The New York Case Against Trump Relies on a 'Twisty' Legal Theory That Reeks of Desperation
To convert a hush money payment into 34 felonies, prosecutors are invoking an obscure state election law that experts say has never been used before.
Jurors in Donald Trump's trial at the New York County Criminal Courthouse in Manhattan have heard a lot about paying people to keep their mouths shut. The New York Times understandably calls the trial a "hush money case." But both sides in the case, the first-ever criminal proceeding against a former president, object to that characterization, and their dueling interpretations go to the heart of the legally dubious charges against Trump.
When Trump lawyer Michael Cohen paid porn star Stormy Daniels $130,000 shortly before the 2016 presidential election to stop her from talking about her purported 2006 sexual encounter with Trump, that transaction was "not illegal," Trump's lead defense attorney, Todd Blanche, said during his opening statement last week. "Entering into a nondisclosure agreement is perfectly legal. Companies do that all the time….Executives, people who are wealthy, people who are famous enter into nondisclosure agreements regularly, and there's nothing illegal about it."
When lead prosecutor Matthew Colangelo objected to Blanche's gloss, Judge Juan Merchan overruled him, and it is not hard to see why. As a general matter, what Blanche said about nondisclosure agreements was plainly accurate. The same could not be said for Colangelo's description of the case.
"This was a planned, coordinated, long-running conspiracy to influence the 2016 election, to help Donald Trump get elected through illegal expenditures, to silence people who had something bad to say about his behavior, using doctored corporate records and bank forms to conceal those payments along the way," Colangelo said during his opening statement. "It was election fraud, pure and simple."
Contrary to Colangelo's spin, there is nothing "pure and simple" about Manhattan District Attorney Alvin Bragg's case against Trump. To begin with, Trump is not charged with "conspiracy" or "election fraud." He is charged with violating a New York law against "falsifying business records" with "intent to defraud." Trump allegedly did that 34 times by disguising his 2017 reimbursement of Cohen's payment to Daniels as compensation for legal services. The counts include 11 invoices from Cohen, 11 corresponding checks, and 12 ledger entries.
Ordinarily, falsifying business records is a misdemeanor. But it becomes a felony when the defendant's "intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof." Bragg says Trump had such an intent, which is why the 34 counts are charged as felonies.
Bragg had long been cagey about exactly what crime Trump allegedly tried to conceal. But during a sidebar discussion last week, Colangelo said "the primary crime that we have alleged is New York State Election Law Section 17-152." That provision says "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."
In other words, Bragg is relying on this misdemeanor to transform another misdemeanor (falsifying business records) into a felony. But the only "unlawful means" that he has identified is Cohen's payment to Daniels. And while Cohen pleaded guilty in 2018 to making an excessive campaign contribution by fronting the hush money, Trump was never prosecuted for soliciting that contribution.
There are good reasons for that. The question of whether this arrangement violated federal election law hinges on whether the hush money is properly viewed as a campaign expense or a personal expense. That distinction, in turn, depends on whether Trump was motivated by a desire to promote his election or by a desire to avoid embarrassment and spare his wife's feelings.
The former hypothesis is plausible, especially given the timing of the payment to Daniels. But proving that allegation beyond a reasonable doubt would have been hard, as illustrated by the unsuccessful 2012 prosecution of Democratic presidential candidate John Edwards. The Edwards case, which was based on similar but seemingly stronger facts, foundered on the difficulty of distinguishing between campaign and personal expenditures.
Given the fuzziness of that distinction, it is plausible that Trump did not think the payment to Daniels was illegal. In 2018, Trump seemed genuinely confused on that point, arguing that reimbursing Cohen with his personal funds was fine, while paying him with campaign funds "could be a little dicey." According to the legal theory underlying Cohen's guilty plea, by contrast, the hush money should have been treated as a campaign expenditure.
Convicting Trump of soliciting an illegal campaign contribution would have required proving that he "knowingly and willfully" violated the Federal Election Campaign Act. Federal prosecutors evidently concluded that they could not meet that requirement. But to violate Section 17-152 of the New York Election Law, the provision on which Bragg is relying for "another crime," Trump would have had to "conspire" with Cohen to influence an election through "unlawful means," which suggests he knew the payment to Daniels was illegal.
Business Insider describes Section 17-152 as "old," "obscure," and "unused." Reporter Laura Italiano interviewed "two veteran New York election-law attorneys," a Democrat and a Republican, who backed up that description.
"I've never heard of it actually being used, and I've practiced election law for 53 years," said Brooklyn attorney Martin Connor, a former Democratic state senator. "I would be shocked—really shocked—if you could find anybody who can give you an example where this section was prosecuted," said Joseph T. Burns, an attorney for the Erie County Republican Committee. "I would be absolutely floored if you could find anyone prosecuting this in the last 40 years." Italiano adds that "two highly respected law professors specializing in New York election law said the same."
The fact that Bragg is relying on an obscure offense that apparently has never been prosecuted speaks volumes about his eagerness to convert the Daniels hush payment into 34 felonies. That strategy will prove "twisty," Connor said, because "you're having an underlying crime within an underlying crime to get to that felony."
