The New York indictment of former President Donald Trump, which was unsealed on Tuesday, includes 34 felony counts. All of them are related to a 2016 payment aimed at keeping porn star Stormy Daniels from telling the press about her alleged 2006 affair with Trump.
Although there was nothing inherently criminal about that hush payment, Manhattan District Attorney Alvin Bragg, a Democrat, has transformed it into nearly three dozen felonies through a tricky two-step process. First, Bragg portrays the payment as a violation of federal election law. Second, he claims Trump repeatedly falsified business records to cover up that uncharged and unproven crime. Yet the underlying conduct, while salacious, still does not seem serious enough to justify the first-ever prosecution of a former U.S. president, especially when the defendant is seeking that office again by running against an incumbent who is a member of the district attorney's party.
Prior to the 2016 presidential election, former Trump lawyer Michael Cohen paid Daniels $130,000 to keep her story out of the press, and Trump later reimbursed him with a series of checks. Federal prosecutors viewed the payment to Daniels as an excessive campaign contribution, a characterization that Cohen accepted in a 2018 guilty plea. But although Cohen said he was acting at Trump's behest, the Justice Department never prosecuted Trump, even after he left office. In 2021, an evenly divided Federal Election Commission (FEC) declined to pursue charges against Trump, his business, or his campaign.
The New York indictment nevertheless alleges that Trump "violated election laws" when he instructed Cohen to pay Daniels. That claim is based on the assumption that the payment was aimed at influencing the election rather than avoiding personal embarrassment and/or sparing Melania Trump's feelings. While that inference seems plausible given the payment's proximity to the election, it is not clear that the Justice Department's reading of the law in Cohen's case was correct.
Former FEC Chairman Bradley Smith thought not. "The best interpretation of the law," he wrote after Cohen's guilty plea, "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." At the very least, Smith said, "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."
It is also unclear whether Trump, who seemed confused about what federal election law requires, "knowingly and willfully" violated it, as would be required for a criminal conviction. Still, let's assume federal prosecutors could have made that case but for some unknown reason decided not to try. How does Trump's alleged violation of federal election law become a felony under New York law, let alone 34?
The indictment, as expected, is based on a state law that makes it a misdemeanor to falsify business records "with intent to defraud." That offense 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."
The indictment says Trump violated that law 34 times by falsely recording Cohen's reimbursement as payment for legal services under a nonexistent retainer agreement. It cites Cohen's invoices, Trump's checks and check stubs, and Trump Organization ledger entries, each of which is listed as a separate count. And since Trump allegedly falsified those records to conceal "another crime," each of those counts is charged as a felony.
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." Yet contrary to speculation that Bragg would allege another violation of state law as the underlying crime, the indictment mentions only the federal offense that was never prosecuted.
That is problematic not only because of the concern noted by the Times. If Trump did not understand federal election law, which Smith argues is hazy on this point, and/or did not anticipate how federal prosecutors would interpret it, he did not "knowingly and willfully" violate it. And if he did not believe he had committed a crime, how could he have falsified business records with the intent of concealing it?
The "statement of facts" accompanying the indictment describes two other cases in which Trump or an ally allegedly tried to cover up politically damaging information. Cohen arranged for the National Enquirer to pay former Playboy model Karen McDougal $150,000 for her story about sex with Trump, which it kept under wraps. Cohen said he did that at Trump's direction, and he pleaded guilty to soliciting an illegal corporate campaign contribution. The statement of facts also mentions a $30,000 "catch and kill" payment from the Enquirer to a former Trump Tower doorman who claimed to have information about a child Trump had fathered out of wedlock. But neither of these incidents figures in the New York charges against Trump, all of which derive from the payment to Daniels.
Trump "repeatedly and fraudulently falsified New York business records to conceal criminal conduct that hid damaging information from the voting public during the 2016 presidential election," says the statement of facts. "The Defendant orchestrated a scheme with others to influence the 2016 presidential election by identifying and purchasing negative information about him to suppress its publication and benefit the Defendant's electoral prospects. In order to execute the unlawful scheme, the participants violated election laws and made and caused false entries in the business records of various entities in New York."
At bottom, however, this case is about a single hush payment that was criminal only if it is construed as a campaign contribution. That interpretation is, at best, debatable, as illustrated by the unsuccessful federal prosecution of former North Carolina senator and Democratic vice presidential nominee John Edwards in a similar but seemingly stronger case. If the attempt to keep Daniels quiet does not strike you as an offense worthy of 34 felony charges, you are unlikely to change your mind simply because the Trump Organization kept pieces of paper that mischaracterized the reimbursement for that payment.