Three lessons from Trump’s historic arrest and settlement
On Ed
Harry LitmanApril 4, 2023
Since it became clear that Manhattan Dist. Thoughtful Alvin Bragg planned to charge Donald Trump with crimes stemming from hush money payments to Stormy Daniels, close observers have wondered how he would frame the crimes and resolve the issues that apparently led him to drop charges shortly after taking office in the put mothballs. Of
Today
Tuesday’s dramatic lineup of former president, Bragg revealed his hand, except he didn’t in important ways.
The indictment itself, at the very least, is a recitation of 34 counts of falsifying business documents that vary only by date. That’s not necessarily a criticism: It’s pretty clear that Bragg made a strategic decision to outline the outline of the base charges and leave it to future proceedings to fill in the picture.
But along with the indictment, Bragg also filed a full statement of facts. It is not part of the indictment nor, a footnote makes clear, a full list of evidence. But it nevertheless reveals answers to fundamental questions surrounding the case.
First, and most importantly, Bragg plans to prove the charges as an elaborate course of action, namely, as the statement says, a catch-and-kill plan to suppress negative information. In other words, the case is about much more than a payment of hush money to Stormy Daniels or the accounting error Trump’s allies claim to be.
It’s instead a slew of allegations starting in 2015 involving several partners in crime, you could call them co-conspirators, except that Bragg doesn’t have the very specific goal of influencing the 2016 election. Bragg emphasized this during his press conference on Tuesday, stating that the evidence would show that Trump’s motive was to cover up crimes related to the 2016 election.
The plan, according to Bragg, began with a meeting with then-CEO of National Enquirer’s parent company, David Pecker, and an agreement to help Trump’s campaign by suppressing damaging narratives. The statement points to very strong evidence of this purpose, including the damning detail that Trump instructed his attorney Michael Cohen that “if they could defer payment [to Daniels] until after the election they couldn’t pay at all, because then it wouldn’t matter if the story went public.
This underscores why Pecker was the last substantive witness we know of to have been tested before the grand jury. It is likely that he will be the most important witness after Cohen.
Second, anticipating criticism for suing 34 cases of forgery of business documents, Bragg stressed that Manhattan is the financial center of the world and therefore accurate books must be maintained. Falsifying such records in New York is a felony, provided it is done to further other crimes, and Bragg chose not to specify what he claims those crimes were in the indictment. As he indicated, the law does not require him to.
But in his statement of facts and press conference, Bragg suggested the other crimes are campaign finance violations, both (or either) federal and state. That will give rise to some major legal disputes on the horizon. In short, violations of both state and federal campaign finance lead to legal uncertainties about whether they are sufficient to make the counterfeit a felony. Bragg has the better arguments on these questions, but the indictment does nothing to put them to rest.
Prosecutors could also argue that the forgery furthered a conspiracy to unlawfully influence elections, which is a crime in New York. The battle here will be about what such unlawful means are. Again, Bragg is well positioned, but Trump’s lawyers can still make a strong argument.
Third and finally, the skeletal nature of the indictment means we can expect a challenge in legal terms, a “state of particulars that seeks to force the prosecution to flesh out the indictment.
Bragg seems to have made a tactical decision to maintain maximum flexibility and not make crucial legal decisions sooner than necessary. That could serve the prosecution well, as New York has been parsimonious about allowing immediate appeals, which has often led Trump to delay accountability. The prosecutor’s strategy could help the trial reach a verdict sooner rather than waiting for an appeal.
In short, Bragg opted for both to lay out the scope and severity of Trump’s transgressions while maintaining maximum flexibility to change the legal course of action. Given the unpredictable and hugely challenging nature of this historic case, that is a sensitive approach.
Harry Litman is the host of the
Talking Feds podcast
.