Manhattan District Attorney insiders fear the Trump-Stormy Daniels Alvin Bragg Hush Money Case is a weak sauce

The indictment Manhattan District Attorney Alvin Bragg is currently bringing against former President Donald Trump — over his payment to silence a porn star over her sexual affair — is based on a crime so flimsy it never did as a separate criminal proceeding to three attorneys who worked on this investigation.

These insiders spoke to The Daily Beast on condition of anonymity as they are not authorized to discuss the ongoing criminal investigation.

A grand jury could soon decide whether Trump will be indicted for falsifying business records and circumventing campaign finance laws when he used his company – the Trump Organization – and his personal “fixer” – Michael Cohen – to tacitly appeal to the adult movie star Stormy paying Daniels hush money to keep disclosure from derailing his 2016 presidential campaign. Journalists from around the world are now staking out a courthouse in downtown New York City awaiting the possible arrest of the former American President.

But this criminal investigation is only a small part of a much larger criminal investigation into Trump’s lies to banks, insurance companies and government agencies.

Bragg, who took over the investigation from his predecessor, Cy Vance Jr., closed operations shortly after joining the office – and only recently resumed this narrow part as a single case.

His decision to bring back the so-called “zombie” case surprised several insiders who have been briefed on the various iterations of the Stormy Daniels case over the years.

“The Stormy case was the simplest and most straightforward, but risks being nothing more than a misdemeanor. The business fraud case carried more weight but was complex and wide-ranging and much more difficult. There was never any discussion of breaking them up,” a source told The Daily Beast.

What first drew prosecutors to the case was how the Trump Organization repaid Cohen in separate checks spread over a year and engaged in a monthly cover-up using this private deal, while Trump was in the White House.

But New York County prosecutors never considered prosecuting the hush money case alone because investigators on the prosecutor’s Trump team couldn’t even agree on whether Trump committed a felony.

Falsifying business records is merely a misdemeanor in New York, and three sources said Vance would not green light an indictment that would involve a historic criminal prosecution action against a former president – all to save Trump less than a year in the notoriously violent prison of the city to land Rikers Island.

Still, they noted that if business records were falsified to commit or conceal one, this particular charge could be escalated into a felony separated Crimes – a fact that prosecutors have wrestled with for months. A recent comprehensive memoir by a former prosecutor, Mark Pomerantz, who previously led this team, goes into great detail how he had to resort to building a “creative legal theory” to prosecute the case.

One version held that this local prosecutor’s office linked the state charges to the federal crime; After all, the whole idea was that Trump had failed to publicly properly record the hush money payment in scrutinized reports submitted to the Federal Elections Commission. But chaining state-level business records charges to an alleged federal crime would open a Pandora’s box, according to a source, because it would conspicuously emphasize that this should have been a federal case instead.

And that was quite a risk, because the US Attorney’s Office for the Southern District of New York had already decided not to indict Trump.

Federal prosecutors aggressively went after Cohen, even classifying Trump as “Individual-1,” but they stopped there. Federal authorities granted immunity covenants to obtain incriminating information from the Trump Organization’s chief financial officer, who canceled the checks, Allen Weisselberg, and the National Investigator Media executive who helped broker the hush money deal, David Pecker.

“The hush money case had no specific state indictment. It should have been the FBI,” said a second person who spoke to The Daily Beast.

Even the assistant district attorneys and their outside counsels were unsure whether this novel approach would even stand up in court.

“DANY would have to argue that intent to commit or conceal a federal crime turned the falsification of the records into a felony. No New York appellate court has ever affirmed (or denied) this interpretation of the law,” Pomerantz wrote People vs. Donald Trump: An insider account. “There was a great risk that felony charges would be dropped before a jury could even consider them.”

The second version of the DA team was even more extensive. This consisted of tying the business records charge to a crazy underlying crime: Stormy Daniels’ attempts to sell her story on the eve of the 2016 election as her attempt to blackmail Trump. In his book, Pomerantz concedes that this is “a somewhat awkward construction” that would pretend that “Trump was actually a victim of extortion.” That would turn Trump’s payment into money laundering, he thought. But the theory of what Pomerantz called “soft-core blackmail” has been raised on its own petard.

“From a legal point of view, the hush money payment has not turned into dirty money so far [Stormy Daniels] received it, so neither Cohen nor Trump committed money laundering by sending it,” Pomerantz wrote in his book.

According to the book, Vance twice hired outside attorneys — a rare move almost unheard of for such a law enforcement agency — to investigate the matter. Vance decided against any criminal charges in late 2019 and reconsidered the decision in early 2021, but ultimately decided against it.

The final nail in the coffin, however, seemed to come when Bragg inherited the case in early 2022. In his book, Pomerantz recalls a February 9, 2022 meeting where Bragg said he “couldn’t see a world.” which he would use Cohen as a witness to impeach Trump. On Tuesday, a bureau spokeswoman said four people present at the meeting denied the recollection.

Joe Tacopina, one of Trump’s defense attorneys in the case, told The Daily Beast that he was not surprised that attorneys long associated with this investigation have reservations about turning Stormy Daniels’ matter into a separate criminal proceeding. “I spoke to two FEC Presidents. It’s not even close. I don’t understand how they could do that. It will eventually be thrown aside,” Tacopina said.

However, skeptics might see Bragg’s recent decision to hire a top Justice Department attorney as a way to allay concerns that the state case can’t stand on its own — or be somehow weakened by the DOJ’s decision not to indict Trump even after he’s out from office. Matt Colangelo, who left an extremely prominent position as the nation’s acting assistant attorney general, previously worked in the New York City Attorney’s Office on fraud investigations into Trump.

And Bragg apparently fell for Cohen, making him a key witness before the grand jury poised to indict Trump any day.

Still, these three sources hailed Bragg for taking on the case — noting that this may just be the first iteration of a larger investigation.

Karen Agrifolo, who was the former chief deputy attorney for years, said the Stormy Daniels case deserves more serious consideration than it has to date.

“I don’t agree with people who think this isn’t an important case. This was Donald Trump’s first attempt to interfere in an election. He did it in 2016 and again in 2020. In terms of what it represents, I think it’s significant,” she said, noting that prosecutors were wise to do it first since the statute of limitations could expire in May.

“The 11 payments to Michael Cohen — who then recorded false information in business records — were made by an acting President who was in the Oval Office at the time. I don’t know how anyone can take this as not being serious,” she said.