Transforming Stormy Daniels' Hush Payment Into a Felony Would Reinforce Trump's 'Witch Hunt' Complaint

Manhattan District Attorney Alvin Bragg reportedly intends to prosecute Trump for falsifying business records.

It looks like Manhattan District Attorney Alvin Bragg, a Democrat, intends to pursue criminal charges against former President Donald Trump. But the charges he seems to have in mind, based on a 2016 hush payment to porn star Stormy Daniels, are so iffy that they reinforce Trump's reflexive complaint that he is, as always, the victim of a long-running Democratic "witch hunt."

Daniels claims she had a sexual affair with Trump in 2006, when he was married to his current wife, former First Lady Melania Trump. Although Trump denies the affair, he arranged a $130,000 payment to Daniels in the fall of 2016 to keep her story out of the press. There is nothing inherently illegal about that payment. But Michael Cohen, the Trump lawyer who paid off Daniels and was reimbursed by Trump, pleaded guilty in 2018 to violating federal law by making an excessive campaign contribution.

The theory underlying that charge was that Cohen "contributed" the hush money at Trump's behest for the "principal purpose of influencing [the] election," as opposed to avoiding personal embarrassment for Trump or sparing Melania Trump's feelings. As former Federal Election Commission Chairman Bradley Smith noted at the time, that interpretation was open to question.

"The best interpretation of the law is that it simply is not a campaign expense to pay blackmail for things that happened years before one's candidacy—and thus nothing Cohen (or, in this case, Trump, too) did is a campaign finance crime," Smith wrote in a 2018 Reason essay. "But at a minimum, it is unclear whether paying blackmail to a mistress is 'for the purpose of influencing an election,' and so must be paid with campaign funds, or a 'personal use,' and so prohibited from being paid with campaign funds."

That lack of clarity is important in assessing Trump's criminal liability for soliciting what federal prosecutors (and Cohen) described as an excessive campaign donation. To convict Trump of that offense under federal law, the government would have to prove that he "knowingly and willfully" flouted the rules. The difficulty of making that case helps explain why Trump has not been charged with violating federal law by instructing Cohen to pay Daniels in exchange for her silence.

The state charges that Bragg reportedly is contemplating are based on a New York law that makes it a misdemeanor to falsify business records, which Trump arguably did by identifying Cohen's reimbursement as payment for legal services. Cohen was paid in installments, sometimes with Trump's personal checks and sometimes with checks from his revocable trust account. The latter checks were signed by Trump Organization CFO Allen Weisselberg. According to the sentencing memorandum in Cohen's case, Trump's company "falsely accounted" for those payments by describing them as "legal expenses" under a nonexistent retainer agreement with Cohen.

Under New York's law, falsification of business records becomes a Class E felony, punishable by up to four years in prison, when the defendant's "intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof." But what is the other crime?

Last November, The New York Times reported that prosecutors working for Bragg's predecessor, Cyrus R. Vance Jr., "concluded that the most promising option for an underlying crime was the federal campaign finance violation to which Mr. Cohen had pleaded guilty." But "the prosecutors ultimately concluded that approach was too risky—a judge might find that falsifying business records could only be a felony if it aided or concealed a New York state crime, not a federal one."

While "the prosecutors briefly mulled using a state election law violation," the Times said, they rejected that idea: "Since the presidential race during which the hush-money payment occurred was a federal election, they concluded it was outside the bounds of state law." In a story published today, however, the same reporters say the trick to turning a misdemeanor into a felony "could be a violation of New York State election law." They do not explain how state election law could be construed to cover violations of federal contribution limits.

"Even if Mr. Trump is indicted," the Times says, "convicting him or sending him to prison will be challenging. For one thing, Mr. Trump's lawyers are sure to attack Mr. Cohen's credibility by citing his criminal record. The case against the former president also likely hinges on an untested and therefore risky legal theory involving a complex interplay of laws."

If anything, that gloss understates the difficulty of trying to treat a bookkeeping offense as a felony. To convict Trump of falsifying business records, prosecutors would have to prove beyond a reasonable doubt that Trump himself misrepresented the payments to Cohen "with intent to defraud" or instructed someone else to do that. But the federal prosecutors who secured Cohen's conviction said he submitted phony legal invoices "at the instruction of an executive for the Company," which could give Trump plausible deniability.

By itself, falsifying business records is a Class A misdemeanor, punishable by a maximum fine of $1,000 and/or up to 364 days in jail. Judges can impose probation instead of a jail sentence. To convert that misdemeanor into a felony, prosecutors would have to prove that Trump was trying to conceal evidence of a criminal campaign finance violation. But Trump, who seems confused about what federal election law requires, arguably did not have the requisite intent to commit that crime. And if he did not think he was committing a crime, it is hard to see how could could have intended to "conceal" it by falsifying business records.

If prosecutors can overcome that challenge, Trump might actually do time, since the minimum sentence for a Class E felony under New York's sentencing guidelines is one year in prison when the defendant has no prior felony convictions. But that's a big if.

Another potential problem is the statute of limitations.* In New York, misdemeanors have to be prosecuted within two years, and Class E felonies have to be prosecuted within five years. Bragg presumably is relying on the latter limit, because otherwise he would not be able to prosecute Trump for falsifying business records. But if the Trump Organization "falsely accounted for these payments as 'legal expenses'" sometime in 2017, as Cohen's sentencing memorandum suggests, that limit has already expired. Prosecutors would have to cite records that were falsified more recently, which maybe they can do, but to what end?

Trump's supporters would see such a case as a desperate, partisan attempt to punish him for a minor offense by dubiously treating it as a felony. Many Americans who are not particularly fond of Trump would be inclined to agree. Such a precedent would tend to discredit any effort to prosecute him for anything, including more serious charges, such as solicitation of election fraud, that have a stronger basis. That is exactly the sort of ammunition that Trump wants, and Bragg seems keen to provide it.

*Update: Prosecutors may be able to avoid the statute-of-limitations problem based on an exception for "any period following the commission of the offense during which…the defendant was continuously outside this state." Trump lived largely in Washington, D.C., during his presidency, and in 2019 he switched his official state of residence to Florida. In determining whether the prosecution can proceed, a 1999 ruling by the New York Court of Appeals suggests, the time that Trump spent in D.C. and Florida should be subtracted from the time that has elapsed since the Trump Organization misrepresented Cohen's reimbursement.