requirement would interfere with his right to spend his own money supporting his campaign as he sees fit, because the whole point of his payment to Ms. Daniels was to keep the issue private. If he then has to disclose it to the feds, the whole thing is pointless; the disclosure requirement as applied to this unusual fact pattern deprives him of his right to spend his money as he likes on his candidacy. (Admittedly, I view that challenge as more speculative than the preceding issues but I note it because it’s a federal issue that SCOTUS could review. If SCOTUS suspects that the state courts are running amok, they might be willing to entertain federal issues that are a bit more speculative.)
Overall, the indictment is fraught with legal uncertainties, making it a questionable choice for prosecution. A case against a former president should be unassailable, not built on a shaky foundation of speculative and novel theories.
If we're going to be prosecuting former presidents, no matter how odious they may be, it's super important the case be ironclad and the charges not be tickytack or abstruse. This doesn't clearly seem to be either. Misrecordings in internal bookkeeping that do not affect any external parties are not something you go after people for normally, least of all when they're being bootstrapped into felonies by an unspecified separate crime. And there are genuinely murky questions about what this underlying crime is -- and whether it might be a state crime preempted by federal law or a federal crime the feds (both under Trump and under Biden) actively declined to charge (perhaps because a previous presidential candidate skated, in a somewhat similar case).
If you're going to prosecute an unfortunately not-at-all marginal political candidate, it's not a time for legally innovative challenges. Now is not a time to make your public pronouncements vague, leaving out key points that are necessary to fully evaluate the charges. The entire country is judging whether these charges are legitimate and justifiable, based on what you do and say. And in these demented times, a marginal challenge is likely to *invigorate* his cause, which is not what any honest person should want now.
But a risky marginal challenge is what we seem to have here now. Perhaps because Democrats *want* to run against this guy, even. What could possibly go wrong?
Bragg is treating this like a normal case where you can swing for the fences, where if you miss it doesn't really matter because it's just nobodies who unjustly suffer. But this is not a normal case. This is not a normal plaintiff. This is the most dangerous criminal defendant in recent history, possibly much longer. You do not play games that increase the political prospects of a racist bigot who blithely roused a mob intent on political violence against *not even* his opponents but against the very structure of government and sat back and watched them with rapt attention rather than stop them.
But instead we have one morally small man taking on a morally much smaller man. It's a pity they can't both lose.
(And all this is before even counting that the underlying matter is -- deliberately putting it exactly as crudely as it is -- a man cheating on his wife by banging porn stars while his wife is at home with their months-old son, then trying to pay one off to keep her quiet. That *alone* should have been enough for everyone to reject him and to not act to improve his political chances. But in this dementedly partisan time, to say so is to invite accusations that you're aligned with the party that opposes him, or to rejoice that you're making your opponents do self-destructive things. Nobody actually cares about this country any more.)
I would have at least slightly more sympathy for this indictment if this were the only option to get him. (Tho I would still think it a stretch.) But it's not!
He's on clear audio recording hectoring Georgia election officials for an hour to find him a number of votes that's exactly what's needed to put him over the top, which plainly disconnects it from any particular narrative he might wrongly believe (whether comprehending its falsity or not) of outcome-changing vote-counting mishaps.
His mishandling of classified documents would have gotten any of the little people in serious trouble. (And he might only escape that because apparently all the non-little people are careless, in a way that gives him cover. Tho I would not put it past him to have actively withheld documents in a fashion that is not true of Biden, Pence, or any of the other people just making honest, but still not acceptable, mistakes -- and that may be enough distinction to enable DOJ to target him but not them. I think I've seen rumor of this at some point, but the stories all blend together enough I'm not certain.)
Heck, even the argument that he met the Brandenburg standard for incitement on January 6 is both a plainly more serious matter than this, and -- thanks largely to Cassidy Hutchinson -- more legally provable, tho IMO maybe too risky to take on. (This would have been best dealt with had Republicans impeached and convicted him -- impeachable conduct does not have to violate laws, it can be misuse or abuse of lawful political authority, lawfully exercised -- when they had the chance...but they do not understand that Democrats will never singlehandedly rescue them from the disaster they have created. They have to step up if they really want it to happen.)
But Bragg may not care, because he only has control over this one, only this one can boost his visibility, and only by his action can he be guaranteed anything actually does move forward. Bleh.
I think this case is a distraction from the prosecution that Fani Willis is working on for election interference in Georgia. That seems like a straightforward case that can and should be prosecuted. I wonder why she didn't file already—it seemed from news reports that that prosecution was ready to go.
I agree. My current view—subject to change based on additional information and reflection, perhaps in response to comments posted here—is best captured by the Washington Post staff editorial:
"Other [Trump] investigations underway include Justice Department examinations of the Jan. 6, 2021, insurrection and classified documents discovered at Mar-a-Lago, where the possibility of obstruction of justice is particularly grave. These are straightforward cases compared with the one proceeding in Manhattan. A failed prosecution over the hush-money payment could put them all in jeopardy, as well as provide Mr. Trump ammunition for his accusations of 'witch hunt.'"
I don't understand lawyers who complain about this case "going first", viewing it in a vacuum. My Magic 8 Ball tells me that all signs point to an indictment in Georgia and a federal indictment on the Mar-a-Lago documents, J6, or both. If you know anything about the courts in New York State, you know that, if either of the other indictments is handed down soon, the likelihood that the New York case would get tried first is slim, and that's not considering all of the motions and delay tactics Trump pulls in every case -- New York state court seems more likely to allow such efforts than federal court. It also doesn't consider the likelihood that the DOJ asks Alvin Bragg to stand down and let the federal case go first, a request to which one would assume Bragg would acquiesce.
I think those of us who wished that another case had gone first are less worried about any kind of scheduling conflict or prejudice to the other cases and more worried about the narrative and the optics. This case, since it's weaker than the others, facilitates Trump grandstanding about "witch hunts," allowing him to set up and reinforce his persecution narrative, into which he will then slot the subsequent cases—even though those cases are much stronger and most definitely not "witch hunts."
In a nutshell, we wish the Trump prosecutors could have put their "best foot forward," and the New York case is most definitely not that. Yes, we realize these prosecutors act independently—but Bragg is obviously aware of the news, so he knew at the time he sought the indictment that there were other cases in the pipeline that would be so much stronger.
Alvin Bragg had the prosecutorial discretion to not bring this case, clearing the runway for the stronger prosecutions. And discretion would have been the better part of valor here.
Thanks for responding. The only things I'd add are (1) I think this concern about "optics" goes away quickly after the other case(s) are brought, and (2) it's a "no win" with anything Trump. If Bragg overtly cooperated with the other cases and held back until another case went first, it would be one great conspiracy against Trump. And if he didn't overtly cooperate but it appeared that he held his case back so someone else could go first, they still would claim that it's all some grand conspiracy to "get Trump".
If everyone held back on prosecuting obvious crimes, then we come to another situation where Trump gets away with it, again, on a technicality. I keep coming back to: his lawyer served time for the same thing, so it's unclear why we are debating whether to go after Trump when his lawyer already served time for the same thing, essentially. I'm not sure how the principal (lawyer) goes to jail while the agent doesn't even get subjected to proceedings. If Trump's found not guilty (while Cohen served time), so be it. But I don't understand the holding back when he clearly committed crimes. it's just a matter of degree, and plenty of people are prosecuted for similar behavior. I think he's getting special treatment because of his name and unfortunate former title (as he was unqualified to be POTUS, and is a sociopath), that we're even debating this.
I agree with the Advisory Opinions hosts that I wouldn't put too much stock in the Cohen plea. It was a plea, so the facts and the law were never tested by any motion practice or jury trial. As defense lawyers will tell you, defendants plead all the time to charges that they had a chance of defeating, for all sorts of reasons.
But I agree with your other point that we should let the process play out. I don't support efforts to interfere with this prosecution by "investigating" Bragg (and certainly not by violence or threats or violence). Let the process run its course, and if Trump prevails, on the law or the facts or both, so be it.
What you regard as a technicality is entirely proper when used by people to defend themselves. What is not proper is when the government evades them to prosecute people.
The “technicality” of statute of limitations prevents prosecution of a known and provable crime beyond a measurable time. It is a matter of legal defense that is part & parcel of the way that law works in those countries where English law is foundational. It is one way that prosecutors are restrained from acting concerning matters attenuated by time and the substantial - or insubstantial - nature of the violation.
