Donald Trump was indicted recently on 34 felony counts of falsifying business records – but New York City prosecutor Alvin Bragg’s case against the former president faces significant legal hurdles, experts told Fox News Digital.
The 2024 Republican presidential candidate pleaded not guilty to the raft of accusations against him and has characterized the legal offensive as a politically motivated witch hunt.
“If it wasn’t Donald Trump, no prosecutor in the world would have touched this,” said former assistant district attorney Daniel Bibb, who spent more than two decades trying murder cases in Manhattan. “If you and I did what Trump did, we never would have been charged.”
Trump is the first former or current U.S. president to be indicted for a crime, but the case is more half-court heave than slam dunk, experts say.
New York District Attorney Alvin Bragg had been investigating former President Donald Trump for alleged hush money payments to adult film actress Stormy Daniels. (Shane Bevel/NCAA Photos via Getty Images | Victor J. Blue/Bloomberg via Getty Images)
The indictment uses a novel legal theory and relies heavily on the testimony of the president’s former fixer Michael Cohen – a disbarred attorney and convicted liar.
Trump is accused of falsifying internal business records when he had Cohen arrange a $130,000 hush-money payment to porn star Stormy Daniels during his 2016 presidential campaign to keep her quiet about an alleged sexual encounter. He has denied the affair.
Michael Cohen’s credibility
Cohen, then an employee of the Trump Organization, used a shell corporation to pay off Daniels one month before the election.
After Trump’s victory, Cohen was reimbursed $420,000 disguised as payments for legal services rendered pursuant to a phony retainer agreement. The figure included the tax he’d have to pay on the income and a $60,000 bonus.
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Bragg alleged that former Trump attorney Michael Cohen orchestrated the hush money payments on behalf of Trump. (AP Photo/Mary Altaffer)
Bragg has argued that this payment was an illegal campaign contribution because it wasn’t disclosed and exceeded the amount allowed under federal law.
Cohen was convicted in 2018 of federal charges, including campaign-finance violations, for arranging hush-money payments to Daniels and former Playboy model Karen McDougal, who also claims she had an affair with Trump, which he has denied.
A few months later, Cohen pleaded guilty to lying to Congress.
After serving a stint in prison, Cohen grabbed a pen and wrote a book blasting Trump as “a cheat, a mobster, a liar, a fraud, a bully, a racist, a predator, a con man” and has continued to attack the former president in countless media interviews.
“If Michael Cohen told you today was Wednesday would you believe that unless you looked at your own calendar?” former Manhattan prosecutor-turned-criminal defense lawyer Mark Bederow told Fox News Digital.
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Bederow added that prosecutors would likely also have to call Daniels to the stand, who could be perceived by some as an unsympathetic opportunist.
She has repeatedly made contradictory statements to the press and has shown an insatiable appetite for media attention, the attorney said.
Unchartered legal waters
To bump up the misdemeanor charge of falsifying business records to a felony, the indictment alleges that Trump intended to commit or conceal a second crime.
The indictment doesn’t state what this second crime is, and Bragg said at a press conference he isn’t legally required to disclose it.
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But Bragg, when asked by a reporter, implied that Trump violated state and federal campaign finance and tax laws.
“The bottom line is that it’s murky,” said Richard Hasen, an expert in election law and professor at the University of California, Los Angeles law school. “And the district attorney did not offer a detailed legal analysis as to how they can do this.”
He added that it is not clear whether a case can be brought in state court if it involves a federal election law.
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At the press conference, Bragg suggested that Trump may have also violated a New York election law that makes it illegal to conspire to promote a candidate by unlawful means, and that he lied to state tax authorities when he mischaracterized the reimbursements to Cohen as income.
“If you bring an unprecedented case like this against a former president and current presidential candidate, it’s essential for the credibility of the criminal justice system to present a clear and cogent explanation of your theory as opposed to saying I don’t have to tell you,” Bederow said.
“If you come at the king, you best not miss,” he said, quoting the HBO hit “The Wire.”
Statute of limitations
Had Bragg charged Trump with 34 misdemeanor counts of falsifying business records, it would have been a breeze, said Bederow.
“It appears overwhelming that the way this was structured in terms of payments to Cohen as legal fees is false,” he said.
But the misdemeanor charges weren’t an option because the “two-year statute of limitations has 100%, no doubt, expired,” Bibb added, referring to the window of time prosecutors have to initiate a criminal case.
Donald Trump departs Trump Tower Thursday, April 13, 2023. The former president was scheduled to appear before New York State Attorney General Letitia James for a deposition that morning. (Felipe Ramales for Fox News Digital)
The time restraint on the felony charge is five years and appears to have passed, but this calculation isn’t straightforward.
New York law has a provision called tolling, which stops the clock whenever a defendant leaves the state. If Trump was in Washington, D.C., or Florida, those periods of time aren’t counted. COVID-19 also paused the statute of limitations for a significant period of time.
While Bragg’s case may have some challenges, he does enjoy a vital edge, Bederow said.
“This is Manhattan, so the DA has an overwhelming home-court advantage,” the attorney told Fox News Digital of the solidly blue borough. “If you put Donald Trump on trial for the Kennedy assassination, a Manhattan jury would probably find he’s the guy in the grassy knoll.”
The Associated Press contributed to this report.
