Manhattan district attorney Alvin Bragg should never have indicted the so-called hush-money case against former president Donald Trump. And now Judge Juan Merchan should throw the case out, or the jury should acquit Trump, for the simple reason that Bragg has failed to prove the charges.
In 2022, the DA rejected the push for an indictment by some of his subordinates. He revived the prosecution in 2023 only after another ambitious Democrat, Attorney General Letitia James, was lauded by New York progressives for bringing a sprawling, victimless civil-fraud case Bragg had declined to charge criminally — and when it was clear that Trump would run for president in 2024.
Bragg’s indictment failed to perform its basic constitutional function of putting the defendant on notice of the charges. The false-business-records charge against Trump requires proof that he aimed to conceal another crime. The prosecution waited until its closing argument — after the defense had rested its case and could not respond — to disclose definitively and emphatically that the other crime was violating federal campaign-finance law.
Bragg’s overarching theory is that Trump defrauded the voters of information about an affair he is alleged to have had in 2006 with porn star Stormy Daniels. But concealing bad things during an election isn’t a crime, and none of the business records at issue were created until after the election.
Bragg, notorious for pleading felonies down to misdemeanors, has, in the case of Trump, taken a trifling case of dodgy accounting that may not even be a misdemeanor and inflated it into 34 felony counts of business-records falsification — for a combined statutory penalty of up to 136 years’ imprisonment. This legerdemain enabled Bragg to circumvent the two-year misdemeanor statute of limitations — in other words, the time to charge this stale case, which is based on seven-year-old bookkeeping entries, lapsed in 2019.
Those and other infirmities aside, the prosecution’s case is woefully insufficient. It depends on sleight of hand about what the crime is, inadmissible evidence, and not least, the complaisance of Judge Merchan, whose hostility to the defense illustrates his partisan bias. (Merchan made a small-dollar contribution to now-President Biden’s 2020 campaign against Trump, and his daughter is a progressive political operative who has done election work for Trump’s most ardent Democratic foes, including Biden, Kamala Harris, and Adam Schiff.)
It is shocking that, until the prosecution’s closing argument, there was still uncertainty about the charges in a criminal trial. Bragg’s accusation is now revealed to be that Trump caused his business records to be falsified with a fraudulent intent that included concealing alleged felony violations of the Federal Election Campaign Act (FECA). This explains Bragg’s furtiveness — he has no authority to enforce federal law, a task Congress assigned exclusively to the Justice Department and the Federal Election Commission, both of which declined to charge Trump even with a civil violation.
Merchan has nevertheless endorsed Bragg’s claim that the New York penal statute’s criminalization of business-records falsification with intent to conceal “another crime” greenlights state prosecution of federal law — another in the case’s plethora of legal errors.
To establish Trump’s guilt on the dubious charges, Bragg must prove that the business records in question were intentionally falsified, that this was done with an intent to defraud, and that this fraudulent intent included concealment of willful noncompliance with FECA. It is not even clear that Bragg can prove the records are false, but the evidence of fraud is scant, and there is no evidence that anyone was even thinking about FECA at the relevant time.
The 34 counts are based on Trump’s reimbursement in monthly installments during 2017 of $130,000 that Michael Cohen paid on the eve of the 2016 election to purchase Daniels’s silence about an extramarital tryst she claims to have had with Trump a decade earlier.
While the facts are sordid, NDAs are lawful and common. Yet prosecutors convinced Merchan to allow them to inform the jury that based on the payments for two NDAs — the second one for Karen McDougal, a Playboy model who also claims to have had an extramarital affair with Trump circa 2006 — Cohen pled guilty to two FECA felonies in Southern District of New York (SDNY) federal court. As a matter of law, even Merchan conceded that Cohen’s pleas are not admissible evidence against Trump. Guilty pleas are not evidence of what the law is, much less of what Trump believed the law was years earlier. But the judge allowed them to be paraded repeatedly before the jury on the pretext that they were relevant to the credibility of those witnesses. Prosecutors have stressed them as if Trump’s violation of FECA is an established fact.
The evidence that Trump’s business records were falsified is debatable, turning on the meaning of the word retainer. Relying on the testimony of convicted perjurer Cohen, prosecutors claim Trump’s business records denominated 2017 payments to Cohen as a “retainer” in order to masquerade them as ongoing legal fees, not reimbursement for the Daniels NDA. Team Trump counters that “retainer” reasonably described monthly payments to a private lawyer who was undeniably doing legal work for Trump in 2017 and whom Trump permitted to advertise himself as “the president’s personal lawyer.”
Hence, it is hardly clear that Bragg’s showing of falsity amounts to proof beyond a reasonable doubt. But it is a mountain of evidence compared to what Bragg has offered on fraud. There are no fraud victims, and the defense notes that Cohen’s compensation was structured so that he could pay the state any taxes owed.
Nobody other than Trump’s own subordinates saw any of the records until the FBI investigated Trump’s then-lawyer, Michael Cohen, in 2018. Bragg has introduced no evidence that Trump expected anybody to see them.
In short, prosecutors have offered piles of evidence about Trump’s efforts to conceal politically damaging evidence, which is neither criminal nor in dispute. What they haven’t offered is proof of what are actually charged as crimes. This case should be thrown out.