If Trump did not recognize the hush payment as "unlawful," it is hard to see how his "intent" in falsifying business records could have included an intent to conceal "another crime." And that's assuming a purported violation of federal campaign finance restrictions counts as "unlawful means" under Section 17-152.
Bragg's predecessor, Cyrus R. Vance Jr., took a long, hard look at potential New York charges based on the Daniels payment and ultimately concluded they were all too iffy to pursue. While Vance's prosecutors "briefly mulled using a state election law violation," the Times reported in 2022, 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."
It remains unclear whether Bragg can overcome these difficulties, which may ultimately be resolved on appeal, assuming the jurors convict Trump. But to do that, they will have to accept Bragg's "election fraud" narrative.
"The entire case is predicated on the idea that there was a conspiracy to influence the election in 2016," Colangelo told Merchan last week. But as Blanche noted, "There is nothing wrong with trying to influence an election. It's called democracy." The prosecution will try to "put something sinister on this idea," he told the jury, "as if it was a crime," but "you'll learn it's not."
In addition to describing the Daniels transaction in painstaking detail, prosecutors have presented testimony about two other payoffs: a $30,000 payment to Dino Sajudin, a former Trump Tower doorman who falsely claimed that Trump had fathered a child with a woman hired to clean the building, and a $150,000 payment to former Playboy Playmate Karen McDougal, who described a year-long affair with Trump. The National Enquirer made both of those "catch and kill" payments, which prosecutors portray as part of a "conspiracy" to promote Trump's election.
David Pecker, a longtime Trump friend who ran the company that owns the Enquirer, testified that he agreed to pay Sajudin and McDougal for the exclusive rights to their stories, expecting compensation from Trump that never materialized. In light of those experiences, he said, he rebelled at paying Daniels: "I said, 'We already paid $30,000 to the doorman, we paid $150,000 to Karen McDougal, and I am not a bank. I am not paying out any further disbursements.'"
The payments to Sajudin and McDougal, Pecker explained, grew out of an arrangement with Cohen and Trump. Pecker had promised to keep an eye out for people peddling potentially damaging stories about Trump and to alert Cohen about them. Pecker also agreed to run positive stories about Trump and negative stories about his opponents. He described that arrangement, which predated the 2016 campaign, as mutually beneficial, and he said he had done similar favors for other public figures, including businessman Ronald Perelman and politicians such as Arnold Schwarzenegger.
Despite that background, Pecker said his impression was that Trump, in seeking to keep Sajudin, McDougal, and Daniels quiet, was mainly worried about the impact their stories might have on the 2016 election, as opposed to the embarrassment they might cause to him and his family. That testimony reinforced the prosecution's claim that the Daniels payment at the heart of the case was a campaign expenditure rather than a personal expense. Prosecutors likewise noted that Pecker's company, to avoid federal prosecution, had admitted making an illegal corporate campaign contribution by paying off McDougal and that Cohen had admitted breaking the law by soliciting that contribution.
Keith Davidson, the attorney who represented McDougal and Daniels when they negotiated their nondisclosure agreements, testified that he thought those deals may have helped Trump beat Hillary Clinton. On Election Night, when it started to look like Trump had won, Davidson texted Enquirer Editor in Chief Dylan Howard, saying, "What have we done?"
This testimony, the prosecution argues, illuminates Trump's motivation in paying off Daniels. At the same time, however, expanding the focus beyond the transaction that Trump allegedly tried to hide by falsifying business records muddies the waters by asking jurors to consider nondisclosure agreements that are not at issue in this case. The prosecution has compounded the potential for confusion by alleging a "conspiracy" that encompassed a lot of conduct, such as pro-Trump coverage in the Enquirer, that was not only legal but constitutionally protected.
That approach reinforces Blanche's argument that prosecutors are trying to portray "perfectly legal" actions as criminal. Trump's lawyers also argue that Cohen, who has figured prominently in other witnesses' testimony but has yet to take the stand, is an admitted liar, convicted felon, and vindictive former loyalist who cannot be trusted. And they say Trump had nothing to do with the alleged falsification of business records. In their telling, Cohen presented invoices "for legal services rendered" that the Trump Organization processed as a matter of course. Trump was busy with presidential duties, they say, and his involvement was limited to signing the nine checks that were drawn from his personal account.
Whether or not you buy that explanation, the charges in this case are based on documents—"just 34 pieces of paper," as Blanche described them—that were produced after the 2016 election. Yet Bragg claims the case involves "falsification of business records to the end of keeping information away from the electorate," which makes it "an election interference case." Given the timing of Trump's alleged crimes, that explanation makes no sense. Likewise Colangelo's claim that Trump committed "election fraud," which is usually understood to mean perverting the election process with phony ballots, illegal voting, or inaccurate tallies.
Trump, of course, argues that Bragg and his underlings are attempting "election interference" by undermining his current presidential campaign with a frivolous criminal case. But even if you take Bragg at his word, he is plainly trying to punish Trump for an alleged 2016 federal campaign finance violation. The Justice Department declined to prosecute that case, and the statute of limitations has since expired. Bragg, in any event, has no authority to enforce the Federal Election Campaign Act, which is why he is resorting to a "twisty" legal strategy that reeks of political desperation.
