Manhattan District Attorney Alvin Bragg made history this week when he became the first prosecutor to charge a former president with criminal activity.
He could also face a historic level of ridicule if his case collapses in court.
MANHATTAN DA INQUIRY: BRAGG COULD FACE 'UPHILL CLIMB' AGAINST TRUMP, LEGAL EXPERTS SAY
Bragg’s indictment of Trump is thought to focus on payments the former president made during the 2016 presidential race to a woman with whom he’d had an affair, Stormy Daniels, years earlier.
But the case had sat dormant for years after federal investigators from multiple agencies separately concluded they did not have enough evidence to bring charges.
And Bragg’s central argument is believed to involve a complex and unprecedented legal maneuver that combines state and federal law to skirt the statute of limitations on the underlying alleged offense, falsifying business records.
“The prosecution came about in the most overtly political way from Bragg campaigning on charging Trump to a public pressure campaign to indict from his former lead prosecutor,” Jonathan Turley, a George Washington University law professor, wrote this week.
Turley was referring to Mark Pomerantz, a former prosecutor in Bragg’s office who resigned in protest of what he saw as Bragg’s disinterest in advancing the Trump case shortly after Bragg took office last year. Pomerantz went on to write a tell-all book about the case, even though the DA’s investigation was ongoing and Trump hadn’t been accused of anything at the time, and went on a media tour in which he publicly called for Trump’s prosecution.
“If reports are to be believed, it is not merely an unworthy exercise of prosecutorial discretion,” wrote Andrew McCarthy, a former U.S. attorney. “It is one that will threaten the legitimacy of the justice system — on the public acceptance of which the rule of law hinges.”
The more than 30-count indictment against Trump remained under seal Friday as the former president’s legal team made arrangements for him to appear in court as early as Tuesday.
Based on publicly reported facts about the indictment, Trump’s payment of $130,000 to Daniels through his former lawyer Michael Cohen in 2016 forms the basis of the case.
The money, Trump’s team has openly acknowledged, was intended to keep Daniels quiet about her claims of a prior affair with Trump. Hush money payments on their own do not violate the law.
Cohen funneled the money to Daniels through a shell company he had recently created and later received reimbursement from the Trump Organization. The Trump Organization, in turn, recorded the reimbursement as a legal expense.
Payments Cohen arranged for a second woman, Karen McDougal, could also become part of the case; Cohen facilitated a $150,000 payment to McDougal from the publisher of a tabloid that declined to publish her allegations of an affair before the 2016 election.
The Justice Department decided in 2018 not to prosecute the tabloid over that payment.
Bragg is expected to accuse Trump of falsifying records by logging the Trump Organization’s payment to Cohen as a legal expense.
But that’s only a misdemeanor under New York law — and it wouldn’t hold up as a stand-alone charge anyway because the statute of limitations on misdemeanor charges in the state is two years, and still only five years if the charge is a felony.
The alleged wrongdoing occurred nearly seven years ago when the first of the checks to Cohen started flowing.
Based on public information, Bragg appears to have gotten around that limit by citing how much time Trump spent out of the state since the alleged crime. Most of that time he spent as president, splitting his time between residences in Washington, D.C., Palm Beach, Florida, and Bedminster, New Jersey.
And Bragg appears to have worked to upgrade the falsifying records charge from a misdemeanor to a felony by alleging that it was done in order to cover up a second crime — in this case, an alleged campaign finance offense.
Bragg is believed to have argued that Trump made the payments to boost his presidential campaign; not recording those payments as campaign expenditures would therefore qualify as a second crime.
But federal officials have already investigated the campaign finance aspect of the payments and declined to take action against Trump. The Federal Election Commission dropped an investigation of the situation in 2021, and when the Justice Department brought charges against Cohen for activity related to the payments, federal prosecutors notably did not include Trump in their case.
Trump’s legal team has argued Trump made the payments to spare his family from the public embarrassment of having women speak out about alleged affairs — not to shield his campaign from scrutiny.
Bragg would need evidence to suggest Trump knowingly broke the law and that he did so specifically to help his political prospects rather than to protect his wife and children.
Trump’s lawyers could also argue that the then-presidential candidate was the victim of extortion because the women threatened Trump with humiliation when demanding money from him, and that could further complicate Bragg’s path to a felony conviction.
What’s more, Bragg’s own credibility could become an issue with judges and jurors. Bragg has publicly boasted about how aggressively he’s pursued Trump; it was part of his pitch to voters as he campaigned for the DA post.
Bragg is also a well-known progressive whose office has downgraded significantly more felonies to misdemeanors than his predecessor did.
The contrast between Bragg’s efforts to downgrade most felonies and his push to upgrade Trump’s misdemeanor could undermine his ability to pose as a neutral law enforcement official.
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Still, much remains unknown about the specifics of Trump's indictment.
Bragg could have amassed far more evidence than the public record presently suggests. His witness list could extend beyond Cohen, who has lied to federal officials before, and Daniels, who has ridden the Trump drama to international fame.