When I was working as an IRS lawyer, the policy of the Chief Counsel’s office was - and I am certain remains - that when the defense of the statute of limitations would arguably prevail in a case, the attorney for the government was obliged to advise the taxpayer’s lawyer of that possibility if that representative had not raised it. And in fact, where the facts were clear that the state of limitations would apply, we were obliged to concede the issue involved even if the taxpayer had not raised that defense.
This is a principled position of the same kind that requires all lawyers to advise the court when there are cases that cut against the argument being presented by the advocate whose argument it harms.
Does anyone believe for a minute that Bragg’s office will be doing this kind of thing? Not a chance - Bragg is out to get Trump, makes no secret of that fact, and has conjured up an indictment solely for that purpose - not to enforce the law, but to put Trump in jail by any means available. And that includes maneuvering around the “technicality” of the statute of limitations.
This is contemptible. Trump is contemptible in many ways, but the government should not be.
I agree with your overall analysis on statutes of limitations. My understanding, though, is that New York law is very favorable for prosecutors on tolling, and the statute doesn’t run while the defendant is out of the state.
I don’t know anything about how that sort of tolling works, as applied, in NY. Naturally, I can think of a couple of ways it might, and no doubt there are ones that haven’t occurred to me. What I’ve seen written about it seems to regard that issue as dicey for the prosecution, without actually delving into the nitty gritty.
How do you write post after post about how the statute of limitations demonstrates how Bragg is solely "out to get Trump" and then admit that you don't know anything about tolling under New York law?
Regarding the statute of limitations (SOL), it may not prevent the prosecution entirely, but it does raise questions about the prosecutors' motives. It's unusual to charge a Class E felony (the lowest level of felony) more than five years after the fact. That prosecutors are relying on tolling doctrines typically used only for serious crimes implies that they are treating Trump differently.
The strongest basis for tolling comes from a New York state statute that excludes for SOL purposes "Any period following the commission of the offense during which (i) the defendant was continuously outside this state or (ii) the whereabouts of the defendant were continuously unknown and continuously unascertainable by the exercise of reasonable diligence." Trump's location was generally well known, so the focus is on (i), periods when he was absent from New York. However, "continuous" means prosecutors can't stack separate time periods. They can only claim a single "continuous" period when he was outside New York.
While I haven't found a complete list of Trump's visits, he seems to have visited New York at least annually while president, including every September to speak to the UN. In 2020, there was no UN visit but he came in August for private events. After leaving office, he spoke at his golf club in Westchester on August 5, 2021. Importantly, this Fox News article has a photo caption that seems to imply Trump was in New York again on August 10, 2022, but I haven't been able to verify that elsewhere: https://www.foxnews.com/politics/trump-travel-new-york-city-monday-tuesday-arraignment-return-florida-hours-later
That photo caption is relevant because, if Trump's last visit to New York was August 5, 2021, then prosecutors would get ~602 days of tolling. Since the first charge is February 14, 2017, they only need 409 days. However, if Trump were here in August 10, 2022, as Fox News says, then Trump's longest continuous period out of state is just a few days more than a year, which would mean the tolling statute is not enough to save all of the charges.
The Cuomo executive orders are prosecutors' fallback. These could provide an additional 228 days of tolling, enough to close the gap. But it's unclear if courts would apply them here, as the First Department and Court of Appeals haven't addressed the orders so far as I can tell (the Second Department has applied them in civil cases). Cuomo's authority to toll criminal SOL is questionable. California, for example, only tolled civil SOL during COVID, and I think it's potentially problematic to allow the governor to unilaterally toll SOL in criminal cases given that the state itself is a party in criminal cases. There could also be constitutional challenges in applying Cuomo's orders to criminal cases. While the Supreme Court in Stogner v. California expressly did not disturb lower court precedent allowing unexpired SOLs to be extended by state legislatures, it arguably left the issue open for debate at the Supreme Court level. (That probably won't be the deciding factor here, but potential routes Trump could get the case overturned by the Supreme Court are worth keeping in mind.)
Bottom line, if the caption on the Fox News photo is right, then some charges could hang in the balance based on whether courts accept the Cuomo orders as tolling criminal SOL. If not, several counts would be dismissed. I think it ought to be an embarrassment for such a high-profile case to have a bunch of claims thrown out as untimely. The fact that's a live issue underscores how precarious this indictment is.
I think I have to come down on the "travesty" side. Criminal laws, and regulations with criminal penalties, are so numerous (and potentially conflicting), that it is impossible for a well-meaning person to be confident he is not breaking some law.
In the offenses alleged, I believe the purpose of the law is to protect the owners (shareholders) of a business from theft or deception by employees. Also, potentially, to ensure the integrity of records for the tax authorities to inspect. If Trump falsified the records, he didn't need to deceive himself. If the issue is taxes, the offense doesn't fit the indictment, and Trump has (I believe) a (potentially) legitimate defense: he is subject to lawsuits, threats of lawsuits, blackmail, and other threats all the time. Sometime he fights such actions, sometimes he ignores them, and sometimes he gives money to solve the issue. Such things are a cost of doing business, and a legitimate expense. Even a legitimate "legal" expense.
The fact that Michael Cohen pleaded guilty to a violation of campaign finance law has no weight for me. It does not establish that anything Trump or Cohen did violated any law. It only demonstrates that the prosecutor was able to exert enough pressure on Cohen, and offer sufficient incentive, to get him to plead rather than fight. As the legal case was presented, the payments to Daniels would have been considered a contribution to Trump's campaign if the purpose was to protect his political prospects, but would have been legal if the purpose was to protect Trump or his family from negative publicity. If this is true, then our campaign finance laws are too intricate. It is bad policy to give lawyers and law enforcement such a large role in political campaigns, in pursuit of the "appearance of corruption". Laws of this sort can't prevent corruption, or the appearance of corruption. They can offer pitfalls for people with insufficient legal expertise to fall into. This is bad policy. Not unconstitutional, but bad policy.
I'm not a Trump supporter, and I never voted for him. If the things he did with respect to Georgia are as reported, they should be against the law if they're not. If a case can be made, it should be. But this case seems extremely weak, and not in the interest of justice.
I think this is a relatively strong case and am pleased to see it but also respect due process - so if he's found not guilty, that should be respected, same as if he's found guilty. Unlike Trump and his supporters and apologists, most of us in the legal community respect the rule of law and due process, and I don't understand people who follow Trump off the edge of the earth with "we'll respect the rule of law so long as the outcome is x" - whether referring to an election or a criminal trial - as that's simply not respecting the rule of law nor is it pro-democracy. I just don't understand how so much of the US population has come to this point, and suspect it comes down to Fox. Hopefully Dominion will win its lawsuit and others will follow. Fox is the lynchpin to what arguably amounts to mass psychosis: believing in a reality that is not consistent with demonstrable facts. Many psychiatrists and others in the mental health community have analyzed Trump's mental health issues, and how Trump is a very sick man - but then again a lot of cult leaders are mentally ill. So I do wonder if Trump's intent can be proven given his mental illness; he sometimes seems to believe his delusions.
This appears to me to be a Rube Goldberg machine of an indictment, in a politically motivated case which never would have been filed against anyone not named Trump. It has been brought in a venue where the jury pool is heavily anti-Trump, and consequently a guilty verdict will only incense his supporters. A not guilty verdict will be, if anything, worse for everyone (except, of course, Trump, who will crow from the mainmast like Peter Pan).
The best thing for the country (and the rule of law) would be for the judge to grant the inevitable motion to dismiss. Ironically, that’s the worst thing that could happen to Trump. It would reduce this whole thing to a parochial tempest in a teapot. Maybe that’s why he seems to be doing his best to antagonize the judge.
Isn't the rule of law applicable to everyone? I think if Biden had behaved this way, the same people who are freaking out about this prosecution would be cheering it. Trump is getting special treatment (not worse treatment) because of his name - not by Bragg or the grand jury that indicted him but by millions of supposedly patriotic Americans who don't care how many crimes Trump commits or how hard he tries to overthrow our democracy and government. Facts are pesky things. He tried to overthrow the government and have legislators killed. Surprised he hasn't been dinged for that little transgression. He also broke federal and state laws over and over. He's being subjected to proceedings for one of the many. Let's let due process take its course. That's how the USA legal system still runs, at least so long as Trump doesn't get his way.
The rule of law encompasses the exercise of judgement. The legislature of New York enacts statutes of limitations in order to put boundaries on the exercise of judgment by a prosecutor. This prosecutor has deliberately violated that boundary through a bit of legal sophistry that the judge should immediately strike down in order to prevent him from evading the policy that the legislature has established.
It has been clear from the beginning of Bragg’s tenure that he was out to get Trump any way he could, and from what I’ve read he campaigned on that promise - and now he’s keeping it.
