Alvin Bragg's Case Against Trump Presents a Tangle of Interacting Laws and Intent Puzzles
To convert a hush payment into 34 felonies, prosecutors are relying on a chain of assumptions with several weak links.
During four days of testimony in Donald Trump's trial, his estranged lawyer and fixer, Michael Cohen, supplied crucial evidence linking the former and possibly future president to the crimes alleged by New York County District Attorney Alvin Bragg. Cohen said "the boss" instructed him to pay porn star Stormy Daniels $130,000 shortly before the 2016 presidential election to keep her from talking about her alleged 2006 sexual encounter with Trump. Cohen said Trump also approved a plan to reimburse Cohen in 2017 through a series of payments disguised as compensation for legal services. Cohen was the only witness who gave direct support to the latter claim, which underlies the allegation that Trump falsified business records—the heart of the case.
One question for the jurors is whether to believe Cohen, a convicted felon and admitted liar with a powerful grudge against Trump and a financial interest in agitating for his imprisonment via books and podcasts. Another question is exactly what sort of intent is required to convict Trump not only of falsifying business records but of doing so to conceal "another crime," which elevates what would otherwise be 34 misdemeanors into 34 felonies. Here things get confusing because of the interacting statutes on which the prosecution is relying.
As a misdemeanor, falsifying business records requires only an "intent to defraud." If the jury believes the prosecution has proven beyond a reasonable doubt that Trump knew the checks to Cohen were falsely identified as payment for legal services, it will convict him of falsifying business records.
Trump personally signed nine of those 11 checks, which the stubs described as "retainer" payments. Although Trump designated Cohen as his personal lawyer after the election, Cohen testified that he never expected to be paid for that position, which he said he was glad to have mainly because of the business connections he thought it would facilitate. Cohen said he never had a retainer agreement with Trump.
Although Trump had to sign those checks because they were drawn on his personal account, his lawyers say, he was not aware of exactly how his bookkeepers characterized the payments. According to the defense team, Cohen presented invoices that the Trump Organization paid as a matter of course, and Trump was too busy with presidential duties to concern himself with the associated records.
To rebut that account, prosecutors presented testimony that Trump was a proud penny-pincher who never would have agreed to pay Cohen without knowing exactly what he was getting in return. The payments totaled $420,000. According to handwritten notes by Trump Organization CFO Allen Weisselberg, that included reimbursement for the hush payment, which he doubled to account for taxes, plus a bonus and a reimbursement for an unrelated expense. Prosecutors suggested it was implausible that Trump actually thought he was paying Cohen for his 2017 services as a personal lawyer, and Cohen testified that Trump signed off on Weisselberg's plan during a meeting at Trump Tower.
To prove that Trump is guilty of 34 felonies, however, the prosecution had to show that his "intent to defraud" included "an intent to commit another crime or to aid or conceal the commission thereof." Lead prosecutor Matthew Matthew Colangelo said the other crime was a violation of an obscure New York statute: Section 17-152 of the New York Election Law, which makes it a misdemeanor for "two or more persons" to "conspire to promote or prevent the election of any person to a public office by unlawful means."
Prosecutors say the "unlawful means" was Cohen's payment to Daniels: By fronting that money, he made an excessive campaign contribution, thereby violating the Federal Election Campaign Act. Cohen accepted that characterization, which hinges on the fuzzy distinction between personal and campaign expenditures, in a 2018 federal plea agreement that also resolved several other, unrelated charges against him. But Trump was never prosecuted for soliciting that "contribution," probably because it would have been hard to prove that he "knowingly and willfully" violated federal campaign finance regulations. If Trump thought the nondisclosure agreement with Daniels was perfectly legal, as his lawyers maintain, he did not have the intent required for a federal conviction.
Does that matter under Section 17-152? Since it appears this provision has never been enforced before, the answer is not clear. On its face, the statute requires only a conspiracy to promote an election "by unlawful means." It does not say the conspirators must recognize that the means are unlawful. But ordinarily under New York law, proving a criminal conspiracy requires proving "a specific intent to commit a crime." If Trump did not think Cohen's payment to Daniels was "unlawful," and it is plausible that he didn't, he did not have that "specific intent."
