Thirty-four counts of falsifying business records in the first degree. These are the felony charges that the Manhattan district attorney Alvin Bragg brought against former president Donald Trump, as revealed on Tuesday at the latter’s arraignment in New York City before Judge Juan Merchan of the New York State Supreme Court. Sitting in a nondescript courtroom inside the Manhattan Criminal Courts Building, the real estate mogul pleaded not guilty. And immediately, a debate opened up about whether the case against the first former U.S. president to face a criminal trial is strong enough, or whether it could end in a major legal fiasco.
There were no surprises when the charges were read out. There was no mention of tax fraud or obstruction of justice. The entire case revolves around the $130,000 payment made in 2016 by Michael Cohen, Trump’s lawyer and fixer at the time, to the lawyer of the porn actress Stormy Daniels so she would keep quiet about the alleged extramarital affair that she had had with Trump, with the goal of avoiding negative press during Trump’s run for the White House.
Trump repaid the money to Cohen over the course of several months, and the Trump Organization’s accounting records allegedly presented these payments as “legal fees” for non-existent services.
Paying money to buy someone’s silence is not considered a crime in the United States. And in New York, falsifying business records is only considered a misdemeanor. But it becomes a more serious crime if there are indications that it was committed to aid or conceal the commission of another crime.
This is the thesis defended by Bragg, a Democrat. Yet nowhere in the indictment or the accompanying statement of facts did the Manhattan district attorney specify the nature of the crime that was allegedly aided or concealed. This is something that has puzzled experts and sparked protests from Trump’s lawyers, who argue that the whole point of hearing the charges against you is to know exactly what you are being accused of, so you can mount the best possible defense.
In a press conference after the hearing, Bragg explained that New York law does not require him to specify that crime. He did say that it would be a violation of federal and New York election laws. That, too, has triggered surprised reactions among experts. As Manhattan district attorney, Bragg does not have jurisdiction over federal crimes.
The prosecutor’s allegations are set forth in the statement of facts that accompanies the indictment. “From August 2015 to December 2017, 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,” reads the document.
In this alleged plot, Trump was aided by David Pecker, then head of the media company AMI — owner of the tabloid newspaper The National Enquirer — and by Cohen. For the payment to Daniels of $130,000 — an amount that exceeds the limits of contributions to federal campaigns, according to Bragg — a shell company was used, as stated by Cohen, the main witness in the case.
In addition to the Daniels case, Bragg cites a payment of $30,000 to a doorman who was trying to sell information about a child that Trump allegedly had out of wedlock. The media company AMI agreed to pay that money for exclusive rights to the story, which was then “killed” and never published. Pecker, the Manhattan prosecutor alleges, had promised to ensure that no negative press would harm the tycoon’s presidential ambitions.
The statement of facts further mentions another payment through AMI, this time worth $150,000, to another woman who is not mentioned by name, but who is Karen McDougal, a former model for Playboy magazine with whom Trump allegedly also had a sexual relationship.
Bragg’s job now is to prove to the judge that these disbursements constituted a crime beyond a misdemeanor, because they sought to conceal information that might turn voters against the Republican candidate. Such a concealment would harm the transparency of the U.S. electoral process.
Trump and his lawyers — Joe Tacopina, Susan Techeles and the newcomer to the team, Todd Blanche, an expert in white-collar crimes — flatly reject Bragg’s thesis. Tacopina recently declared on ABC News that “if instead of Donald Trump we were talking about John Smith, this case would never have been brought.” Trump’s legal team says it will move for a dismissal of the case due to the weakness of its arguments.
Other experts believe that the indictment opens several avenues of defense for Trump’s lawyers. They can argue that there was no intent to commit a second crime and that the tycoon simply made the payments to protect his family, so that the allegations about him would not reach the ears of his wife Melania and their underage son, Barron. They can also argue that the candidate did not violate election laws. And that the accusations are based, above all, on the testimony of Cohen, who has become a sworn enemy of his former boss and whose credibility Trump’s legal team will strive to question.
In his own press conference, Bragg maintained that the charges were brought after a rigorous investigation. “We cannot and will not normalize serious criminal conduct. Everyone stands equal under the law,” he said after the arraignment.
Trump’s lawyers have until August 8 to present their considerations, and the prosecution will then have until September 19 to answer them. Trump’s next hearing will take place on December 4, on the eve of the start of the Republican primaries.
Sign up for our weekly newsletter to get more English-language news coverage from EL PAÍS USA Edition