The legal niceties that could make or break the case against Trump

It’s the kind of case that emboldens prosecutors and hypnotizes juries: a famous defendant authorizing a secret payment to cover up a date with a porn star.

As the Manhattan District Attorney’s Office appears poised to seek indictment against Donald J. Trump in such a case, the former president is faced with a disheartening set of facts. His former fixer, Michael D. Cohen, will testify that Mr. Trump ordered him to pay porn star, Stormy Daniels, and that the former president reimbursed Mr. Cohen and helped cover it all.

But salacious details alone aren’t enough. Prosecutors must also follow the law. And District Attorney Alvin L. Bragg may have to pull off a tough maneuver, tying the concealment of secret money — a potential violation of state law — to a federal election.

Details of any indictments that could be handed over as soon as this week are not yet known, and Mr Bragg could be charged with a number of crimes. But it’s possible the case hinges on a legal theory that has never been assessed by a judge.

A New York Times review and interviews with election law experts strongly suggest that New York state prosecutors have never filed an election law case involving a federal campaign. Bringing an untested case against anyone, let alone a former president of the United States, carries the risk of a court dismissing or reducing the case.

The case could hinge on how Mr. Trump and his company, the Trump Organization, handled reimbursing Mr. Cohen for the $130,000 payment to Ms. Daniels. Internal Trump Organization records falsely classified the reimbursements as legal fees, which helped conceal the purpose of the payments, according to Cohen, who said Trump was aware of the misleading records. (Mr. Trump’s lawyers deny this.)

In New York, falsifying business documents can be a crime, and Mr. Bragg’s office is likely to build the case around the charge, according to people with knowledge of the matter and outside legal experts. The accusation of false business documents is the bread and butter of the district attorney’s office’s white-collar practice – since Mr. Bragg took office in 2022, prosecutors have filed 117 felony counts, against 29 individuals and companies, according to data kept by the office.

But for falsifying business records to be a felony and not a misdemeanor, Mr. Bragg’s prosecutors must show that Mr. Trump’s “intent to defraud” included an intent to commit or conceal a second crime. The crime could be a violation of election law, with the theory the payment served as a donation to Mr Trump’s campaign as it silenced Ms Daniels and ended a potential sex scandal in the backline campaign right.

Although the district attorney’s office doesn’t need to secure a conviction for election law violations, or even include it in the indictment, this second crime could be the aspect of the theory. legal system most vulnerable to attack.

Lawyers for Mr Trump have said the theory that the money amounted to a campaign donation is fatally flawed. One of the attorneys recently argued in TV interviews that Mr Trump approved the payment to protect his family from false charges, noting that Mr Trump has long denied having a sexual relationship with Ms Daniels.

The attorney, Joe Tacopina, portrayed the former president as a victim of his extortion.

“We’re bending the laws to try to sack President Trump,” he said on “Good Morning America,” adding, “He had to pay money because there was going to be an allegation that was going to be publicly embarrassing to him, regardless of the campaign. There’s no crime here.”

The question of whether hush money can amount to a campaign donation is not settled law. At the federal level, this question arose with the prosecution of John Edwards, the former senator and presidential candidate, in a 2012 case that ended with jurors deadlocked on the majority of charges, that prosecutors eventually dropped.

Another case arose in 2018, when Mr. Cohen pleaded guilty to federal charges involving the hidden money. Because he pleaded guilty, the matter was never tested in court, but some campaign finance experts and conservative legal scholars argued the case was bogus.

“Michael Cohen has pleaded guilty to something not a crime,” was the headline of a National Review article at the time.

Yet the text of New York’s election law suggests otherwise. He defines a campaign contribution, in part, as “anything of value made in connection” with an election.

If Mr. Bragg is pursuing election violation as a second crime, several questions remain unanswered.

For starters, it’s unclear whether he would cite a violation of federal or state election law, or even both. And with either choice, there could be some pitfalls.

