Alvin Bragg’s Case Against Trump: Four Things to Know
Alvin Bragg’s Case Against Trump: Four Things to Know
It’s the one criminal case against Trump likely to conclude before Election Day.
NEXT MONDAY, THE NEW YORK JUDGE overseeing the criminal hush money case against Donald Trump, Justice Juan M. Merchan, will hold a hearing to determine whether to further delay the trial. Monday was supposed to mark the start of the trial itself, but Merchan pushed it back it last week until at least mid-April. The indictment in this case, brought a year ago by Manhattan District Attorney Alvin Bragg, was the first of the four criminal cases lodged against Trump since he left office, and probably the weakest.
But Bragg’s case may be the only one of the four that could actually go to trial before the November election. Here’s why: The Georgia election-interference case brought by Fulton County District Attorney Fani Willis was always too complex to reach a verdict before voters go to the polls, and the conflict-of-interest sideshow regarding her undisclosed romantic relationship with a coworker only slowed things down further. The Supreme Court’s acceptance of Trump’s appeal of the lower courts’ denial of complete immunity in the January 6th prosecution in federal court in Washington, D.C. means that—depending on how the conservative justices rule—the trial in that case brought by Special Counsel Jack Smith would begin in late summer at the earliest, but more delays would not be surprising, and a verdict before the election is highly unlikely. And in Jack Smith’s other case, the Mar-a-Lago classified documents matter in federal court in Florida, Judge Aileen Cannon, a Trump appointee, seems to be playing games with procedural rules. She recently denied Trump’s motion to dismiss the Espionage Act counts, only to invite him to renew the motion at trial. If she grants it at that point, the Constitution’s ban on double jeopardy will have attached because the jury will already be empaneled and hearing evidence. So even if the Eleventh Circuit would be inclined to reverse her, which it probably should if she rules for Trump that the Espionage Act (which has been around since 1917 and so far has operated constitutionally) is unconstitutionally vague, the Constitution would ban a second trial.
That leaves, for the moment, the Manhattan indictment. That case has been delayed and complicated by its own series of machinations. But because it’s now the only realistic opportunity for Trump to be held accountable for any of his countless misdeeds before the election, it’s worth knowing what that case is about and the reasons for the delay. Here are four points to keep in mind:
1. The case is legally and factually complex, making it harder for a jury to embrace a narrative that justifies a conviction.
The indictment charges Trump with falsifying business records with intent to defraud, which is a misdemeanor under New York law unless done to cover up another crime. As it stands, the felony requires Bragg to prove that Trump’s intent to defraud included an intent to commit another crime or to aid in concealing that other crime. Bragg has alleged that there are multiple second crimes, including violations of federal election laws—which are not state crimes, mind you, and which the Justice Department declined to prosecute against Trump.
The theory is that in October 2016, Trump and his handlers created fake invoices, ledger entries, and checks to cover up $130,000 in hush money payoffs to adult film star Stormy Daniels to keep secret her prior sexual relationship with Trump (which she has since publicly described). Paying someone off to keep quiet about embarrassing information is not illegal—unless it’s done to cover up a crime or if keeping it confidential is itself a violation of another law. Bragg’s theory is that those payments were internally logged and disguised as legal fees in various business records. The fees were paid through a shell company created by Trump’s former lawyer and fixer, Michael Cohen, who pleaded guilty in federal court to criminal tax evasion and campaign finance violations in connection with the same scheme. Cohen is presumably prepared to testify in the Bragg case that Trump directed him to make the payment. He also helped arrange a $150,000 payment from the publisher of the National Enquirer to former playboy model Karen McDougal, who is also expected to testify in the Manhattan trial.
Because these hush money payoffs were made the month before the 2016 election, Bragg will argue, the concealment efforts were done to help get Trump elected and constituted an illegal campaign contribution or expense under federal law, which should have been disclosed to the Federal Election Commission. Among other theories, Bragg is also prepared to assert that they violated New York election law, which makes it a crime “to conspire to promote a candidate by unlawful means.”
So this is a crime to cover up a crime—a lot for the jury to grasp, putting pressure on Manhattan prosecutors to run a clean and carefully orchestrated trial.
2. As in the January 6th case, the charges against Trump in Manhattan are legally novel and untested.
The Manhattan D.A. has used falsification of business records many times before, but usually as an “add-on” charge in cases that included other, separate felony charges. Moreover, Manhattan prosecutors have never used a federal crime as the predicate charge to bump up a charge of falsification of business records from a misdemeanor to a felony, while DOJ declined to charge Trump with that underlying crime on its own. The notion that hush money payments constitute a campaign contribution under federal election laws is itself debatable. Cohen pleaded guilty to that charge, but because it was a plea and not a jury verdict, it doesn’t operate as the kind of legal precedent that could shore up the theory underwriting Bragg’s case.
