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Analysis: Trump hush money case raises thorny legal issues

While the prosecution’s case is unusual, it’s not unwinnable, experts say
Former President Donald Trump gestures as he speaks at his Mar-a-Lago estate Tuesday, April 4, 2023, in Palm Beach, Fla., after being arraigned earlier in the day in New York City. (AP Photo/Evan Vucci)

The coverup is worse than the crime, the expression goes. And in the hush money case against former President Donald Trump, prosecutors say the coverup made the crime worse.

In an indictment unsealed Tuesday, prosecutors say the 45th president falsified records about three hush money payments in order to keep potentially damaging stories from coming to light as he campaigned for the presidency. Manhattan District Attorney Alvin Bragg said it was his effort to cover up crimes related to the 2016 election that allowed prosecutors to elevate the charges to felonies.

The indictment, however, raises many thorny issues about state and federal law that could provide openings for the defense to attack the charges to try to get them tossed before the case even gets to trial.

“The bottom line is that it’s murky,” said Richard Hasen, an expert in election law and professor at the University of California, Los Angeles law school. “And the district attorney did not offer a detailed legal analysis as to how they can do this, how they can get around these potential hurdles. And it could potentially tie up the case for a long time.”

Trump has railed against the charges, saying he did nothing wrong and the case is political persecution. In remarks from his Mar-a-Lago home just a few hours after his court appearance, he said, “This fake case was brought only to interfere with the upcoming 2024 election and it should be dropped immediately.”

In the end, the case isn’t about the tawdry details of the hush money payments. It isn’t about the porn actor — Stormy Daniels — or Trump’s acrimonious relationship with his onetime lawyer-turned-government witness, Michael Cohen.

It’s about a presidential candidate using his money and influence to silence potentially damaging stories that might make voters choose another candidate, particularly as Trump’s reputation was suffering at the time from comments he’d made about women.

The 34 counts of falsifying business records would normally be misdemeanors, lower-level charges that would not normally result in prison time. But they were bumped up to felonies — which carry up to four years behind bars — because, Bragg says, they were done in an effort to commit or conceal other crimes.

The $130,000 payment to Daniels exceeded the federal cap on campaign contributions, Bragg said. He also cited a New York state election law that makes it a crime to promote a candidate by unlawful means.

“That is what this defendant did when he falsified business records in order to conceal unlawful efforts to promote his candidacy, and that is why we are here,” one of the case prosecutors, Chris Conroy, told the judge Tuesday.

Prosecutors filed a “statement of facts” that told their story of a scheme to protect Trump’s presidential prospects by buying and suppressing unflattering information about him. Still, some legal observers were surprised that the indictment itself wasn’t more specific about how each of the charges was elevated to a felony.

“There are an awful lot of dots here which it takes a bit of imagination to connect,” said Richard Klein, a Touro Law Center criminal law professor. Bragg said the indictment doesn’t specify the potential underlying crimes because the law doesn’t require it. But given the likelihood of Trump’s lawyers challenging it, “you’d think they’d want to be on much firmer ground than some of this stuff,” said Klein, a former New York City public defender.

Hasen said it’s not clear whether candidates for federal office can be prosecuted in cases involving state election laws. The defense may also argue the case can’t be brought in state court if it involves a federal election law.

Prosecutors, however, also alluded to another accusation involving tax law: that Trump’s scheme included a plan to mischaracterize the payments to Cohen as income to New York tax authorities.

“They did talk about tax crimes, and I think that could be potentially more compelling for the jury,” Renato Mariotti, a former federal prosecutor, said on ABC News. “It’s a safer bet than the campaign finance crimes.”

While the prosecution’s case is unusual, it’s not unwinnable, experts said.

Bragg is “going to bring in witnesses, he’s going to show a lot of documentary evidence to attempt to demonstrate that all these payments were in furtherance of the presidential campaign,” said Jerry H.​ Goldfeder, a veteran election lawyer in New York and the director of Fordham Law School’s Voting Rights and Democracy Project.

“It remains to be seen if he can prove it beyond a reasonable doubt,” Goldfeder said. But, he added, “Do not underestimate District Attorney Alvin Bragg and do not overestimate Mr. Trump.”

Trump’s lawyers have painted Trump as a victim of extortion who had to make the payments to prevent false and embarrassing information from coming out. But they say the payments had nothing to do with the campaign.

It’s similar to an argument made by former Sen. John Edwards, the Democrat accused of funneling nearly $1 million in under-the-table campaign contributions to hide his pregnant lover during his 2008 run for president. Edwards had argued that the payments were a personal matter, intended to keep things secret from his wife. A jury acquitted the Democrat on one charge and deadlocked on other counts. He wasn’t retried.

The New York case is just one of many legal worries for Trump. Georgia prosecutors are also investigating Trump’s attempts by Trump and his allies to overturn his 2020 election loss in in the state. And federal prosecutors are investigating whether classified documents were criminally mishandled at Trump’s Florida home, as well as efforts by Trump and his allies to undo the results of the presidential election.

“Bringing a failed prosecution is just going to enable him to claim that it’s a witch hunt,” Hasen said of Trump. “And it might convince some people that all of the potential criminal cases against Trump are full of spurious claims, whereas I think the other potential cases involving classified documents, the 2020 election, seem much stronger both legally and factually.”

Trump’s lawyers are certain to attack the credibility of Cohen, a convicted liar who is far from the ideal prosecution witness. The disbarred attorney has said that Trump directed him to arrange the payment of hush money to fend off damage to his White House bid.

But Cohen has also admitted in court to lying before, and Trump’s lawyers will no doubt try to use that to their advantage. Cohen pleaded guilty in 2018 to lying to Congress to cover up that he was negotiating the Moscow Trump Tower project on Trump’s behalf during his presidential campaign. Cohen pleaded guilty in a parallel federal case to campaign finance violations and other charges in connection to the hush money payments.

After federal prosecutors declined to file charges against Trump in the hush money case, a former law enforcement official told The Associated Press that prosecutors harbored concerns over the reliability of Cohen as a witness. And federal prosecutors believed it was far from clear that Trump could be convicted of a campaign finance crime, even if a jury believed Cohen’s allegations that he directed the hush money payments.

Trump has already indicated he may try to have the case moved out of Manhattan, writing on social media Tuesday that it should be held in Staten Island. He called the borough — which is more conservative than the rest of New York City — “A VERY FAIR AND SECURE LOCATION.”

The former president may also argue that the statute of limitations — which is five years for most felonies in New York — has run out because the hush money payments and Cohen’s reimbursements happened before then.

There were some extensions during the pandemic, and state law also can stop the clock when a potential defendant is continuously outside the state. Trump visited New York rarely over the four years of his presidency and now lives mostly in Florida and New Jersey. His lawyers could question whether the timeout applies to elected officials serving in Washington.

“This case has some very good issues for the defense to litigate,” said Duncan Levin, a New York City defense lawyer and former Manhattan prosecutor. “It’s not an open-and-shut case by any means.”

—Alanna Durkin Richer, Colleen Long And Jennifer Peltz, The Associated Press

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