Manhattan Dist. attentive Alvin Bragg’s indictment of former president

Donald

Trump has taken an open approach to the allegations that some critics of the unprecedented prosecution see as a weakness. What the detractors have overlooked are the substantial and unexpected legal and factual strengths outlined in the Bragg case.

A key question ahead of the indictment’s unsealing on Tuesday was how Bragg would increase the easily proven felony charges of falsifying business records. Under New York law, those offenses only become felonies if they further another crime. Many theories circulated about the second crime Bragg would allege, and most of the possibilities had notable flaws.

Bragg’s answer was essentially, I’ll tell you later. He took advantage of the state law’s wording, which only requires the crime to be committed in the service of a crime, to buy himself maximum time and flexibility.

Bragg may have to choose his crime down the line, perhaps in response to an anticipated defense motion for a particulars—that is, an elaboration of the Delphic indictment to allow Trump’s team to prepare an appropriate defense.

On the other hand, the prosecutor may

not

must specify a second crime. The jury’s instructions on corporate record falsification say it’s a felony if the defendant acted with intent to commit fraud, including intent to commit another crime or to aid or conceal the commission of it. It is therefore not clear that they require the jury to even agree on what the rising crime rate is.

But Bragg this week also added a powerful possible second crime that many observers didn’t expect. It is evidenced by the fact that by making his lawyer Michael Cohen sane for the hush money he paid to Stormy Daniels, Trump took enough to compensate Cohen for the taxes he would have to pay on the income, i.e. on the false legal provision that was camouflaged the hush money.

It is not clear whether Cohen actually declared and paid taxes on the reimbursement or whether the Trump Organization declared it as a business expense. The Bragg team’s insight is that it doesn’t matter: the language that makes falsification of business documents a felony only requires the intent to commit another crime or to aid or conceal the commission of one.

That purposely includes what lawyers call inchoate crimes. The law would clearly be satisfied by withdrawing money intended to commit or conceal another crime, namely a false tax return, whether or not that crime occurred.

Importantly, this theory could be a way around the legal questions inherent in the claim that the second crime was a state or federal campaign finance violation.

Claiming a campaign finance violation would also raise a factual dispute over whether the hush money was really paid to bolster Trump’s electoral prospects. Team Trump continues to suggest that the actual purpose of the payout was to prevent anything from getting out [that was] false but embarrassing to himself, his family, his young son,” as Trump attorney Joe Tacopina put it.

That’s certainly a far-fetched theory: The idea that Trump might not be a loyal husband wouldn’t come as a shock to most people, let alone those who know him best. But in a setting where the prosecution has to prove its case beyond a reasonable doubt, the claim that he was trying to protect his family’s feelings cannot be completely ignored.

Here’s where it matters that Bragg asserted an entire line of action, not just Daniels’ payout, but a broader plan to boost [Trumps] election prospects by quashing other potentially damaging narratives. Bragg emphatically stressed that much in his loose public statements this week suggested that David Pecker, the former CEO of parent company National Enquirers, will be a critical witness.

Bragg’s statement of facts provided a nugget of new information that blows the Trump team’s alternate explanation for the payment out of the water. It notes

That

Trump told Cohen 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.

If the jury credits that statement, it destroys the argument that Trump was merely trying to hide the tawdry facts from Melania. In fact, it proves that Trump was fine with broadcasting the affair to his family and the rest of the world once his election was secured.

So even as Bragg settled his bets with a skeletal indictment, his statement of facts and public comments reveal a clear path to a felony conviction: showing that Trump’s falsification of business records was intended to aid and conceal a tax violation ( regardless of whether it took place or not). ) and to avoid a revelation that would hurt his campaign on the eve of the election.

Harry Litman is the host of the

Talking Feds podcast

.

@harrylitman