It is clear from the accusations filed against Donald Trump that Manhattan District Attorney Alvin Bragg (D) intends to rely heavily on campaign rules to prosecute the former president for concealing his repayment of hush money payments.
But, allusions to tax law crimes are scattered throughout charging documents and public remarks from Bragg, suggesting New York prosecutors may be hedging their chances by filing a broader case against the ex-president.
During his arraignment on Tuesday, Trump was charged with 34 felonies, all of which arise from a deal he allegedly struck with fixer Michael Cohen following his $130,000 payment to adult film star Stormy Daniels. Prosecutors argue the “unlawful scheme” broke election laws, which forms the basis of the falsification of business records allegations on which the prosecution rests.
“The defendant orchestrated a scheme with others to influence the 2016 presidential election by identifying and purchasing negative information about him to suppress its publication and benefit the defendant’s electoral prospects,” Bragg’s office wrote in a statement of facts accompanying the bare-bones indictment.
In this case, Trump reimbursed Cohen for a hush-money payment that was perfectly legal but was disguised as “legal expenses” to avoid detection. Business record falsification is a misdemeanor in New York, but if done to cover up another crime, it is elevated to a felony.
According to Bragg, whose office is located in the world’s financial capital, the financial crimes on which the prosecution of Trump is based are the “bread and butter” of his department.
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Yet by pinning so much of the case on election statutes, Bragg ventures into more complicated ground, having to deal with Trump’s status as a federal candidate in the state-level prosecution and proving that the payments were designed to influence the election. Two voting laws that Bragg claims Trump broke were listed by Bragg.
“The scheme violated New York election law, which makes it a crime to conspire to promote a candidacy by unlawful means. The $130,000 wire payment exceeded the federal campaign contribution cap,” he said.
The choice of state law by Bragg is illuminating. By using this act, the prosecutor avoided using others available under New York law, such as those dealing with state campaign finance offenses, which contain language that might be problematic when applied to a federal candidate.
However, Cohen pleaded guilty to the federal offense of exceeding contribution limitations for political campaigns, which will need evidence that the money was spent to influence the election. Trump’s legal team is already fighting back against both of them.
They say Trump’s motivation for paying off Daniels through Cohen wasn’t to win the election but to save his marriage by putting to rest rumors of an affair he denies ever having. They also argue that a federal prosecutor would be required in order for the state to bring federal charges against Trump, as he is a federal candidate.
“We’re not going to get to a jury… I think this case is going to fall on its merits, on legal challenges well before we get to a jury,” Trump attorney Joe Tacopina said in a Wednesday morning interview on NBC News.
It seems as though Bragg has evidence that Trump considered the compensation in light of the outcome. Court filings paraphrase Trump’s claimed comments to Cohen as follows: “If they could delay the payment until after the election, they could avoid paying altogether because at that point it would not matter if the story became public.”
Democratic impeachment attorney Norm Eisen has urged Bragg to file charges against Trump under both federal and state election rules.
“Look, it can’t be that Donald Trump lives in some special universe when neither state nor federal campaign law applies to him. It has to be that one or the other applies, and I don’t think that a judge is going to buy into that Catch-22,” he told The Hill.
Bragg, however, said there could be further expenses.mAccording to the sworn statement, Trump’s team overstated payments to Cohen to cover the fixer’s potential tax liability related to the money being treated as income rather than a reimbursement.
“If Trump knows about that, was aware of that, and approved of the falsification of the records in order to conceal the hush money payments and in order to allow Michael Cohen to get a full repayment for the hush money payments he had made, then the tax violation here — offering a false instrument for filing — is in fact one of the crimes that are being covered up through the falsification of business records,” said Josh Stanton, an attorney with Perry Guha who has penned analyses of Bragg’s case.
There is a claim in the documents that Trump and others “mischaracterized, for tax purposes, the true nature of the payments made in furtherance of the scheme,” but when pressed for clarification, Bragg refused to answer.
The Hills have tweeted the following in relation to the Trump case, which you can view below:
At a press conference with reporters right after Trump’s arraignment ended, he remarked, “I’m not going to go beyond the straightforward language of the statement of facts, we think it speaks for itself.” According to Eisen, Bragg does have more legal leeway to work with thanks to the tax statute. It is not likely that attorneys will return to court until December.
“The DA is notifying Trump and all of us that this may be an issue that he will litigate at trial. You know, it’s very common for prosecutors to cast a broad net and then to focus in on their case,” Eisen said.
“Think of it this way. There’s two campaign finance [violations]. There’s state campaign finance violations; federal campaign finance violations — that’s belt and suspenders. This is an additional possibility. Think of it as belt, suspenders, and duct tape. He’s taking no chances on holding up his case, and there’s nothing wrong with that.”
Trump pled not guilty on all 34 allegations on Tuesday, but it is unclear what charges Bragg intends to pursue. Trump’s legal team needs to file a bill of particulars to learn more about Bragg’s allegations.
“They do not have to specify the crime at this juncture, they will have to down the road. And the best way to read the sprinkling of the reference to potential tax violation is that they are clearly reserving the right to use that state tax statute as a third way of elevating what would ordinarily be a misdemeanor into a felony,” said Jeff Robbins, a former prosecutor now in private practice.
Trump himself wrote at least nine of the dozens of cheques to Cohen that are included in the indictment. Stanton said that it is common practice for prosecutors to withhold information in order to strengthen their case.
“This is a lot of counts, but it’s really a simple indictment: Trump is charged with falsifying business records in his repayments to Michael Cohen through 11 checks in 2017, including nine he signed personally,” he said.
“The detailed Statement of Facts makes plain that Bragg is pursuing both campaign finance violations, as well as tax offenses to bump up the charges to felonies. He need not say that outright in the indictment. Indeed, that’s normal.”
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