As for all the other things you’ve thrown out, if he’s actually guilty of things in the fashion that you’ve framed them, then he should be prosecuted for those crimes. But you know, we have mechanisms built into the law to deal with those sorts of things, and so far, they have not delivered the goods you think are warranted. That fact is itself part of the rule of law.
Having had some experience representing the IRS in recommending criminal tax cases for prosecution to the Department of Justice, I feel professionally affronted by this indictment. It is not anything I recognize as law - it is mere pettifogging.
The use of the law as a political tool, as is being done by Bragg, is contemptible, and should be condemned by every lawyer. It is Bragg who is undermining the rule of law.
Bragg didn't indict Trump - a grand jury of ordinary citizens did. I know people who have been stuck on grand jury duty for a month recently (not on this case), they are doing a civic duty. Bragg isn't acting solo, he's acting within the bounds of the law. Not sure what statute of limitations you're referring to but this case is well within the SOLs, curious why you think otherwise. Let's let the process play out - if Trump is found not guilty, then that's that. If he's found guilty, same thing. Let's have a little perspective here; Trump has plenty of other prosecutions coming down the pike, he's in lots of litigations including for libel and sexual assault. The guy's a complete creep, crook and alleged rapist; the law was going to catch up with him eventually. Let's not pretend Trump is anything other than what he is: a crook and a sociopath. Whether or not he's found guilty in this or the next criminal trial. I just worry that some of the commentators are clutching pearls as if this is a perversion of the legal system to indict Trump for his criminal behavior: no, it's a perversion of the legal system to cut him a break because he won national office and then tried to steal a second term by staging a violent coup. It's beyond me that all these "rule of law" types suddenly are whistling a very different tune. Aka "law and order"... except for the person they somehow think is qualified to serve in elective office. I personally don't care whether Trump's in jail or not; he just should be barred from running for or holding elective office. For reasons obvious to most of the globe, perhaps just not to one political party in one country, which has gone so off the rails that it would no longer nominate its 2008 (or 2012) nominee as of 2020 or thereafter.
As Harmon noted, the grand jury is often criticized with the saying that they would indict a ham sandwich. But even if you think the grand jury plays an important gatekeeping role, the fact of indictment doesn't signal any strength of this particular case. The issues with this case are legal deficiencies, not debates over the facts. The grand jury isn't meant to weed out bad legal arguments, so the fact of indictment isn't particularly illuminating here.
In my opinion, this case isn't legally viable, but even if appellate courts ultimately uphold it, they'll need to stretch the law in several ways to do so. This means that bringing the case is, at best, a significant gamble—and it gives Trump reason to argue he’s being treated differently than others would be, since the normal rule is that criminal indictments should only be brought when the charges are clear-cut.
I agree that there could be more damning charges against Trump by other prosecutors. But that cuts against bringing *this* case, not in favor. Bringing this weak case only helps Trump's "witch hunt" narrative and causes a backlash, rallying even Trump-skeptical Republicans to his side. The goal of holding Trump accountable would have been better served if Bragg held back and allowed prosecutors with stronger cases to proceed.
On the grand jury indictment, it’s a ham sandwich.
On the statute of limitations I refer you to item 1 in John’s comment back at the beginning of this comments section.
On the rest, I really don’t care if Trump’s a good guy or a bad guy. I care that the law is being used to target a man for political reasons, and being contorted to that end. Bragg is engaged in cutting down the law to get to the devil. In connection with that, I refer you to A Man for All Seasons:
Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?”
William Roper: “Yes, I'd cut down every law in England to do that!”
Sir Thomas More: “Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!”
As for the other possible prosecutions, we’ll see when something definitive happens and we have some basis on which to judge those matters. We’ve seen a lot of media smoke, but the existence of any actual legal fire is not clear.
In any event, what Bragg has done here has made any other prosecutions more difficult, because he has established the game as a political one rather than a legal one, and it will be that much harder for anyone else to escape the same conclusion with any subsequent prosecutions.
When you say "It has been clear from the beginning of Bragg’s tenure that he was out to get Trump any way he could", you demonstrate that you do not have any idea what you're talking about.
It is true that I am relying on the reports in the media and in various blog postings concerning how Bragg campaigned, rather than on my own personal knowledge, but there’s enough reported that I think it’s reasonable to take it as a given.
It's not reasonable. Even if you truly merely were following reports in the media, you'd have known that Alvin Bragg months ago advised his office that he would not proceed with a grand jury, which led to the resignations of a couple of senior prosecutors who disagreed with the decision. And his campaign never ran on "getting Trump", overtly or impliedly.
Look, let's be candid here: is there anything wrong with being out to get Trump any way possible? While I don't want to be (or be perceived to be) overly partisan, the "conservative" /"right"-wing side of our government (these days, radical extremist anti-democracy agitators, also being candid; don't like seeing "alt-right" or "conservative" when the correct description is a bit more accurate: right-wing extremist) is out to get people that are left of them any way they can, and is just fine with lying (including about Trump's competence and intentions), cheating (gerrymandering) and stealing (votes and elections) any way they can. They are the moral majority until, oops, Trump grabs em by the p**** and has multiple divorces and bankruptcies and proven lies and, oh, well, he tells it like it is, we're praying for him. How phony can they be. So yeah, let's also own that Trump needs to be stopped or our democracy is on life support. He's Hitler in Weimar Germany and some of us don't like what followed in the 1930's in Germany. It would be great if he was stopped. Legally yes but let's not pretend that more than half the country doesn't want him gone. Period.
I'd prefer to hear why you think it's a weak case. From what I've read, Bragg has clear evidence that the crimes were committed. Only question is whether intent can be proven, since this defendant is a bit crazy and convinces himself that a blue sky is black, so with this delusional defendant, proving criminal intent might be trickier than with most others.
We can do this one by one. What’s your response to John @8:07,above, his point 2. It seems to me to be dispositive proof that the reference to “another crime” in section 175.10 is to a crime under state law.
To clarify, my point #2 alone isn't dispositive. It just means that the "intent to commit another crime" requires prosecutors to point to another New York State crime; they can't point directly to federal election law.
This isn't the end of the analysis, however, as there are two New York State crimes they seem to be pointing to. But neither of the state crimes appears to work. Criminal tax fraud (NY Tax Law §§ 1801-1809) is very far-fetched for the reasons in point #3 above. And NY Election Law § 17-152 doesn't seem to work either, for the reasons in points #4 and #5.
Of course I agree with the more fundamental point that it's a weak case overall.
Besides the legal points raised by John, I think there are a lot factual issues here too. What was Trump’s state of mind? Was this really done for a campaign purpose, or a personal purpose? What would have been the accurate, non-falsified bookkeeping entry (raised by another commenter)? I think factual problems are what led to the acquittal of John Edwards when he was charged under a similar theory.
Some of the factual issues, including the need to prove intent, are discussed in this Reuters article. The piece also notes how much of the case turns on Michael Cohen, who will surely be cross-examined aggressively by Trump's lawyers.
I think the more attention we give Trump, the worse it is for our country. This just makes his supporters crazier, or sorry, more passionate. What good do people expect to come from this?
Trump in jail and/or barred from elective office = a good thing. He just needs to crawl back under his rock and stay there. He's dangerous. I agree, he doesn't deserve our attention. but that isn't a reason to ignore criminal behavior. Any normal person would slink away but he will run again, lying the whole time about anything and everything. that's why this is kind of inevitable. horrible but inevitable.
I definitely agree that Trump being barred from office would be beneficial but I doubt this case will actually do that. I've heard legal-scholar-people say that the case against him is flimsy. I'm worried that if a case is brought against him and fails, his enraged supporters will view it as a blatant attempt to silence him (cause it kinda is) and go berserk.
As for him crawling under a rock, I don't think losing this case would do that to him. He didn't disappear after he lost the election. He and his fans just got louder. Obviously, I don't want to not prosecute criminals because I think they'll whine about it, but it was my understanding that this kind of campaign-budget-fraud is done by politicians all the time, and they are rarely prosecuted for it. If anything, they get a fine.
I agree that I can't stand how much attention Trump is receiving. We can't deny that a former President being indicted is unprecedented and the investigations should be receiving press coverage (even though I can't stand the guy). I am avoiding watching or listening to Trump himself speak.
Yeah, but if we didn't indict him, we wouldn't have to hear about him. American life expectancy is 77 and he's 76. If we're patient, Trump will go away on his own.
If there's a crime that's been committed, he shouldn't be able to skate. If he goes away, I would prefer he die of natural causes and not be shot or something as that would make him a martyr. I read his father died when he was 93.
