For many of us in the legal community, Manhattan District Attorney Alvin Bragg’s case against former President Donald Trump borders on the legally obscene: an openly political prosecution based on a theory even legal pundits dismiss. Yet Monday the prosecution seemed to actually make a case for obscenity.
It wasn’t the gratuitous introduction of an uncharged alleged tryst with a former Playboy Bunny or expected details on the relationship with an ex-porn star. It was the criminal theory itself that seemed crafted around the obscenity stan- dard Supreme Court Justice Potter Stewart famously described in 1984’s Jacobellis v. Ohio: “I shall not today attempt further to define [it]. . . . But I know it when I see it.
The prosecution must show Trump falsified business records in “furtherance of another crime.” After months of confusion on just what crime underpinned the indictment, the prosecution offered a new theory so ambiguous and undefined, it would have made Justice Stewart blush.
Prosecutor Joshua Steinglass told the jury that in listing Stormy Daniels payments as a “legal expense,” Trump violated this New York law: “Any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor.”
So Trump committed a crime by conspiring to unlawfully promote his own candidacy, by paying to quash a potentially embarrassing story and then reimbursing his lawyer Michael Cohen with other legal expenses.
Confused? You are not alone.
It’s not a crime to pay for the nondisclosure of an alleged affair. It’s also not a federal election offense (the other underlying crime Bragg alleges) to pay such money as a personal or legal expense. Federal law doesn’t treat it as a political contribution to yourself.
Yet somehow the characterization of this payment as a legal expense is an illegal conspiracy to promote one’s own candidacy in New York.
In New York, prosecutors are expected to have extreme legal myopia: They can see no farther than Trump to the exclusion of any implication for the legal system or legal ethics.
Of course, neither Bragg nor his office has ever seen this type of criminal case in any other defendant. Ever.
We’ve never seen a case like this one where a dead misdemeanor from 2016 could be revived as a felony just before the 2024 election,
Old rap resuscitated
The statute of limitations for this case’s misdemeanors, including falsifying payments, has expired. But Bragg (with the help of counsel and former top Biden Justice Department official Matthew Colangelo) zapped it back into life by alleging a federal election crime the Justice Department itself rejected as a basis for any criminal charge.
It’s not clear Trump even knew how this money was characterized in records. He paid it to his lawyer, who had put together the settlement over the nondisclosure agreement. Cohen will soon go on the stand and tell the jury it should send his former client to jail for following his legal advice.
Besides running for president, Trump was married and had hosted a hit television show. There were ample reasons to secure an NDA to bury the story. Even if it was done with the election in mind, it is not unusual or illegal. There is generally no need to list such payments as a campaign contribution because the federal government doesn’t see them as a campaign contribution.
It’s not even clear how this matter was supposed to be noted in records. What if the Trump employee put “legal settlement in personal matter” or “nuisance payment”?
The crime itself may not be clear or even comprehensible. But the defendant’s identity could not be clearer, and the prosecutors are hoping the jury, like themselves, will look no further
