“The moment we’ve been waiting for, we’ve come to the end together” — those familiar words from “America’s Got Talent” — could be the start of Manhattan District Attorney Alvin Bragg’s inauguration next week, when he is expected to unveil an indictment of former President Trump. With Trump announcing he expects to be arrested on Tuesday, it would be a fitting curtain-raiser on a case that has evolved more as a TV production than a criminal trial. Indeed, this indictment was repeatedly rejected only to be reinstated by popular demand.
Trump faces serious legal threats in the ongoing Mar-a-Lago investigation. But the New York case could easily be dismissed outside a jurisdiction like New York, where Bragg could count on highly motivated judges and juries.
Although it may be politically popular, the case is legally pathetic. Bragg is fighting to twist state laws in order to effectively prosecute a long-dismissed federal case against Trump over his payment of “hush money” to former stripper Stormy Daniels. In 2018 (yes, that’s how long this theory has been around), I wrote about how difficult such a federal state would be under current election laws. Now, six years later, the same theory may be incorporated into the state’s claim.
It is very difficult to prove that the payment of money to cover up an embarrassing affair was made for electoral purposes rather than for a host of other obvious reasons, from protecting a celebrity’s reputation to preserving a marriage. This was demonstrated by the failed federal trial of former presidential candidate John Edwards on the much stronger charge of using campaign funds to cover up a case.
In this case, Trump reportedly paid Daniels $130,000 in fall 2016 to cut through or at least minimize any public scandal. The Attorney General’s Office for the Southern District of New York had no love for Trump, hounding him and his cronies through countless investigations but ultimately refusing to prosecute on the grounds of election law violations. It wasn’t alone: The head of the Federal Election Commission (FEC) has also expressed doubts about the theory.
Prosecutors working under Bragg’s predecessor, Cyrus Vance Jr., have reportedly rejected the feasibility of using New York law to effectively bring federal charges.
More importantly, Bragg himself had previously expressed doubts about the case, effectively closing it shortly after taking office. The lead plaintiffs, Carrie R. Dunn and Mark F. Pomerantz, resigned in protest. Pomerantz has launched a public campaign against Bragg’s decision, including commenting on a still-pending investigation. He made it clear that Trump had a guilty conscience on his mind, though his previous office has not yet decided and a grand jury investigation is under way.
Then Pomerantz did something that struck many of us as deeply unprofessional and unseemly: After Bragg protested that he was undermining any potential trial, Pomerantz published a book detailing the case against someone who had never been charged, let alone convicted.
It was, of course, an instant hit in a media outlet that has spent years highlighting dozens of different criminal theories that have never been charged against Trump. Pomerantz followed the time-tested combination to success—associating Donald Trump with any alleged crime and conveying the absolute certainty of guilt. For cable TV shows, it was like heroin hitting the audience in a long, painful withdrawal.
And the campaign succeeded. Bragg gave in, and it’s clear that “America’s Got Trump” will air after all.
However, before 12 jurors can vote, Bragg must still navigate a series of glaring problems that could raise serious appeal challenges later.
While we still don’t know the state’s specific charges in the expected indictment, the most discussed fall under Section 175 for falsifying business records, based on the allegation that Trump used legal expenses to conceal alleged silence payments that were supposedly used in violation of federal election laws. While some legal experts have insisted that this concealment is clearly a criminal matter to be charged, they remained conspicuously silent when Hillary Clinton faced unvarnished campaign finance allegations.
Last year, the Federal Election Commission fined the Clinton campaign for funding Steele’s dossier as legal expenses. The campaign had previously denied funding the dossier, which was used to push false Russia collusion allegations against Trump in 2016, and buried the funding in the campaign’s legal budget. However, there was no shouting about this kind of prosecution in Washington or New York.
The charge for Section 175 is usually a misdemeanor. The only way to convert it to a Class E felony requires proof that “intent to defraud includes intent to commit, assist in the commission of, or conceal another crime.” This other crime appears to be federal election violations that the Justice Department previously refused to charge.
The connection to a federal crime is critical for another reason: The Prague office ran out of time to prosecute this crime as a misdemeanor years ago. The statute of limitations is two years. Even if he shows that this is a viable felony charge, it can be difficult to set the five-year statute of limitations.
Of course, none of these legal problems will be relevant to the upcoming madness. It would be a nothing if not entertaining affair you can bring popcorn to – as long as you leave your principles behind.
In fact, some would see it as poetic justice for this former reality TV host to be prosecuted like a televised talent show. However, the damage to the legal system is enormous whenever political pressure overwhelms the prosecution’s verdict. The criminal justice system can be a terrible weapon when used for political purposes, which is an all too familiar sight in countries where the ruling party can target political opponents.
None of this is to say that Trump is blameless or should not be charged in other cases. However, it appears that we are about to witness a trial by referendum on this issue. The “America’s Got Trump” season opener might be a guaranteed hit with its New York audience — but it should be a flop as a litigation.
Jonathan Turley is Professor of Public Interest Law at Shapiro University, George Washington University. Follow him on Twitter @tweet.
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