I agree. My only worry is that he didn't commit a crime, or at least, not the kind people are normally sent to jail for. I heard Hilary Clinton also misreported campaign funds and then got off on a fine.
if he didn't commit a crime, or if the prosecution can't prove he committed one, then a jury will find him not guilty. which is how things are supposed to work. and Clinton's misreporting campaign funds wasn't necessarily a crime, or she would have been prosecuted, one would think. and she was indicted, prosecuted and jailed if you believe the conspiracy theorists, or at least they have been saying that was going to happen since at least 2017. Too bad she's not a criminal and didn't commit crimes, outside of right-wing delusions. but if she did, sure, go after her. but she's not a sociopath who wanted to overthrow the government when she lost an election. luckily only one person is mentally ill enough to try that one. oh and, go figure, he's being prosecuted. hopefully for treason, eventually, and not just fraud.
That's for a jury for decide. His charges are not uncommon. The only thing that is debatable, in my opinion, are the underlying crimes that bumped up the charges from a misdemeanor to a felony.
This is a terrible case. Listen to the Advisory Opinions episode. Isgur and French are not Trump fans, but they agree that the indictment is laughably weak.
I agree with most of the criticisms of the case and write only to make one additional point. Brag’s claim is that by accounting for the payments to Stormy (which were made through Cohen) as “legal expense,” Trump’s intent was to conceal the commission of a crime. My question is, how was the payment supposed to be accounted for? Payments under NDAs are frequently accounted for as “legal expense.” It’s not like there’s some special accounting classification for”blackmail/hush-money payments.” So what’s the answer? What was the correct, accurate, and not misleading classification for this payment? Bragg doesn’t say and none of his defenders do, either.
Cohen went to jail for these payments, and he was Trump's agent. Do you think Cohen was guilty and Trump wasn't? These were Trump's payments, not Cohen's. In what world did Trump not have a criminal intent here, when somehow his lawyer did? Of course he committed crimes including here. No one is above the law. You're trying to figure out which form of killing someone on Fifth Avenue was ok for Trump to commit.
You didn’t even attempt to answer my question, but I’ll answer yours. Cohen pleaded guilty in a plea bargain. He pleaded to a whole host of more serious felonies and at the last minute, the prosecution threw the campaign finance charge in and since it didn’t hurt him and might have gotten him some goodwill with the prosecution, Cohen said yes. The court was not asked to determine and did not determine if the prosecutor’s theory of the case made any sense. Thus,that plea has zero precedential effect.
I’d also be happy to explain in detail why the prosecutor’s theory of the case, which flew in the face of long standing practice by the Federal Election Commission, was all wrong. You just have to ask me to do so.
I didn't try to answer your question only because in the past when I've taken the time to carefully and respectfully respond, especially on Facebook (RIP FB, at least for me), the person who originally asked would then basically call me a name and say something mindless and troll-like so I realized that I had wasted my time responding in good faith. Nothing personal. Just a longtime experience of people asking not really wanting to engage thoughtfully and respectfully. I love a good respectful debate. Don't like mindless back and forth with neither side listening. So with all that as preface, yes I'd be interested in why you think the prosecutor's theory of the case is wrong. But I'm unlikely to be swayed at this point. I want to see this play out and learn more over time. This whole thing doesn't go to trial for many months so we all have time to twiddle our thumbs and see how this plays out. My own guess /hope is that 2-3 other jurisdictions indict Trump next and he's convicted there before in NYC, so we shouldn't rush to judgment since hopefully Trump will in fact see jail at some point. I realize his supporters are likely to stoop to violence and that's the markings of a breakdown of democracy. Not the prosecution - the response to it. I strongly believe in due process and the rule of law - not selectively or unfairly applied but equally applied. Trump doesn't believe in any of that. He respects the rule of law so long as it doesn't apply to him. For that alone, we have a problem in this country, when he's largely a cult leader at this point. And he's willing to walk his supporters to the edge of the pier - and then stand by while they all jump off of the pier while he stays perfectly safe.
I would not be surprised if he were convicted in New York, what juror is going to want to go home and tell family and friends the voted to acquit. I think it will be overturned on appeal or that problematic issues with the charges including but not limited too statute of limitation will derail the case beforehand. David you should include more editorial content from other sources that are not reflexively anti Trump such as the WSJ.
A lot of the sources mentioned above are against this prosecution—the WaPo staff editorial, the Shugerman op-ed, and the Advisory Opinions and Serious Trouble podcasts. But if you have links to other sources that you'd like to share, please post them here in the comments. Thanks!
I admit to obsessively following all of the investigations and listening to the legal commentators, and agree with you, David, that the endless amount of coverage these investigations receive means there's nothing more to add.
I can't stand Trump and am happy to see him being indicted. As others have pointed out, this case may not be the best case to bring, but I don't think it's going to derail other concurrent investigations. As with any defendant, he's entitled to legal representation and the presumption of innocence. For this particular indictment, I expect that the legal process will play itself out albeit slowly. If/when it goes to trial, it will be up to the jury to decide, and everyone should accept whatever the jury decides (assuming no post-trial motions). When all is said and done, other investigations/charges will overshadow this case.
After listening to Advisory Opinions I was struck by the very positive review the indictment and statement of facts received on Strict Scrutiny. I’ve never listened there before; is it more political than legal analysis, or maybe different this time because the Pod save America guys were on, as well?
They do tend to be more political than, say, Advisory Opinions, which generally gets more granular on legal doctrine. But I also think, as you suggest, that this episode was more political than usual.
I cannot say whether this indictment is likely to result in conviction or not. And the political implications are also difficult to discern, especially given the demonstrated ability of the Trump cohort to spin even very damning information (e.g. the Mueller report). Yet, it seems to me that the indictment will have one other effect that has not yet been noted here: It will change the legal landscape in intangible ways, particularly affecting the other potential prosecutions against the same defendant. It seems to me that the "first" indictment has overcome a significant barrier that eases subsequent indictments by at least two other prosecutors.
Posting on behalf of a reader, Nikki, who emailed me:
"Legally speaking, it seems that there is solid basis to indict the president for the conduct here. But an important question in my mind is, is this a good idea? Do the prosecutors really have an iron-clad, open and shut case against 45? Can every element of every charged crime be proved, beyond and to the exclusion of EVERY REASONABLE DOUBT? Based on what has been shown so far, I fear that the answer is no. I'm no legal expert, but it seems that the prosecutors may have trouble proving the intent elements of these crimes. When bringing charges against a former president, it is critical that the prosecutors have a 100% solid case. If 45 is acquitted of the crimes, I truly worry about what will come next. This whole exercise will backfire, majorly.
From a political point of view only, bringing these charges also sounds like an extremely risky bet, given his current campaign and his ability to whip up his supporters into action that can turn violent. Arguably, this fact bolsters the need to bring a solid, iron-clad case to trial. I fear that this is not the case here.
I look forward to what comes next in this saga."
I agree. The Trump indictment presents an exceedingly precarious case, because there are multiple critical legal vulnerabilities, any one of which could wipe away the case. The case is a bit like an unstable tower of Jenga blocks, where one speculative, untested legal theory is stacked on top of another, any one of which could cause the whole thing to come crashing down. In my view, indictments should only be brought when there is a clear-cut, well-grounded case, particularly when it involves a former president.
1. Statute of Limitations (SOL): The 5-year SOL could prove fatal, as the relevant conduct occurred in 2016 and 2017. The prosecution appears to rely on a combination of Governor Cuomo's COVID-era emergency orders and a tolling statute that applies when the defendant is "continuously" outside the state. However, the applicability of the former to criminal proceedings is uncertain, and the latter may not apply given Trump's frequent visits to New York during and after his presidency. Losing on SOL arguments could obliterate the case, and I frankly doubt the DA would ordinarily bring an old case like this relying on tolling provisions.
2. Intent to Commit Another Crime: It seems crystal clear that federal crimes do *not* qualify. Unlike the news media, I don’t see a serious question about this. Penal Law sect. 10.00 defines "crime" as an "offense" for which imprisonment is “provided by any law of this state.” So federal crimes don’t count. Thus, the prosecution's theories hinge on state tax fraud and a misdemeanor under Election Law 17-152, both of which appear dubious.