In 2011, former Democratic presidential and vice presidential candidate John Edwards was criminally tried for allegedly violating campaign finance laws by soliciting nearly $1 million from donors to hide an extramarital affair during the 2008 campaign. A North Carolina jury found him not guilty on one charge and deadlocked on five others. Edwards argued that the funds were gifts from friends and that his intent was to keep the truth about the affair from his dying wife, not to protect his campaign. While Trump has no similarly compelling excuse, the underlying notion that hush money paid out by a candidate for federal office should be considered a campaign contribution or expense, again, is not well established. Trump so far has lost his bid to dismiss the indictment, but arguments similar to the ones he made in those motions could persuade a jury that there’s no crime there.
3. The current kerfuffle over 100,000 documents DOJ recently gave to Trump won’t result in dismissal of the indictment, either.
In response to a subpoena Trump’s lawyers sent to DOJ in January, the Justice Department gave Trump a trove of documents collected in connection with the Michael Cohen investigation and prosecution, and Trump is using the late arrival of the materials to cry foul. Cohen himself has been seeking this information for years, and he reportedly only received the first installment on March 11 of this month—and when he got his packet, it contained only 32 pages. Why DOJ dragged its feet is mostly unclear, except that some of the witness statements produced—called FBI “302s”—were only prepared in December 2023, so they could not have been disclosed earlier.
Trump is seeking to throw the case out on the rationale that Bragg unlawfully withheld so-called “Brady material,” which amounts to exculpatory or impeachment evidence that a defendant can use to show his innocence. (In a 1963 case called Brady v. Maryland, the Supreme Court held that failure to turn that stuff over is a violation of the Due Process Clause.) The problem for Trump is that Bragg didn’t have this information, either—so there was nothing for the Manhattan D.A. to disclose, and therefore no valid claim that Brady was violated. That said, Bragg agreed to a short delay to allow his office and Trump’s lawyers to review the information. In a recent filing, Bragg stated that only around 270 documents are new and relevant to the case against Trump, and they mostly help the prosecution. This means that in all likelihood, the trial will go forward in April. The judge will decide on Monday.
4. The $464 million civil fraud judgment against Trump is unlikely to make its way into evidence in the Bragg case—unless his lawyers allow him to testify or make arguments about his “good” character.
Trump is reeling over the looming deadline for putting up a bond to cover the gargantuan judgment in the separate civil fraud case involving his false inflation of assets for purposes of securing loans. His lawyers told Justice Arthur Engoron that he tried thirty different bond companies but nobody will help him. (He did manage to get one such company to cover the $92 million of judgments in the E. Jean Carroll defamation cases.) On Thursday, Engoron directed Trump to provide details of his predicament to a court-appointed monitor, former federal Judge Barbara Jones, who will undoubtedly sniff out if he is duping the court (after all, the judgment itself is based on multiple lies to multiple creditors).
If Trump can’t secure a bond by March 25, he won’t be granted an automatic stay—a pause in the collection of the money he owes—and New York Attorney General Letitia James can begin the process of seizing his assets, including real estate, to satisfy the judgment.1 That process is hardly straightforward, as the judgment issued out of New York and his real property is all over the world. Ownership is also undoubtedly layered with shell companies and other legal complexities that will make the assets hard to reach—or at least cause long delays before New York can get paid. Trump could protect himself from this exposure now if he files for bankruptcy, which his businesses have done numerous times before, but his campaign is apparently weighing whether the spectacle of an asset seizure process will give him a boost in the polls (it might) or whether declaring bankruptcy or inviting publicity over his lavish personal holdings yet again might cost him some support (who knows). There’s also the disturbing specter of foreign governments and other high-asset entities and individuals approaching Trump with offers to loan him the half-billion dollars to cover the judgment—in exchange for who-knows-what. This makes him, the Republican nominee for president for a record-tying third time, an acute national security risk.
But we knew that already.
Correction (March 23, 2024, 8:00 a.m.): Due to an editing error, this article originally said that “if Trump can’t secure a bond, he can’t appeal the judgment” in the civil fraud case for which he owes $454 million. The relevant sentence has been corrected to reflect that he can appeal but won’t be granted an automatic stay pausing the collection of what he owes.
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