Hot Air Isn't A Defense

Several commentators have suggested that Alvin Bragg's case against Donald Trump is weak. Jennifer Rubin isn't so sure. She writes:

Any pundits who speculated ahead that the case was weak, misreported the “intent” requirement under New York law or ignored obvious “tolling” arguments putting the charges in compliance with the statute of limitations may have been premature in denigrating the case. Once more they’d be wise to hold their fire given some strategic ambiguities apparent in the indictment.

Bragg sets out the allegations: Trump was part of a scheme to pay off three individuals (a doorman, Daniels and a second woman, Karen McDougal) as part of an effort to “catch and kill” allegations of extramarital affairs (which Trump has denied). The indictment alleges that Trump directed Cohen (who already pleaded guilty to federal crimes based on these same facts) to make the payments through shell companies and invoices falsely labeled “legal retainer.” A plethora of check stubs, invoices and general ledger entries form the foundation of the case.

Importantly, the indictment ties Trump’s actions to the election in two key ways: First, evidence of his desire to drag out payments to Daniels beyond the election so he might not have to pay up in full. Second, as soon as he was sworn in, the doorman and “Woman 1” were released from their deals. Once the election was over, Trump didn’t care what they said.

And then there is Michael Cohen's indictment:

Bragg quotes from the plea entered by Cohen in federal court:

[O]n or about October of 2016, in coordination with, and at the direction of ... candidate [Trump], I arranged to make a payment to a second individual with information that would be harmful to the candidate and to the campaign to keep the individual from disclosing the information. To accomplish this, I used a company that was under my control to make a payment in the sum of $130,000. The monies I advanced through my company were later repaid to me by the candidate. I participated in this conduct, which on my part took place in Manhattan, for the principal purpose of influencing the election.

The core of the indictment alleges that Trump violated New York books and records law, a crime that is regularly prosecuted, according to research compiled by former prosecutors. In this case, those violations arguably impacted an extremely close presidential election. False statements in furtherance of a scheme to pull the wool over the eyes of voters is hardly inconsequential.

Bragg alleges that records were falsified in furtherance of a scheme to contravene state and federal election laws. He also says Trump took steps to mischaracterize the true nature of the payments for tax purposes. Tax law provides another sound basis for bumping the charges up to felonies.

Bragg has two paths to elevate Trump's false bookkeeping to the level of a felony. If one path doesn't work, he has another path open to him:

While the indictment does not set out precisely which crimes elevate books and records violations to felonies, Bragg at his news conference pointed specifically to misstatements to tax authorities, to federal election law and to N.Y. Election Law § 17-152, which makes it illegal for “two or more persons [to] conspire to promote or prevent the election of any person to a public office by unlawful means.” With the testimony of Cohen and others, plus the documents, this may not be hard to prove.

Trump's lawyers speak in Trumpian bravado. But hot air isn't a defense.

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