3. State Tax Fraud Theory: The statement of facts lacks evidence suggesting that the payments were deducted on the Trump Organization's return or that the deductions altered the tax liability. Additionally, there is no clear indication that Trump was aware of the tax implications of his conduct. Nor is there any suggestion that the tax savings were material in the context of the Trump organization's *overall* return, which is the materiality analysis you need for tax fraud. Furthermore, Trump reportedly paid Cohen double the amount paid to Ms. Daniels, to cover the taxes Cohen was paying (apparently at a ~50% rate) on the money. Individual income tax rates are higher than corporate rates, so having Cohen pay the tax rather than Trump org means that tax authorities got MORE money than they were actually entitled to, not less (and Cohen and Trump Org were both in NY, so presumably the same state got the money). While it worked for Al Capone, I don’t think the tax fraud theory is legally viable here.
4. Election Law 17-152 Theory: The statute prohibits promotion of a candidate "by unlawful means." But I don’t think that this statute works either: even assuming that paying the mistress not to damage his candidacy is “promot[ion],” the “means” used to promote Trump (paying hush money) were perfectly lawful in and of themselves. The unlawful conduct was failure to disclose the expenditure, but that is a separate act, analytically distinct from any promotion. So I don’t think the text really fits here. (And even setting that aside, there’s field preemption under federal election law so it’s not clear that a state statute can be applied at all to a federal candidate like Trump.)
5. Constitutional Issue: Buckley v. Valeo says candidates have a right to spend as much of their own money as they wish promoting their candidacy. Both that case and Citizens United uphold disclosure requirements in general, but Citizens United emphasizes that even disclosure requirements should be given “exacting scrutiny” when someone brings an as-applied challenges—and such challenges should be upheld if the disclosure rule deters speech. Buckley v. Valeo implicitly recognizes you can spend money to influence speech of others, because that’s what you’re doing when you buy an ad on a network or newspaper. If you extend that principle and allow it to embrace paying someone for an NDA (or to refrain from negative speech about you), then Trump could have a strong as-applied challenge. In that case, the federal disclosure requirement would interfere with his right to spend his own money supporting his campaign as he sees fit, because the whole point of his payment to Ms. Daniels was to keep the issue private. If he then has to disclose it to the feds, the whole thing is pointless; the disclosure requirement as applied to this unusual fact pattern deprives him of his right to spend his money as he likes on his candidacy. (Admittedly, I view that challenge as more speculative than the preceding issues but I note it because it’s a federal issue that SCOTUS could review. If SCOTUS suspects that the state courts are running amok, they might be willing to entertain federal issues that are a bit more speculative.)
Overall, the indictment is fraught with legal uncertainties, making it a questionable choice for prosecution. A case against a former president should be unassailable, not built on a shaky foundation of speculative and novel theories.
Thank you for this extremely detailed and thoughtful analysis! It strikes me as very persuasive.
"You come at the king, you best not miss."
If we're going to be prosecuting former presidents, no matter how odious they may be, it's super important the case be ironclad and the charges not be tickytack or abstruse. This doesn't clearly seem to be either. Misrecordings in internal bookkeeping that do not affect any external parties are not something you go after people for normally, least of all when they're being bootstrapped into felonies by an unspecified separate crime. And there are genuinely murky questions about what this underlying crime is -- and whether it might be a state crime preempted by federal law or a federal crime the feds (both under Trump and under Biden) actively declined to charge (perhaps because a previous presidential candidate skated, in a somewhat similar case).
If you're going to prosecute an unfortunately not-at-all marginal political candidate, it's not a time for legally innovative challenges. Now is not a time to make your public pronouncements vague, leaving out key points that are necessary to fully evaluate the charges. The entire country is judging whether these charges are legitimate and justifiable, based on what you do and say. And in these demented times, a marginal challenge is likely to *invigorate* his cause, which is not what any honest person should want now.
But a risky marginal challenge is what we seem to have here now. Perhaps because Democrats *want* to run against this guy, even. What could possibly go wrong?
Bragg is treating this like a normal case where you can swing for the fences, where if you miss it doesn't really matter because it's just nobodies who unjustly suffer. But this is not a normal case. This is not a normal plaintiff. This is the most dangerous criminal defendant in recent history, possibly much longer. You do not play games that increase the political prospects of a racist bigot who blithely roused a mob intent on political violence against *not even* his opponents but against the very structure of government and sat back and watched them with rapt attention rather than stop them.
But instead we have one morally small man taking on a morally much smaller man. It's a pity they can't both lose.
(And all this is before even counting that the underlying matter is -- deliberately putting it exactly as crudely as it is -- a man cheating on his wife by banging porn stars while his wife is at home with their months-old son, then trying to pay one off to keep her quiet. That *alone* should have been enough for everyone to reject him and to not act to improve his political chances. But in this dementedly partisan time, to say so is to invite accusations that you're aligned with the party that opposes him, or to rejoice that you're making your opponents do self-destructive things. Nobody actually cares about this country any more.)
I would have at least slightly more sympathy for this indictment if this were the only option to get him. (Tho I would still think it a stretch.) But it's not!
He's on clear audio recording hectoring Georgia election officials for an hour to find him a number of votes that's exactly what's needed to put him over the top, which plainly disconnects it from any particular narrative he might wrongly believe (whether comprehending its falsity or not) of outcome-changing vote-counting mishaps.
His mishandling of classified documents would have gotten any of the little people in serious trouble. (And he might only escape that because apparently all the non-little people are careless, in a way that gives him cover. Tho I would not put it past him to have actively withheld documents in a fashion that is not true of Biden, Pence, or any of the other people just making honest, but still not acceptable, mistakes -- and that may be enough distinction to enable DOJ to target him but not them. I think I've seen rumor of this at some point, but the stories all blend together enough I'm not certain.)
Heck, even the argument that he met the Brandenburg standard for incitement on January 6 is both a plainly more serious matter than this, and -- thanks largely to Cassidy Hutchinson -- more legally provable, tho IMO maybe too risky to take on. (This would have been best dealt with had Republicans impeached and convicted him -- impeachable conduct does not have to violate laws, it can be misuse or abuse of lawful political authority, lawfully exercised -- when they had the chance...but they do not understand that Democrats will never singlehandedly rescue them from the disaster they have created. They have to step up if they really want it to happen.)
But Bragg may not care, because he only has control over this one, only this one can boost his visibility, and only by his action can he be guaranteed anything actually does move forward. Bleh.
I think this case is a distraction from the prosecution that Fani Willis is working on for election interference in Georgia. That seems like a straightforward case that can and should be prosecuted. I wonder why she didn't file already—it seemed from news reports that that prosecution was ready to go.
I agree. My current view—subject to change based on additional information and reflection, perhaps in response to comments posted here—is best captured by the Washington Post staff editorial:
"Other [Trump] investigations underway include Justice Department examinations of the Jan. 6, 2021, insurrection and classified documents discovered at Mar-a-Lago, where the possibility of obstruction of justice is particularly grave. These are straightforward cases compared with the one proceeding in Manhattan. A failed prosecution over the hush-money payment could put them all in jeopardy, as well as provide Mr. Trump ammunition for his accusations of 'witch hunt.'"
I don't understand lawyers who complain about this case "going first", viewing it in a vacuum. My Magic 8 Ball tells me that all signs point to an indictment in Georgia and a federal indictment on the Mar-a-Lago documents, J6, or both. If you know anything about the courts in New York State, you know that, if either of the other indictments is handed down soon, the likelihood that the New York case would get tried first is slim, and that's not considering all of the motions and delay tactics Trump pulls in every case -- New York state court seems more likely to allow such efforts than federal court. It also doesn't consider the likelihood that the DOJ asks Alvin Bragg to stand down and let the federal case go first, a request to which one would assume Bragg would acquiesce.
I think those of us who wished that another case had gone first are less worried about any kind of scheduling conflict or prejudice to the other cases and more worried about the narrative and the optics. This case, since it's weaker than the others, facilitates Trump grandstanding about "witch hunts," allowing him to set up and reinforce his persecution narrative, into which he will then slot the subsequent cases—even though those cases are much stronger and most definitely not "witch hunts."
In a nutshell, we wish the Trump prosecutors could have put their "best foot forward," and the New York case is most definitely not that. Yes, we realize these prosecutors act independently—but Bragg is obviously aware of the news, so he knew at the time he sought the indictment that there were other cases in the pipeline that would be so much stronger.
Alvin Bragg had the prosecutorial discretion to not bring this case, clearing the runway for the stronger prosecutions. And discretion would have been the better part of valor here.
Thanks for responding. The only things I'd add are (1) I think this concern about "optics" goes away quickly after the other case(s) are brought, and (2) it's a "no win" with anything Trump. If Bragg overtly cooperated with the other cases and held back until another case went first, it would be one great conspiracy against Trump. And if he didn't overtly cooperate but it appeared that he held his case back so someone else could go first, they still would claim that it's all some grand conspiracy to "get Trump".
