The case against Trump raises legal questions about the charges and the D.A.’s power

The former president’s lawyers are clinging to a lack of precedent to try to get the charges thrown out before the 2024 primaries

María Antonia Sánchez-Vallejo
Donald Trump
Donald Trump addresses his supporters on Tuesday at his residence in Mar-a-Lago (Florida).CRISTOBAL HERRERA-ULASHKEVICH (EFE)

The case against Donald Trump that began on Tuesday with his arraignment in New York could end with the real estate mogul standing trial in the middle of the Republican primaries for the 2024 presidential election. Although New York courts usually take a year on average between indictment and trial, Trump’s next court date in Manhattan is on December 4, and prosecutors have asked the judge to set the trial for January, a month before the Iowa caucuses that officially kick off the presidential primary season.

But that’s if the defense lawyers do not manage to get the case thrown out first, on the basis of what they see as flimsy arguments that will not stand up in court. Trump has been charged with 34 counts of falsifying business records to conceal hush-money payment over an alleged extramarital affair. This is not the only legal challenge faced by Trump. Not even the most potentially dangerous one.

But it’s not just Trump’s lawyers who have raised doubts about the strength of the charges. Some legal scholars have also noted that it might be difficult to prosecute the case. “Pundits have been speculating that Trump would be charged with lying about the hush money payments to illegally affect an election, and that theory rests on controversial legal issues and could be hard to prove,” said Rebecca Roiphe, a New York Law School professor, in statements to The New York Times.

Alvin Bragg, the first African-American incumbent for the Manhattan District Attorney’s Office, is wading into troubled legal waters with few precedents. Experts disagree about the potential seriousness of the accusation: while some see shadowy areas, others are celebrating Bragg’s courage. The crux of the matter is whether falsifying accounting records to conceal payments to the porn actress Stormy Daniels as well as to a former Playboy model and a Trump Tower doorman were a way to commit, aid or conceal a second crime. This second crime could potentially be the violation of federal campaign finance laws. But Bragg has no federal jurisdiction and the jump between one and the other is, for some, an uncertain move.

There is a third possibility, pointed out by Bragg himself: that a crime against state tax law was committed to conceal money from the IRS, since Cohen was given not only $130,000, the amount he advanced to Daniels, but up to $420,000, to make up for the income tax that he would supposedly owe the IRS.

Serious crimes

All 34 charges against Trump are Class E felonies, which are the lowest category of felony offense in New York and carry a maximum prison sentence of four years per count. Trump would theoretically face a total of 136 years in prison. But falsifying business records is generally considered a misdemeanor unless the fraud is used to commit a second offense, such as campaign laws violations — in which case it would become a felony. The hush-money payments were made during the last stretch of the 2016 presidential campaign. But was the hypothetical violation of campaign finance laws a consequence of that, a mere coincidence, or a clear goal?

Karen Friedman Agnifilo, a former Manhattan chief assistant district attorney, and Norman Eisen, who was special counsel to the House Judiciary Committee for the first impeachment and trial of Donald Trump, feel that Bragg has a strong case against the former president. In an opinion column for The New York Times, they write that “there’s nothing novel or weak about this case. The charge of creating false financial records is constantly brought by Mr. Bragg and other New York D.A.s.”

Among Republicans, criticism is rife, while Democrats are being largely silent on the matter. “The prosecutor’s overreach sets a dangerous precedent for criminalizing political opponents and damages the public’s faith in our justice system,” said Republican Senator Mitt Romney, a well-known Trump critic. William Barr, who was attorney general to the Republican president, called the allegations of election fraud “a complete lie” and the prosecution a “pathetically weak case.”

The jurisdiction of the Manhattan District Attorney’s Office is New York, with all its financial dimension. That means that the D.A. routinely investigates complex white-collar cases, such as the 2014 BNP Paribas international scandal, and others involving high-profile individuals, such as the recent case against Allen Weisselberg, former Trump Organization CFO, who was tried and convicted over an intricate plot of tax fraud. But the next step of the case against Trump, proving that the business record crimes can be elevated to felonies, ventures into uncharted territory.

Trump, who pleaded not guilty to all charges Tuesday, is the 30th individual accused of falsifying accounting by Bragg since he took office in January 2022, after winning the Democratic primary on a platform focused on a reform of bail and probation conditions. Bragg, a 49-year-old Harlem resident, has filed 151 such charges so far.

According to experts, there are precedents for applying state legislation in cases involving federal candidates, as is the case with Trump. The payment to Daniels exceeds the legal limit for federal campaign contributions.

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