As I’ve detailed at length, Manhattan DA Alvin Bragg’s indictment of Donald Trump is full of legal problems and vague as to what theories it is even pursuing. The indictment leaves readers to guess (1) whom Trump allegedly intended to defraud and (2) what other crime Trump allegedly intended to conceal. That vagueness suggests the weakness of his case, undermines public faith in the judiciousness of this prosecution, and imposes burdens not only on Trump’s right to prepare his defense but also on the judge handling the case:

Suppose — as is likely — that the Trump legal team plans to file a motion to dismiss the indictment on the various grounds I’ve detailed in this series. If they knew what underlying crime Bragg was referring to (or what his argument for tolling the statute of limitations was), they could file with the judge a brief specifically addressing that argument. Because they are instead forced to play guessing games, they need to file a brief addressing every argument Bragg might make to sustain his indictment. This is a giant waste of labor and paper, and like a 600-page civil complaint, it chokes the judge and his law clerk trying to read the thing. It is entirely unnecessary work foisted by Bragg on everybody else, including the judge. There is no need for that.

A further complication: Trump’s lawyers filed earlier this month to remove the whole prosecution to federal court; if that fails (the theory is dubious), they might also seek a federal court injunction against the prosecution. In either case, the federal court’s job in determining what federal issues are raised in the case, and whether it relates to Trump’s presidential duties, is complicated by Bragg’s game of prosecutorial three-card monte.

We now have Bragg’s response to the Trump defense bill of particulars, which is a tool used by criminal defendants who want a more detailed statement of the prosecution’s theory of the case. A bill of particulars can be very useful to the defense and the court in focusing what the case is about, but like most efforts in litigation to get an adversary to commit to something in writing, requests for a bill of particulars often devolve into pettifoggery and gamesmanship. Bragg largely rests on his legal powers to avoid committing himself, which suggests the lack of public spiritedness and fair play that characterizes his office. There is thus a lot of “Defendant is not entitled to any further information” or hand-waving in the general direction of “millions of pages of discovery” Bragg will dump on the defense and place the burden on the defense to find the needle of his own legal theory in that haystack of evidence. For example, Bragg refuses to specify anything about his theory of whom Trump intended to defraud, suggesting that he hadn’t settled on a theory when he asked the grand jury to indict Trump.

The one item of news in the bill is where Bragg supposedly specifies what crime Trump was allegedly trying to cover up:

the crimes defendant intended to commit or to aid or conceal may include violations of New York Election Law § 17-152; New York Tax Law §§ 1801(a)(3) and 1802; New York Penal Law §§ 175.05 and 175.10; or violations of the Federal Election Campaign Act, 52 US.C.§ 30101 et seq. [Emphasis added.]

That’s right, he cited the entire federal campaign-finance code. He also cited a state election-law statute that prohibits conspiracy to pursue an election “by unlawful means” and the two false-records laws themselves, all of which are circular. To break these laws, you still need a violation of some other law. Just keep opening the Matryoshka dolls until you find one. About the only sorta-specific here is New York Tax Law §§ 1801(a)(3), which criminally punishes anyone who “knowingly supplies or submits materially false or fraudulent information in connection with any return, audit, investigation, or proceeding or fails to supply information within the time required by or under the provisions of this chapter or any regulation.” That statute specifies that a violation requires “acting with either intent to defraud, intent to evade the payment of taxes or intent to avoid a requirement of this chapter, a lawful requirement of the commissioner or a known legal duty.”

We’re still not getting much closer to a specific crime, given the problems of materiality in a tax case when nobody is alleged to have underpaid taxes. Otherwise, Bragg laundry-lists the flimsy theories already in his Statement of Facts: “an agreement to unlawfully suppress negative stories about defendant before an election in order to influence the outcome of the election,” “multiple false statements in the business records of different entities to advance that agreement, including but not limited to a series of false statements that both furthered the conspiracy and concealed earlier unlawful conduct and payments,” “disguising reimbursement payments by doubling them and falsely characterizing them as income for tax reasons,” and “multiple admissions of specific crimes by participants, including by guilty pleas to felonies.” The judge will have to guess what crime Bragg actually intends to prove at trial.

Voluble defense lawyers are unimpressed, telling A. R. Hoffman at the New York Sun:

As a longtime defense lawyer and litigator, Alan Dershowitz, asks the Sun: “How do you put on a defense if you don’t know the crime?” Another veteran litigator, Harvey Silverglate, adds that Mr. Trump is “absolutely entitled” to any information relating to the case against him…Mr. Silverglate…tells the Sun that and that there is “not a single reason” why such records have not already been forwarded on to Mr. Trump. Mr. Silverglate adds that the “refusal to enlighten defense counsel is unforgivable” and that Mr. Bragg’s prosecution has featured “one disaster after another.”

Predictably, Jennifer Rubin of the Washington Post crows that “after the unreasonable whining about the vagueness and supposed unusual deployment of false records claims pundits should eat some crow now that the bill of particulars has appeared.” Sorry, a theory that some unspecified crow might be out there somewhere does not make a meal.