If everyone held back on prosecuting obvious crimes, then we come to another situation where Trump gets away with it, again, on a technicality. I keep coming back to: his lawyer served time for the same thing, so it's unclear why we are debating whether to go after Trump when his lawyer already served time for the same thing, essentially. I'm not sure how the principal (lawyer) goes to jail while the agent doesn't even get subjected to proceedings. If Trump's found not guilty (while Cohen served time), so be it. But I don't understand the holding back when he clearly committed crimes. it's just a matter of degree, and plenty of people are prosecuted for similar behavior. I think he's getting special treatment because of his name and unfortunate former title (as he was unqualified to be POTUS, and is a sociopath), that we're even debating this.
I agree with the Advisory Opinions hosts that I wouldn't put too much stock in the Cohen plea. It was a plea, so the facts and the law were never tested by any motion practice or jury trial. As defense lawyers will tell you, defendants plead all the time to charges that they had a chance of defeating, for all sorts of reasons.
But I agree with your other point that we should let the process play out. I don't support efforts to interfere with this prosecution by "investigating" Bragg (and certainly not by violence or threats or violence). Let the process run its course, and if Trump prevails, on the law or the facts or both, so be it.
What you regard as a technicality is entirely proper when used by people to defend themselves. What is not proper is when the government evades them to prosecute people.
The “technicality” of statute of limitations prevents prosecution of a known and provable crime beyond a measurable time. It is a matter of legal defense that is part & parcel of the way that law works in those countries where English law is foundational. It is one way that prosecutors are restrained from acting concerning matters attenuated by time and the substantial - or insubstantial - nature of the violation.
When I was working as an IRS lawyer, the policy of the Chief Counsel’s office was - and I am certain remains - that when the defense of the statute of limitations would arguably prevail in a case, the attorney for the government was obliged to advise the taxpayer’s lawyer of that possibility if that representative had not raised it. And in fact, where the facts were clear that the state of limitations would apply, we were obliged to concede the issue involved even if the taxpayer had not raised that defense.
This is a principled position of the same kind that requires all lawyers to advise the court when there are cases that cut against the argument being presented by the advocate whose argument it harms.
Does anyone believe for a minute that Bragg’s office will be doing this kind of thing? Not a chance - Bragg is out to get Trump, makes no secret of that fact, and has conjured up an indictment solely for that purpose - not to enforce the law, but to put Trump in jail by any means available. And that includes maneuvering around the “technicality” of the statute of limitations.
This is contemptible. Trump is contemptible in many ways, but the government should not be.
I agree with your overall analysis on statutes of limitations. My understanding, though, is that New York law is very favorable for prosecutors on tolling, and the statute doesn’t run while the defendant is out of the state.
I don’t know anything about how that sort of tolling works, as applied, in NY. Naturally, I can think of a couple of ways it might, and no doubt there are ones that haven’t occurred to me. What I’ve seen written about it seems to regard that issue as dicey for the prosecution, without actually delving into the nitty gritty.
How do you write post after post about how the statute of limitations demonstrates how Bragg is solely "out to get Trump" and then admit that you don't know anything about tolling under New York law?
Regarding the statute of limitations (SOL), it may not prevent the prosecution entirely, but it does raise questions about the prosecutors' motives. It's unusual to charge a Class E felony (the lowest level of felony) more than five years after the fact. That prosecutors are relying on tolling doctrines typically used only for serious crimes implies that they are treating Trump differently.
The strongest basis for tolling comes from a New York state statute that excludes for SOL purposes "Any period following the commission of the offense during which (i) the defendant was continuously outside this state or (ii) the whereabouts of the defendant were continuously unknown and continuously unascertainable by the exercise of reasonable diligence." Trump's location was generally well known, so the focus is on (i), periods when he was absent from New York. However, "continuous" means prosecutors can't stack separate time periods. They can only claim a single "continuous" period when he was outside New York.
While I haven't found a complete list of Trump's visits, he seems to have visited New York at least annually while president, including every September to speak to the UN. In 2020, there was no UN visit but he came in August for private events. After leaving office, he spoke at his golf club in Westchester on August 5, 2021. Importantly, this Fox News article has a photo caption that seems to imply Trump was in New York again on August 10, 2022, but I haven't been able to verify that elsewhere: https://www.foxnews.com/politics/trump-travel-new-york-city-monday-tuesday-arraignment-return-florida-hours-later
That photo caption is relevant because, if Trump's last visit to New York was August 5, 2021, then prosecutors would get ~602 days of tolling. Since the first charge is February 14, 2017, they only need 409 days. However, if Trump were here in August 10, 2022, as Fox News says, then Trump's longest continuous period out of state is just a few days more than a year, which would mean the tolling statute is not enough to save all of the charges.
The Cuomo executive orders are prosecutors' fallback. These could provide an additional 228 days of tolling, enough to close the gap. But it's unclear if courts would apply them here, as the First Department and Court of Appeals haven't addressed the orders so far as I can tell (the Second Department has applied them in civil cases). Cuomo's authority to toll criminal SOL is questionable. California, for example, only tolled civil SOL during COVID, and I think it's potentially problematic to allow the governor to unilaterally toll SOL in criminal cases given that the state itself is a party in criminal cases. There could also be constitutional challenges in applying Cuomo's orders to criminal cases. While the Supreme Court in Stogner v. California expressly did not disturb lower court precedent allowing unexpired SOLs to be extended by state legislatures, it arguably left the issue open for debate at the Supreme Court level. (That probably won't be the deciding factor here, but potential routes Trump could get the case overturned by the Supreme Court are worth keeping in mind.)
Bottom line, if the caption on the Fox News photo is right, then some charges could hang in the balance based on whether courts accept the Cuomo orders as tolling criminal SOL. If not, several counts would be dismissed. I think it ought to be an embarrassment for such a high-profile case to have a bunch of claims thrown out as untimely. The fact that's a live issue underscores how precarious this indictment is.
I think I have to come down on the "travesty" side. Criminal laws, and regulations with criminal penalties, are so numerous (and potentially conflicting), that it is impossible for a well-meaning person to be confident he is not breaking some law.
In the offenses alleged, I believe the purpose of the law is to protect the owners (shareholders) of a business from theft or deception by employees. Also, potentially, to ensure the integrity of records for the tax authorities to inspect. If Trump falsified the records, he didn't need to deceive himself. If the issue is taxes, the offense doesn't fit the indictment, and Trump has (I believe) a (potentially) legitimate defense: he is subject to lawsuits, threats of lawsuits, blackmail, and other threats all the time. Sometime he fights such actions, sometimes he ignores them, and sometimes he gives money to solve the issue. Such things are a cost of doing business, and a legitimate expense. Even a legitimate "legal" expense.
The fact that Michael Cohen pleaded guilty to a violation of campaign finance law has no weight for me. It does not establish that anything Trump or Cohen did violated any law. It only demonstrates that the prosecutor was able to exert enough pressure on Cohen, and offer sufficient incentive, to get him to plead rather than fight. As the legal case was presented, the payments to Daniels would have been considered a contribution to Trump's campaign if the purpose was to protect his political prospects, but would have been legal if the purpose was to protect Trump or his family from negative publicity. If this is true, then our campaign finance laws are too intricate. It is bad policy to give lawyers and law enforcement such a large role in political campaigns, in pursuit of the "appearance of corruption". Laws of this sort can't prevent corruption, or the appearance of corruption. They can offer pitfalls for people with insufficient legal expertise to fall into. This is bad policy. Not unconstitutional, but bad policy.
I'm not a Trump supporter, and I never voted for him. If the things he did with respect to Georgia are as reported, they should be against the law if they're not. If a case can be made, it should be. But this case seems extremely weak, and not in the interest of justice.
This WSJ op-ed by former FEC chair Bradley Smith echoes some of your points:
https://www.wsj.com/articles/trump-indictment-is-a-perversion-of-campaign-finance-law-alvin-bragg-hush-money-business-records-daniels-bdb5942c
Some very smart people are happy to see this, some very smart people think this is a sham.
Everyone should be accountable and laws should be applied fairly, equally.
I have not seen that happen yet with this case as I understand it.
I have to wonder the motivation, the timing and what may be distracting us from.
