Thoughts on Alvin Bragg's Legal Justification for Charging Trump
Alvin Bragg's Legal Reasoning Is Convoluted Beyond All Measure
Alvin Bragg’s indictment of Trump is among the most egregious acts of prosecutorial misconduct in US history. His argument is so riddled with absurdity that it is a challenge to determine which of the myriad refutations to focus on. Bragg is claiming that Trump misclassified a reimbursement to his lawyer for an NDA payment as a legal expense when it should have classified as a campaign expense, and that this constitutes a felony because this reimbursed expense was, in fact, hiding an illegal campaign contribution. If this charge sounds contradictory and casuistic, that is because it is.
Here are just a few points that can be levied against Bragg’s argument.
There was no criminal act:
1) This was a personal expense, not a campaign expense. It is hard to argue that paying off an extortionist is a campaign expense given the range of motives a person might have for doing so: Including avoiding a divorce, keeping one’s family intact, maintaining standing within the community, etc.
One thing is for certain: Trump would not have been allowed to pay Stormy Daniels using campaign funds. He would not have been permitted to classify the money as a campaign expense himself—the tax authorities would insist it be classified as a personal expense. It is very strange to argue that something that could never have been paid for using campaign funds should, nonetheless, be considered a campaign contribution. Of course, strange arguments that defy common sense are very beloved by the leftist establishment.
2) The ‘contribution’ was quickly reimbursed. Even more importantly, how is a reimbursed expense a campaign contribution? The prosecution's theory of the case requires the money to be a contribution but simultaneously charges Trump with an offense because the reimbursement was misclassified as a legal expense. However, if it was promptly reimbursed, in what sense is it a contribution? Apparently, basic logic is not part of Harvard’s curriculum.
3) Cohen’s actions were not a campaign contribution. Even if you consider Cohen’s payment to Stormy a loan, loans constitute a campaign contribution only if the terms are unusually favourable: The terms of the loan were, in fact, usurious. For this 130K loan, Cohen was paid 360K plus a further 60K bonus. The terms of this loan can in no way be considered a campaign contribution.
4) The whole purpose of a nondisclosure agreement is nondisclosure. Nondisclosure agreements are, in fact, legal expenses and are classified as such. No one has ever written on a nondisclosure agreement what it was for: That completely defeats the point. Other politicians who have paid hush money have classified those payments as legal expenses, and no other politician has ever been charged with a crime for doing so.
Trump lacked mens rea:
5) Trump did not keep his own books. They cannot prove that Trump was responsible for the misclassification and not someone else in his organization who saw that the check was made to Trump’s lawyer and assumed it was a legal expense. Trump obviously does not keep his own books. Alvin Bragg will never be able to show
6) There wasn’t any clear intent to deceive or defraud. Even if Trump was involved directly in the bookkeeping, Bragg cannot prove that Trump did not sincerely think of it as a personal legal expense: The fact that trained lawyers disagree about how the expense should be classified demonstrates that Trump may have thought he was classifying the expense correctly. (Trump and his lawyers are, in fact, correct. It is a personal legal expense and not a campaign expense.) Moreover, his personal sexual life is not something that affects Trump’s ability to carry out his office. By Alvin Bragg’s logic, FDR’s efforts to hide his polio and every other politician’s attempts to hide a sexual indiscretion from their past would be considered fraud. Why is someone’s sexual past relevant to their holding political office?
Purely legal arguments:
8) ‘In furtherance of another crime’ requires that other crime be within the jurisdictional competence of the court trying it (or proven in a separate trial by a court with appropriate jurisdiction). The campaign finance violation used to justify a felony charge is a federal crime. However, the state court lacks the authority to try federal crimes or to determine matters of fact concerning them; as such, the supposed campaign finance violation cannot be used to promote the charge to a felony. Without this, the charge amounts to nothing more than a petty misdemeanour, and the statute of limitations should apply.
8) The payment to Stormy Daniels was not a “thing of value” because Daniels was not providing a good or service but rather victimizing Trump through an act of criminal blackmail. Therefore, any loan offered to pay off that blackmail is also not a “thing of value” as far as campaign finance law is concerned.
9) The statute of limitations has expired. Extending the statute of limitations because Trump was “outside the state continuously” while serving as president is an abuse of the law. Bragg knew exactly where Trump was; his absence in no way impeded the DA’s investigation. Moreover, Trump maintained a residence and legal presence in the state during his presidency and returned to New York occasionally throughout his time in office.
Prosecutorial misconduct:
10) Cohen is not a credible witness. Lawyers have a legal obligation to present only credible witnesses to the jury. Cohen has admitted perjury and has changed his story regarding this affair several times. If Bragg does call him as a witness, he is likely to be torn apart on cross-examination. If he does not, the jury will wonder why a key witness never presented his testimony.
11) Bragg withheld exculpatory evidence from the grand jury. Bragg prevented the grand jury from seeing exculpatory evidence. This constitutes prosecutorial misconduct and could be grounds for dismissal. Bragg denied the grand jury access to hundreds of emails provided by Cohen’s former attorney which confirmed Trump’s story. Bragg even tried to prevent Cohen’s attorney, Robert Costello, from testifying.
12) Bragg is guilty of selective prosecution. The Manhattan DA is not pursuing similar cases against any Democrat. Indeed, no one has ever pursued a prosecution like this against anyone. The very fact that Bragg is using novel legal arguments suggests this prosecution is an act of partisan vengeance, not justice.
The Manhattan DA is embarrassing himself with this absurd farce. It is a publicity stunt that has no chance of working. It serves no purpose beyond further inflaming America’s political divides. It has already given Trump a bump in popularity: There is a reason no other prosecutor decided to pursue this angle: They all had more sense.
FWIW it is widely accepted at this point even amongst legal scholars on the left that this was the weakest possible case to pursue vigorously amongst the varied options. The only possible liberal silver lining would be the ensuing chaos propels him to be the GOP nominee and subsequently during the general election he is indicted on far more serious charges (say related to election interference in Georgia). This assumes they cannot get felony charges to stick here.
I just found the following article at Reason.com; I highly recommend it.
https://reason.com/2023/03/20/is-the-manhattan-d-a-upholding-or-flouting-the-rule-of-law-by-prosecuting-trump/?fbclid=IwAR1GvpoONjQnEfKPPiEO1o4zrp5zd-ykcZszb7wo_X179Fhyem_gjhKC39Y