More than a week after Donald Trump created a media frenzy by claiming that he was going to be arrested, Alvin Bragg, the Manhattan District Attorney, is still deciding whether to bring criminal charges against the former President arising from the hush-money payment that he made through Michael Cohen, his ex-lawyer, to the adult-film actress Stormy Daniels in the run-up to the 2016 election.
On Monday, David Pecker, the former publisher of the National Enquirer and a longtime friend of Trump’s, testified before Bragg’s grand jury for a second time. Executives at the supermarket tabloid reportedly played a key role in arranging the payoff to Daniels, who claimed to have had an affair with Trump, and Pecker was likely questioned about his knowledge of the payment. A key legal issue in the investigation is whether the hundred-and-thirty-thousand-dollar payoff was effectively an illegal campaign contribution that Trump made to himself. (Cohen wired the money to Daniels’s attorney in October, 2016, and the Trump Organization subsequently repaid him.)
Although there is still no indictment, the case has already sparked a good deal of discussion in legal circles, because it could well hinge on a novel effort by Bragg to elevate the charges against Trump to a felony. According to news reports, the District Attorney is considering charging Trump with falsifying business records for entering the payoffs to Daniels into company ledgers as legal fees. By itself, falsifying business records is usually a misdemeanor. But if Bragg can show that Trump falsified the records in connection with another crime—making an illegal campaign contribution, let’s say—he could conceivably elevate the charge. “If it is done with the intent to violate another law, then it becomes a felony,” Jerry H. Goldfeder, an attorney and an expert on New York campaign laws, told me.
Appearing on NBC News’ “Meet the Press” this weekend, Joe Tacopina, a lawyer who is representing Trump in this matter, criticized Bragg’s office and provided a preview of Trump’s likely defense. The “case shouldn’t be brought and wouldn’t be brought if it were anyone other than Donald Trump, let’s be clear about that,” Tacopina said. More specifically, he repeatedly claimed that the payoff to Daniels wasn’t a campaign contribution. He described it as a “personal civil settlement” with Daniels, which Trump would have made “irrespective of the campaign” to protect his privacy.
Speculation about Bragg’s potential indictment seems to have united Republicans behind Trump. Even some of the former President’s critics in the Party have denounced Bragg’s investigation. Peter Meijer, a Republican congressman who voted to impeach Trump after January 6, 2021, described the case as a “billion dollar gift-in-kind from Democrats to Trump’s ’24 campaign.”
With Trump out there ranting and raving—in the past week, he has called Bragg an “animal” and threatened “death and destruction” if an indictment comes—the political stakes are, indeed, high, and so are the legal ones. The lawyers I spoke with agreed that Trump’s intent in paying off Daniels, through Cohen, is central to the prospect of a successful prosecution. “The defense will probably be that the payment, the entire transaction, all the people involved, were not acting in furtherance of the campaign—that it was all about Melania, and the family, and God knows what,” Goldfeder, who has chaired the New York City Bar Association’s Committee on Election Law, said. “That’s the challenge for the District Attorney—to convince the jury that, in fact, it was in furtherance of the campaign.”
The fact that Cohen has already pleaded guilty in a federal case to “causing an unlawful campaign contribution,” and served prison time, would surely add heft to the prosecutors’ case at a trial. Still, Bragg’s team presumably wouldn’t want to rely solely on the testimony of Cohen, who has also pleaded guilty to making false statements to a bank and to lying to Congress. It is in this context that Pecker’s testimony could be key. Also in 2018, as part of a non-prosecution agreement with the office of the U.S. Attorney in the Southern District of New York, American Media, Inc., the owner of the National Enquirer, admitted to “working in concert” with the 2016 Trump campaign to buy the story of another woman who claimed to have had an affair with Trump, the former Playboy model Karen McDougal. “AMI further admitted that its principal purpose in making the payment was to suppress the woman’s story so as to prevent it from influencing the election,” federal prosecutors said in a news release at the time. At the National Enquirer, this policy of buying stories and not publishing them was referred to as “catch and kill.”
Shortly before the 2016 election, editors at the National Enquirer had discussions with Daniels’s lawyer, the now disgraced—and imprisoned—Michael Avenatti, about buying Daniels’s story, too. In the end, according to prosecutors, the Enquirer referred Daniels to Cohen, who subsequently wired the hundred and thirty thousand dollars to an account controlled by Daniels’s attorney. “The timing suggests that Trump was motivated by the election,” Jennifer Rodgers, a former federal prosecutor who now teaches at N.Y.U., told me. “Then there is the deal with Karen McDougal, which the National Enquirer did for him and said explicitly that it was for the election. That is an obvious motivation that prosecutors will argue was present, and which would make Trump guilty of the violation. He can argue otherwise, but that is what a trial is for. It will be up to the jury to decide.”
If Bragg does bring charges, Trump’s lawyers are likely to ask a judge to dismiss them before trial. Trump’s side could argue that a defendant can’t be prosecuted for federal campaign violations in a state court, and, therefore, Bragg’s office doesn’t have jurisdiction to bring the case. His lawyers may also point out that federal prosecutors closely examined the payments to Daniels during their investigation of Cohen and declined to bring charges against Trump. Appearing after Tacopina on “Meet the Press,” Preet Bharara, the former U.S. Attorney for the Southern District, whom Trump fired, conceded that his former office “chose not to bring the case.”
This history provides some attack lines for Trump’s supporters, but it’s not clear how relevant it will turn out to be in legal terms. Goldfeder said that Bragg could charge the former President with violating New York campaign laws, an area where his office clearly does have jurisdiction, rather than federal campaign laws. One option for Bragg, Goldfeder said, would be to accuse Trump of making a contribution in kind to his campaign and masking the source of the money, which would be a violation of state law. Another option, Goldfeder added, would be to rely on the language of state election law 17-152, which states simply that it is a campaign violation for two or more people to conspire to further a political candidacy “by unlawful means”—without specifying those means. “That is the key language,” Goldfeder said. He added that it could well be applied to what Trump and Cohen did.
Rodgers told me that she fully expects Trump’s attorneys to make a pretrial argument that Bragg’s case is flawed as a matter of New York law. “But I would be surprised if a judge would toss it out before trial,” she said. “The legal argument doesn’t seem clear-cut to me at all.” With the 2024 Presidential primary season fast approaching, there is obviously a great deal of interest in how quickly the case would proceed. Goldfeder said that if Bragg does bring an indictment and the Trump side files a motion to dismiss, the legal arguments on that matter could take just a few weeks, and then, assuming the judge ruled in favor of the District Attorney, the court could expedite a trial date. I asked whether there could be a trial this year. “Oh, yes, absolutely,” Goldfeder replied. ♦
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