Charges against Trump raise doubts about prosecutors’ case

The charges brought against Donald Trump by Manhattan District Attorney Alvin Bragg have caused differing opinions about the strength of the case, particularly as the former president is the focus of several investigations that have been argued carry greater legal liability could.

The indictment released Tuesday included 34 counts of falsifying business records related to payments allegedly made to silent former adult film star Stormy Daniels and former playboy Model Karen McDougal before the 2016 election.

The charges include bills from former Trump attorney Michael Cohen and various checks made in 2017. Trump has denied any involvement in any illegal activity or any affair with either Daniels or McDougal.

The Manhattan Attorney’s Office, citing court documents and court filing statements, notes that from August 2015 to December 2017 Trump orchestrated a “catch and kill” scheme through a series of payments that he then allegedly backed through months of falsehood has concealed business entries.

Bragg said Tuesday that “the trail of money and lies uncovers a pattern that People say violates one of New York’s most basic and fundamental business laws.”

“The people of New York state allege that Donald J. Trump repeatedly and fraudulently falsified New York business records to cover crimes that hid harmful information from the voting public during the 2016 presidential election,” Bragg added. “Manhattan is home to the country’s most important business market. We cannot allow New York City corporations to tamper with their records to cover up criminal behavior.”

The Wall Street Journal, in an editorial Tuesday titled “What’s Missing from the Charge Against Trump,” questioned the strength of the case. It cited the factual claims presented by Bragg’s office, in which Trump agreed with him National Investigator Killing allegations, “superfluous window dressing”.

“Here’s the big question that Mr. Bragg still hasn’t adequately answered: Where’s the second crime?” the editors read. “Remember, falsifying records is a misdemeanor in New York. It is a crime only if the books have been forged with the intent ‘to commit, or assist or conceal the commission of, another crime’. When Mr. Trump was drafting this reimbursement agreement with Mr. Cohen, what other crime was he allegedly trying to cover up?”

in one New York Times Karen Friedman Agnifilo, a former Manhattan assistant district attorney under Cyrus Vance Jr., and Norman Eisen, a senior associate at the Brookings Institution, argue that the section on the number of books and records in the indictment “is the bread and butter of the prosecutor’s office.”

Trump is the 30th defendant charged with crimes of false records in just over a year since Bragg took over Vance, with 151 such cases brought under the law.

“Each case has its unique characteristics, but bringing a crime forward with books and records is nothing new… When New York State law has been broken, there is nothing that can stop Bragg,” Eisen said news week by phone on Wednesday, adding that he was “confused” by those who say New York State law does not allow state books and records of crimes to be made a crime.

An analysis by Just Security, based at the Reiss Center on Law and Security at New York University School of Law, found that prosecuting first-degree business records forgery in New York was “commonplace” and used by prosecutors’ offices” around one to account for a wide range of criminal behavior, from the rather petty and simple to the more serious and highly organized”.

Agnifilo, in a phone interview with news week on Wednesday equated the question of the “second charge” in Trump’s case with a slump.

Such a case might be nothing more than a misdemeanor, she said, but it becomes a felony if you intend to commit a crime while in someone else’s home or property.

If someone goes to a stranger’s door and never commits a crime, but the police find a knife and a safecracker and a person in a black ski mask, “you can infer criminal intent.” If the person was carrying a pillow and sleeping bag, it could be argued that there was no intent to commit a crime.

You don’t have to prove it beyond a reasonable doubt, she said. Prosecutors can preside over juries.

“So you have to look at these things with all the surrounding facts and circumstances,” Agnifilo said. “The question here is not whether [Trump] committed the offense of forgery. The question is whether he was covering up a crime or intended to commit another crime.”

Conspiracy in and of itself could be a crime,” she added, although it remains unclear what potential crimes were presented to the grand jury when they considered intent “because intent is what it’s all about.”

“If you look at the circumstances here, because of the timing of the whole situation, it’s a lot more like the bank robbery charge than the sleeping bag and the pillow… There’s just so much evidence,” she said.

Agnifilo and Eisen acknowledge that a former president and his run for president in 2024 cloud the situation.

Agnifilo said the question was whether there was a different standard for a former president, adding that the law is administered differently based on the individual when one fails to bring such a case – which she saw as “a slippery slope”.

Eisen, who interviewed Cohen on numerous occasions as an impeachment attorney, said current arguments on the facts do not take into account the relative precedent and full body of evidence.

“Whenever you have a case against a former president, more questions will come up — and that’s the way it should be,” Eisen said. “It is also true that a former president should not be treated any differently than any other American. Anyone else who would have done so would be prosecuted based on state law based on these facts.”