The public can now read Manhattan District Attorney Alvin Bragg’s indictment against former President Trump, as well as his more voluble “statement of facts”, but the speculation and leaks of recent weeks were well informed. There are few surprises, except perhaps astonishment that Mr Bragg’s case looks even weaker than we expected.
Mr Trump “repeatedly and fraudulently falsified New York business records to conceal criminal conduct that hid damaging information from the voting public during the 2016 presidential election,” the DA says. The charges are based on the $US130,000 that former Trump fixer Michael Cohen paid to hush up Stormy Daniels about her alleged affair with Mr Trump. Mr Cohen was reimbursed via a monthly retainer “disguised as a payment for legal services”.
The 34 counts in the indictment are each for an individual business record: invoices from Mr Cohen, reimbursement checks from Mr Trump, ledger entries at the Trump Organisation. Mr Bragg has padded the indictment this way to include nearly three dozen counts, but they describe the same conduct. The DA’s statement of facts also brings up Mr Trump’s co-ordination with the tabloid mavens at the National Enquirer to kill other allegations, but this is superfluous window dressing.
Here’s the big question that Mr Bragg still hasn’t adequately answered: Where is the second crime? Recall that falsifying business records is a misdemeanour in New York. It’s a felony only if the books were cooked with “an intent to commit another crime or to aid or conceal the commission thereof.” When Mr Trump worked out this reimbursement arrangement with Mr Cohen, what other crime was he allegedly trying to cover up?
The leading theory going into Tuesday was that Mr Bragg would claim a violation of campaign-finance laws, and he does. The $US130,000 to Ms Daniels “was illegal,” the DA says flatly, noting that Mr Cohen “has since pleaded guilty to making an illegal campaign contribution and served time in prison.” But Mr Cohen’s guilty plea hardly makes this point indisputable, and in fact Mr Cohen seems to regret lately how he handled his case.
He also pleaded guilty to tax evasion. “The lies by the Southern District of New York against me for the tax evasion, I actually hope it comes out,” Mr Cohen told CNN last week. “I have all the documents to show. There was no tax evasion.” Is this the guy Mr Bragg is hoping to make into his star witness?
Brad Smith, a former member of the Federal Election Commission, has argued the money to Ms Daniels didn’t constitute a campaign expenditure. “People pay hush money even if they’re not running for office. They buy clothes, get haircuts, settle lawsuits, make charitable contributions,” Mr Smith wrote on Twitter.
Political candidates also buy clothes, maybe more expensive ones than they otherwise would, but that doesn’t make it a campaign expense.
At a press conference Tuesday, Mr Bragg was given a second shot to explain what other crime Mr Trump was supposedly covering up. The DA cited the federal cap on campaign contributions, as expected. But he also brought up “New York State election law,” which “makes it a crime to conspire to promote a candidacy by unlawful means.” Mr Bragg then mentioned “statements that were planned to be made to tax authorities.” Planned to be made?
After dragging the country through the first indictment of a former President in U.S. history, Mr Bragg owes the public a better explanation of his theory of the case. His unclear and evasive reply Tuesday isn’t helping his cause, and the country shouldn’t have to wait for months to find out the answer. Some news reports say Mr Trump’s next court appearance is probably on the docket for December.
That’s only about a month or two before the Iowa caucus is supposed to take place. What timing. Mr Trump is being indicted for conduct that happened in 2016. Federal prosecutors already examined this activity and apparently decided to let it drop. Seven years later, after a halting local investigation, an elected Democratic DA has indicted Mr Trump, in a case that could finally come to a resolution right in the middle of the 2024 primaries.
The question that keeps smacking us upside the head is whether this case would have been brought against any defendant not named Donald Trump. It’s hard to avoid answering no. How it will affect Mr Trump’s 2024 candidacy is anyone’s guess. Maybe the better question is how it will affect the public’s view of justice.
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