The uncertainty about Trump's understanding of federal campaign finance regulations also figures directly in the felony charges under the statute prohibiting falsification of business records. If Trump believed there was nothing illegal about paying off Daniels via Cohen, it is hard to see how he could have falsified business records with the intent to hide "another crime."
Prosecutors presented testimony from Cohen and other witnesses who said Trump's main motivation in silencing Daniels was neutralizing a threat to his election, which goes to the question of whether the payment qualified as a campaign expenditure. Cohen averred that Daniels' story, coming on the heels of the Access Hollywood tape in which Trump bragged about sexually assaulting women, would have been "catastrophic" to his campaign.
That seems doubtful in retrospect. Trump won the election despite the Access Hollywood tape and despite his well-known history of adultery, to which the alleged Daniels encounter merely would have added another chapter. And right now he seems poised to defeat Biden again, even though the Daniels story is common knowledge and even though a jury found him civilly liable for sexually assaulting and defaming E. Jean Carroll. But when it comes to proving that Trump should have recognized that the hush payment was an illegal campaign contribution, what matters is whether he was worried about the potential electoral impact of Daniels' account, as opposed to the embarrassment it would cause or the damage it would do to his reputation, brand, and business.
When Cohen asked Trump how his wife would respond to the Daniels story, Cohen testified, Trump did not seem concerned. "Don't worry, he goes," Cohen said. "He goes: 'How long do you think I will be on the market for? Not long.'" In other words, Cohen said, "He wasn't thinking about Melania. This was all about the campaign." In fact, Cohen testified, Trump initially hoped to never pay Daniels. If he could stall her until after the election, Cohen said, "it wouldn't matter" to Trump.
If so, you might wonder, why would Trump be so keen to keep the story under wraps even after the election? The prosecution says he was trying to hide the fact that he and Cohen had violated Section 17-152 by violating the Federal Election Campaign Act. That theory hinges on several doubtful premises.
As New York Times columnist David French notes, "the state election law that the prosecution cites may well be pre-empted by federal law and therefore be inapplicable to the case." Even if the state law does apply, the prosecution's theory assumes not only that Trump recognized Cohen's payment to Daniels as an illegal campaign contribution but also that he knew it was a violation of Section 17-152—a provision so obscure that experts on New York election law say they have never seen a criminal case based on it.
It seems quite unlikely that Trump knew anything about that law, let alone that he anticipated how it might be construed by New York prosecutors. And if he did not know he could be accused of violating Section 17-152, how could he have falsified business records with the intent of covering up that alleged crime?
Juan Merchan, the judge presiding over Trump's trial, presumably will clarify these issues when he instructs the jurors prior to their deliberations, which are expected to begin next week. But the case presents such a tangle of interacting laws and mens rea puzzles that Trump will have ample grounds for appeal if he is convicted.
Those issues help explain why Bragg's predecessor, Cyrus R. Vance Jr., decided, after long consideration, that state charges based on the Daniels payment were too iffy to pursue. Mark Pomerantz, a former prosecutor in Vance's office who worked on the Trump investigation, concluded that "such a case was too risky under New York law." In a 2023 book, Pomerantz noted that "no appellate court in New York had ever upheld (or rejected) this interpretation of the law."
Pomerantz, who was so keen to build a criminal case against Trump that he agreed to work on the investigation for free, is by no means the only Trump critic who is skeptical of Bragg's case. "Numerous legal analysts, including people who are no friends of Trump, have expressed grave reservations about the case," French notes, "in large part because of the difficulty of linking the falsified records to an additional, separate crime."
While French condemns Trump's "morally repugnant" conduct, he emphasizes that "immorality alone doesn't make him a criminal." And he worries about the consequences of a conviction that is overturned on appeal. "Imagine a scenario in which Trump is convicted at the trial, Biden condemns him as a felon and the Biden campaign runs ads mocking him as a convict," he writes. "If Biden wins a narrow victory but then an appeals court tosses out the conviction, this case could well undermine faith in our democracy and the rule of law."
The problem, of course, goes beyond public perceptions. If Bragg is prosecuting Trump in a desperate, last-ditch attempt to prevent him from reoccupying the White House—and that is certainly how it looks—he is abusing his powers and perverting the law. The case seems to exemplify the very sort of misconduct that Trump's opponents fear he will commit if he wins the election.