I think this is a relatively strong case and am pleased to see it but also respect due process - so if he's found not guilty, that should be respected, same as if he's found guilty. Unlike Trump and his supporters and apologists, most of us in the legal community respect the rule of law and due process, and I don't understand people who follow Trump off the edge of the earth with "we'll respect the rule of law so long as the outcome is x" - whether referring to an election or a criminal trial - as that's simply not respecting the rule of law nor is it pro-democracy. I just don't understand how so much of the US population has come to this point, and suspect it comes down to Fox. Hopefully Dominion will win its lawsuit and others will follow. Fox is the lynchpin to what arguably amounts to mass psychosis: believing in a reality that is not consistent with demonstrable facts. Many psychiatrists and others in the mental health community have analyzed Trump's mental health issues, and how Trump is a very sick man - but then again a lot of cult leaders are mentally ill. So I do wonder if Trump's intent can be proven given his mental illness; he sometimes seems to believe his delusions.
This appears to me to be a Rube Goldberg machine of an indictment, in a politically motivated case which never would have been filed against anyone not named Trump. It has been brought in a venue where the jury pool is heavily anti-Trump, and consequently a guilty verdict will only incense his supporters. A not guilty verdict will be, if anything, worse for everyone (except, of course, Trump, who will crow from the mainmast like Peter Pan).
The best thing for the country (and the rule of law) would be for the judge to grant the inevitable motion to dismiss. Ironically, that’s the worst thing that could happen to Trump. It would reduce this whole thing to a parochial tempest in a teapot. Maybe that’s why he seems to be doing his best to antagonize the judge.
Isn't the rule of law applicable to everyone? I think if Biden had behaved this way, the same people who are freaking out about this prosecution would be cheering it. Trump is getting special treatment (not worse treatment) because of his name - not by Bragg or the grand jury that indicted him but by millions of supposedly patriotic Americans who don't care how many crimes Trump commits or how hard he tries to overthrow our democracy and government. Facts are pesky things. He tried to overthrow the government and have legislators killed. Surprised he hasn't been dinged for that little transgression. He also broke federal and state laws over and over. He's being subjected to proceedings for one of the many. Let's let due process take its course. That's how the USA legal system still runs, at least so long as Trump doesn't get his way.
The rule of law encompasses the exercise of judgement. The legislature of New York enacts statutes of limitations in order to put boundaries on the exercise of judgment by a prosecutor. This prosecutor has deliberately violated that boundary through a bit of legal sophistry that the judge should immediately strike down in order to prevent him from evading the policy that the legislature has established.
It has been clear from the beginning of Bragg’s tenure that he was out to get Trump any way he could, and from what I’ve read he campaigned on that promise - and now he’s keeping it.
As for all the other things you’ve thrown out, if he’s actually guilty of things in the fashion that you’ve framed them, then he should be prosecuted for those crimes. But you know, we have mechanisms built into the law to deal with those sorts of things, and so far, they have not delivered the goods you think are warranted. That fact is itself part of the rule of law.
Having had some experience representing the IRS in recommending criminal tax cases for prosecution to the Department of Justice, I feel professionally affronted by this indictment. It is not anything I recognize as law - it is mere pettifogging.
The use of the law as a political tool, as is being done by Bragg, is contemptible, and should be condemned by every lawyer. It is Bragg who is undermining the rule of law.
Bragg didn't indict Trump - a grand jury of ordinary citizens did. I know people who have been stuck on grand jury duty for a month recently (not on this case), they are doing a civic duty. Bragg isn't acting solo, he's acting within the bounds of the law. Not sure what statute of limitations you're referring to but this case is well within the SOLs, curious why you think otherwise. Let's let the process play out - if Trump is found not guilty, then that's that. If he's found guilty, same thing. Let's have a little perspective here; Trump has plenty of other prosecutions coming down the pike, he's in lots of litigations including for libel and sexual assault. The guy's a complete creep, crook and alleged rapist; the law was going to catch up with him eventually. Let's not pretend Trump is anything other than what he is: a crook and a sociopath. Whether or not he's found guilty in this or the next criminal trial. I just worry that some of the commentators are clutching pearls as if this is a perversion of the legal system to indict Trump for his criminal behavior: no, it's a perversion of the legal system to cut him a break because he won national office and then tried to steal a second term by staging a violent coup. It's beyond me that all these "rule of law" types suddenly are whistling a very different tune. Aka "law and order"... except for the person they somehow think is qualified to serve in elective office. I personally don't care whether Trump's in jail or not; he just should be barred from running for or holding elective office. For reasons obvious to most of the globe, perhaps just not to one political party in one country, which has gone so off the rails that it would no longer nominate its 2008 (or 2012) nominee as of 2020 or thereafter.
As Harmon noted, the grand jury is often criticized with the saying that they would indict a ham sandwich. But even if you think the grand jury plays an important gatekeeping role, the fact of indictment doesn't signal any strength of this particular case. The issues with this case are legal deficiencies, not debates over the facts. The grand jury isn't meant to weed out bad legal arguments, so the fact of indictment isn't particularly illuminating here.
In my opinion, this case isn't legally viable, but even if appellate courts ultimately uphold it, they'll need to stretch the law in several ways to do so. This means that bringing the case is, at best, a significant gamble—and it gives Trump reason to argue he’s being treated differently than others would be, since the normal rule is that criminal indictments should only be brought when the charges are clear-cut.
I agree that there could be more damning charges against Trump by other prosecutors. But that cuts against bringing *this* case, not in favor. Bringing this weak case only helps Trump's "witch hunt" narrative and causes a backlash, rallying even Trump-skeptical Republicans to his side. The goal of holding Trump accountable would have been better served if Bragg held back and allowed prosecutors with stronger cases to proceed.
On the grand jury indictment, it’s a ham sandwich.
On the statute of limitations I refer you to item 1 in John’s comment back at the beginning of this comments section.
On the rest, I really don’t care if Trump’s a good guy or a bad guy. I care that the law is being used to target a man for political reasons, and being contorted to that end. Bragg is engaged in cutting down the law to get to the devil. In connection with that, I refer you to A Man for All Seasons:
Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?”
William Roper: “Yes, I'd cut down every law in England to do that!”
Sir Thomas More: “Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!”
― Robert Bolt, A Man for All Seasons: A Play in Two Acts (as quoted at https://www.goodreads.com/work/quotes/1358325-a-man-for-all-seasons)(Lots of other good quotes from AMFAS there.)
As for the other possible prosecutions, we’ll see when something definitive happens and we have some basis on which to judge those matters. We’ve seen a lot of media smoke, but the existence of any actual legal fire is not clear.
In any event, what Bragg has done here has made any other prosecutions more difficult, because he has established the game as a political one rather than a legal one, and it will be that much harder for anyone else to escape the same conclusion with any subsequent prosecutions.
When you say "It has been clear from the beginning of Bragg’s tenure that he was out to get Trump any way he could", you demonstrate that you do not have any idea what you're talking about.
It is true that I am relying on the reports in the media and in various blog postings concerning how Bragg campaigned, rather than on my own personal knowledge, but there’s enough reported that I think it’s reasonable to take it as a given.
It's not reasonable. Even if you truly merely were following reports in the media, you'd have known that Alvin Bragg months ago advised his office that he would not proceed with a grand jury, which led to the resignations of a couple of senior prosecutors who disagreed with the decision. And his campaign never ran on "getting Trump", overtly or impliedly.
Look, let's be candid here: is there anything wrong with being out to get Trump any way possible? While I don't want to be (or be perceived to be) overly partisan, the "conservative" /"right"-wing side of our government (these days, radical extremist anti-democracy agitators, also being candid; don't like seeing "alt-right" or "conservative" when the correct description is a bit more accurate: right-wing extremist) is out to get people that are left of them any way they can, and is just fine with lying (including about Trump's competence and intentions), cheating (gerrymandering) and stealing (votes and elections) any way they can. They are the moral majority until, oops, Trump grabs em by the p**** and has multiple divorces and bankruptcies and proven lies and, oh, well, he tells it like it is, we're praying for him. How phony can they be. So yeah, let's also own that Trump needs to be stopped or our democracy is on life support. He's Hitler in Weimar Germany and some of us don't like what followed in the 1930's in Germany. It would be great if he was stopped. Legally yes but let's not pretend that more than half the country doesn't want him gone. Period.
You neglected to say why you think this a strong case.
I'd prefer to hear why you think it's a weak case. From what I've read, Bragg has clear evidence that the crimes were committed. Only question is whether intent can be proven, since this defendant is a bit crazy and convinces himself that a blue sky is black, so with this delusional defendant, proving criminal intent might be trickier than with most others.
We can do this one by one. What’s your response to John @8:07,above, his point 2. It seems to me to be dispositive proof that the reference to “another crime” in section 175.10 is to a crime under state law.
To clarify, my point #2 alone isn't dispositive. It just means that the "intent to commit another crime" requires prosecutors to point to another New York State crime; they can't point directly to federal election law.
