Looming indictment of Donald Trump in New York may be too ‘weak’ a case, experts say

As prosecutors in New York reportedly prepare to indict Donald Trump, legal and political experts are publicly doubting the case.

Donald Trump. Picture: Eva Marie Uzcategui/AFP

As prosecutors in New York reportedly prepare to indict former US president Donald Trump, legal and political experts are publicly doubting the wisdom of doing so, arguing that it could undermine future, stronger cases against him.

Mr Trump is currently under investigation in multiple jurisdictions, for everything from his handling of classified documents to his conduct after losing the 2020 presidential election to Joe Biden.

He appears to face the greatest legal peril in Georgia, where prosecutors are investigating his efforts to pressure election officials into falsely declaring him the state’s winner.

But the first charge against him is poised to come from the Manhattan District-Attorney’s office, which has been investigating him for allegedly orchestrating a plot to pay hush money to adult film actress Stormy Daniels before the 2016 election.

Mr Trump’s former personal lawyer Michael Cohen, who is now an outspoken critic of his one-time boss, has already been convicted of violating campaign finance laws by paying Ms Daniels $US130,000 to keep quiet about an alleged affair with Mr Trump.

Cohen has long alleged he was directed to make the illegal payments by Mr Trump. The former president continues to deny he even had an affair with Ms Daniels.

Former US president Donald Trump. Picture: Eva Marie Uzcategui/AFP

Ms Daniels said the affair did happen. Picture: Robyn Beck/AFP

Of all the charges Mr Trump could potentially face from the suite of investigations into him, this is arguably the least significant. And Mr Trump’s political opponents fear he could use it to impugn the legitimacy of any other looming indictments.

Politico’s White House bureau chief, Jonathan Lemire, reports there is “concern” among Mr Trump’s opponents, including “senior members of the White House”.

“(They) fear that because this case is weakest, that if it is brought first, it will potentially allow Trump to then paint this one as illegitimate, and then suggest that all of the other cases against him are as well. That is something they’re worried about,” Lemire, who is also a host on MSNBC, said on air.

We cannot know the full details of the case until there is an actual indictment, though it would hinge on Mr Trump’s alleged attempts to cover up the payments to Ms Daniels.

He could be charged with a misdemeanour for falsifying business records (the allegation being that he tried to hide the payments by classifying them as something else). More seriously, Mr Trump could also be charged with a felony offence for falsifying records to conceal another crime (the other crime being a campaign finance violation).

The felony offence would be harder to prove, as The Washington Post’s Ruth Marcus has explained in some depth.

“Look, I’m not saying don’t prosecute Trump but it does seem bizarre to me, and typically lucky for Trump, that the first of multiple potential indictments against him may end up being the weakest one of all,” another political commentator, Mehdi Hasan, said.

Donald and Melania Trump. Picture: Eva Marie Uzcategui/AFP

Legal experts have expressed similar sentiments.

“This one is probably the least threatening in terms of the jail time. It’s also a little bit challenging (for prosecutors) because it’s older,” former federal prosecutor Shan Wu told CNN when asked how this case might stack up against others.

“It would have been low on the radar screen. The Georgia one is much more developed, and obviously the January 6 and Mar-a-Lago classified documents cases are massive, sprawling investigations with very serious consequences.”

US attorney Chuck Rosenberg offered a slightly different view, and an alternative definition of “weak”, during an interview with MSNBC.

“People keep referring to the New York case as the weakest case. To me, as a former prosecutor, ‘weak’ means a case where the evidence is thin, or perhaps you don’t have a reasonable probability of a conviction,” said Mr Rosenberg.

“What I think they might mean is that it’s the less serious case. And how serious a case is reflected in how it is categorised or classified. In this case, under New York state law, it is a misdemeanour. It’s admittedly less serious.

“It doesn’t make it a weak case. If you look at it from the perspective of a prosecutor, you bring your case when it is ready. So it would be a political decision to bring it too soon for some other purpose, or to wait for some other purpose.

“If the case is ready, and as the elected prosecutor in Manhattan you believe it is an appropriate charge, you bring it. It may be less serious than the other cases out there, but that doesn’t make it weaker.”

Former US president Donald Trump. Picture: Cliff Hawkins/Getty Images

Mr Trump’s political allies, for their part, have pre-emptively attacked District-Attorney Alvin Bragg and accused him of pursuing the former president for political reasons.

“Lawyer after lawyer after lawyer will tell you this is the weakest case out there,” House Speaker Kevin McCarthy, the most senior Republican in Congress, said on Sunday.

“The last thing we want to have is somebody putting their thumb on the scale simply because they don’t agree with somebody else’s political view. That is what’s wrong, and that is what infuriates people. And this will not hold up in court.”

At a press conference, Mr Trump’s most likely rival for the Republican presidential nomination in 2024, Florida Governor Ron DeSantis, managed to make the same point while also having a potshot at Mr Trump’s conduct.

“I don’t know what goes into paying hush money to a porn star to secure silence over some type of alleged affair, I just can’t speak to that,” said Mr DeSantis.

“But what I can speak to is, if you have a prosecutor who is ignoring crimes happening every single day in his jurisdiction, and he chooses to go back years ago to try to use something about porn star hush money payments, that’s an example of pursuing a political agenda.”

Mr Trump’s vice president Mike Pence, with whom he has fallen out, warned a prosecution in New York would be “politically charged”.

And Mr Trump himself has spent recent days posting a series of tirades in all-caps on his social media site, Truth Social.

Under this barrage of criticism, Mr Bragg emailed his staff to say he would “not tolerate attempts to intimidate” them or “threaten the rule of law in New York”.

Originally published as Looming indictment of Donald Trump in New York may be too ‘weak’ a case, experts say