If his office uses a federal election violation as a second crime, Mr. Trump’s lawyers could argue that federal law has no place in state court. And if he uses a violation of New York’s election law, the defense could argue that a violation of state law does not apply to a federal election — in this case, the 2016 presidential campaign.

“In general, someone cannot be sued for violating a contribution limit in a federal election in state court,” said Richard L. Hasen, a law professor at the University of California at Los Angeles, specializing in electoral law.

Mr. Bragg’s predecessor, Cyrus R. Vance Jr., struggled with the same problem. Mr. Vance’s prosecutors reviewed the case for silence on several occasions – it floated around the office for so long that it became known as the ‘zombie case’, an idea that would simply not die not – and examined several secondary crimes that Mr. Trump could have committed. was trying to hide.

They never ruled out a secret money case, but feared it was too risky to use a violation of federal election law as a second crime. Mr. Vance’s prosecutors were concerned that a judge would find that falsifying business records could only be a crime if it aided or concealed a New York state crime, not a federal crime.

Their apprehension stemmed in part from a lack of precedent – ​​the only cases like this had ended in guilty pleas, meaning they had not been tested in court – as well as from New York law, which suggests that federal crimes are prohibited in New York. prosecutors.

Against that backdrop, Mr. Bragg’s prosecutors appear to have taken a more favorable stance toward using a violation of state election law, according to people with knowledge of their thinking. New York’s election laws are unusual in that they explicitly apply to federal elections, not just state elections. And New York state prosecutors have secured at least one conviction in a case in which they combined charges of falsifying business records with state election law crimes, though that case involved an election. of state and not a federal election.

Several provisions of state election law appear consistent with the conduct of Mr. Cohen and Mr. Trump, according to legal experts. The first, State Elections Law 14-126, makes it illegal for someone (Mr. Trump, according to this theory) to knowingly and willfully solicit another person (Mr. Cohen) to spend money. money in order to evade campaign contribution limits ($130,000 in silent money, well over the limits).

Another, Electoral Law 17-152, proposed as an option by analysts at Just Security and legal commentator Lisa Rubinis even simpler: it is illegal to conspire to promote the election of a candidate “by illegal means”.

Any state election law that the district attorney might attach to the charge of falsifying business records might have to go through a gauntlet: The federal campaign finance law explicitly states that it trumps — prevails, in legal terminology – state election law regarding campaign donation limits.

That could rule out the possibility of Mr. Bragg using 14-126, the New York law that prohibits soliciting campaign expenses that violate contribution limits.

But there are exceptions to the federal preemption contained in the regulations of the Federal Election Commission, known as the FEC And it is possible that the other law, 17-152, which makes it illegal to conspire to promote the election of any applicant “by illegal means” may be able to avoid triggering a federal preemption. This law does not explicitly address contribution limits.

In short, it may be the strongest option for Mr. Bragg.

“It appears that this provision, which prohibits illegally promoting an election, could fit within one of the FEC exceptions,” said Jerry H. Goldfeder, special counsel at Stroock & Stroock & Lavan LLP and a recognized expert in New York State electoral law. .

Whatever crimes Mr. Bragg charges, Mr. Trump’s lawyers are expected to raise a number of other legal challenges, including arguing that Mr. Bragg missed the legal deadline to file the case. Normally, the charge of falsifying business documents expires after five years.

But Mr. Bragg’s office has ways to extend that statute of limitations to cover events stemming from the 2016 payment. New York law extends its statute of limitations to cover periods when a defendant was continuously out of state. – Mr. Trump has spent much of his time since 2016 in Washington, DC and Florida – and former Governor Andrew Cuomo of New York extended the state’s statute of limitations by more than a year during the pandemic.

And there are a few extra perks for the district attorney: His case will be played out in state court, with a state judge — perhaps Juan M. Merchan, the well-rounded jurist who oversaw the sentencing of the Mr. Trump’s family business – and a jury in the deep blue of Manhattan.

These factors helped convince Mr. Goldfeder, the state election law expert, that the case could be viable.

“You know, it’s not a slam-dunk,” he said. “But I think it survives a motion to dismiss and then lets the jury decide.”