This isn't the end of the analysis, however, as there are two New York State crimes they seem to be pointing to. But neither of the state crimes appears to work. Criminal tax fraud (NY Tax Law §§ 1801-1809) is very far-fetched for the reasons in point #3 above. And NY Election Law § 17-152 doesn't seem to work either, for the reasons in points #4 and #5.
Of course I agree with the more fundamental point that it's a weak case overall.
Besides the legal points raised by John, I think there are a lot factual issues here too. What was Trump’s state of mind? Was this really done for a campaign purpose, or a personal purpose? What would have been the accurate, non-falsified bookkeeping entry (raised by another commenter)? I think factual problems are what led to the acquittal of John Edwards when he was charged under a similar theory.
Some of the factual issues, including the need to prove intent, are discussed in this Reuters article. The piece also notes how much of the case turns on Michael Cohen, who will surely be cross-examined aggressively by Trump's lawyers.
https://www.reuters.com/legal/trump-indictment-hush-money-charges-brings-few-new-facts-2023-04-05/
I think the more attention we give Trump, the worse it is for our country. This just makes his supporters crazier, or sorry, more passionate. What good do people expect to come from this?
Trump in jail and/or barred from elective office = a good thing. He just needs to crawl back under his rock and stay there. He's dangerous. I agree, he doesn't deserve our attention. but that isn't a reason to ignore criminal behavior. Any normal person would slink away but he will run again, lying the whole time about anything and everything. that's why this is kind of inevitable. horrible but inevitable.
I definitely agree that Trump being barred from office would be beneficial but I doubt this case will actually do that. I've heard legal-scholar-people say that the case against him is flimsy. I'm worried that if a case is brought against him and fails, his enraged supporters will view it as a blatant attempt to silence him (cause it kinda is) and go berserk.
As for him crawling under a rock, I don't think losing this case would do that to him. He didn't disappear after he lost the election. He and his fans just got louder. Obviously, I don't want to not prosecute criminals because I think they'll whine about it, but it was my understanding that this kind of campaign-budget-fraud is done by politicians all the time, and they are rarely prosecuted for it. If anything, they get a fine.
I wish he would just die of old age.
I agree that I can't stand how much attention Trump is receiving. We can't deny that a former President being indicted is unprecedented and the investigations should be receiving press coverage (even though I can't stand the guy). I am avoiding watching or listening to Trump himself speak.
Yeah, but if we didn't indict him, we wouldn't have to hear about him. American life expectancy is 77 and he's 76. If we're patient, Trump will go away on his own.
If there's a crime that's been committed, he shouldn't be able to skate. If he goes away, I would prefer he die of natural causes and not be shot or something as that would make him a martyr. I read his father died when he was 93.
I agree. My only worry is that he didn't commit a crime, or at least, not the kind people are normally sent to jail for. I heard Hilary Clinton also misreported campaign funds and then got off on a fine.
if he didn't commit a crime, or if the prosecution can't prove he committed one, then a jury will find him not guilty. which is how things are supposed to work. and Clinton's misreporting campaign funds wasn't necessarily a crime, or she would have been prosecuted, one would think. and she was indicted, prosecuted and jailed if you believe the conspiracy theorists, or at least they have been saying that was going to happen since at least 2017. Too bad she's not a criminal and didn't commit crimes, outside of right-wing delusions. but if she did, sure, go after her. but she's not a sociopath who wanted to overthrow the government when she lost an election. luckily only one person is mentally ill enough to try that one. oh and, go figure, he's being prosecuted. hopefully for treason, eventually, and not just fraud.
That's for a jury for decide. His charges are not uncommon. The only thing that is debatable, in my opinion, are the underlying crimes that bumped up the charges from a misdemeanor to a felony.
This is a terrible case. Listen to the Advisory Opinions episode. Isgur and French are not Trump fans, but they agree that the indictment is laughably weak.
I agree with most of the criticisms of the case and write only to make one additional point. Brag’s claim is that by accounting for the payments to Stormy (which were made through Cohen) as “legal expense,” Trump’s intent was to conceal the commission of a crime. My question is, how was the payment supposed to be accounted for? Payments under NDAs are frequently accounted for as “legal expense.” It’s not like there’s some special accounting classification for”blackmail/hush-money payments.” So what’s the answer? What was the correct, accurate, and not misleading classification for this payment? Bragg doesn’t say and none of his defenders do, either.
Cohen went to jail for these payments, and he was Trump's agent. Do you think Cohen was guilty and Trump wasn't? These were Trump's payments, not Cohen's. In what world did Trump not have a criminal intent here, when somehow his lawyer did? Of course he committed crimes including here. No one is above the law. You're trying to figure out which form of killing someone on Fifth Avenue was ok for Trump to commit.
You didn’t even attempt to answer my question, but I’ll answer yours. Cohen pleaded guilty in a plea bargain. He pleaded to a whole host of more serious felonies and at the last minute, the prosecution threw the campaign finance charge in and since it didn’t hurt him and might have gotten him some goodwill with the prosecution, Cohen said yes. The court was not asked to determine and did not determine if the prosecutor’s theory of the case made any sense. Thus,that plea has zero precedential effect.
I’d also be happy to explain in detail why the prosecutor’s theory of the case, which flew in the face of long standing practice by the Federal Election Commission, was all wrong. You just have to ask me to do so.
I didn't try to answer your question only because in the past when I've taken the time to carefully and respectfully respond, especially on Facebook (RIP FB, at least for me), the person who originally asked would then basically call me a name and say something mindless and troll-like so I realized that I had wasted my time responding in good faith. Nothing personal. Just a longtime experience of people asking not really wanting to engage thoughtfully and respectfully. I love a good respectful debate. Don't like mindless back and forth with neither side listening. So with all that as preface, yes I'd be interested in why you think the prosecutor's theory of the case is wrong. But I'm unlikely to be swayed at this point. I want to see this play out and learn more over time. This whole thing doesn't go to trial for many months so we all have time to twiddle our thumbs and see how this plays out. My own guess /hope is that 2-3 other jurisdictions indict Trump next and he's convicted there before in NYC, so we shouldn't rush to judgment since hopefully Trump will in fact see jail at some point. I realize his supporters are likely to stoop to violence and that's the markings of a breakdown of democracy. Not the prosecution - the response to it. I strongly believe in due process and the rule of law - not selectively or unfairly applied but equally applied. Trump doesn't believe in any of that. He respects the rule of law so long as it doesn't apply to him. For that alone, we have a problem in this country, when he's largely a cult leader at this point. And he's willing to walk his supporters to the edge of the pier - and then stand by while they all jump off of the pier while he stays perfectly safe.
I would not be surprised if he were convicted in New York, what juror is going to want to go home and tell family and friends the voted to acquit. I think it will be overturned on appeal or that problematic issues with the charges including but not limited too statute of limitation will derail the case beforehand. David you should include more editorial content from other sources that are not reflexively anti Trump such as the WSJ.
A lot of the sources mentioned above are against this prosecution—the WaPo staff editorial, the Shugerman op-ed, and the Advisory Opinions and Serious Trouble podcasts. But if you have links to other sources that you'd like to share, please post them here in the comments. Thanks!
I admit to obsessively following all of the investigations and listening to the legal commentators, and agree with you, David, that the endless amount of coverage these investigations receive means there's nothing more to add.
I can't stand Trump and am happy to see him being indicted. As others have pointed out, this case may not be the best case to bring, but I don't think it's going to derail other concurrent investigations. As with any defendant, he's entitled to legal representation and the presumption of innocence. For this particular indictment, I expect that the legal process will play itself out albeit slowly. If/when it goes to trial, it will be up to the jury to decide, and everyone should accept whatever the jury decides (assuming no post-trial motions). When all is said and done, other investigations/charges will overshadow this case.
After listening to Advisory Opinions I was struck by the very positive review the indictment and statement of facts received on Strict Scrutiny. I’ve never listened there before; is it more political than legal analysis, or maybe different this time because the Pod save America guys were on, as well?
They do tend to be more political than, say, Advisory Opinions, which generally gets more granular on legal doctrine. But I also think, as you suggest, that this episode was more political than usual.
I cannot say whether this indictment is likely to result in conviction or not. And the political implications are also difficult to discern, especially given the demonstrated ability of the Trump cohort to spin even very damning information (e.g. the Mueller report). Yet, it seems to me that the indictment will have one other effect that has not yet been noted here: It will change the legal landscape in intangible ways, particularly affecting the other potential prosecutions against the same defendant. It seems to me that the "first" indictment has overcome a significant barrier that eases subsequent indictments by at least two other prosecutors.