For more than a year, a criminal inquiry into whether Donald Trump masterminded a “hush money” scheme to keep adult film actor Stormy Daniels silent was thought to be dead and buried.
Federal prosecutors in New York had looked at the case and declined to pursue it. When Alvin Bragg became Manhattan district attorney in 2022, he reportedly believed it to be too thin, and subsequently shifted his office’s focus to a tax fraud case against the former president’s business empire.
Yet on Tuesday what had been widely referred to as the “zombie case” came back to life, as a sombre Trump was formally charged with 34 felonies.
A 16-page indictment – or formal charge – claimed only that the defendant falsified business records to reimburse his former lawyer, Michael Cohen, for paying $130,000 to Daniels in the run-up to the 2016 election in exchange for her agreement not to talk about an alleged affair with Trump.
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The criminal case – unprecedented both in the legal theories it presented and the political implications of charging a former president – was met with deep scepticism by many legal experts.
Those who had long questioned the wisdom of pursuing such a case promptly rounded on the Democratic district attorney. “This is all very thin gruel for an indictment of a former president by a local prosecutor,” tweeted Robert Kelner, a Washington-based election lawyer at Covington & Burling and a former Republican speech writer.
Even those in favour of indicting Trump for other crimes expressed their doubts. UCLA School of Law professor Richard Hasen, who has previously called for Trump to be charged in a separate inquiry over the January 6th 2021 Capitol Hill riots, said political and legal considerations should have prevented Bragg from moving forward.
“The legal papers are quite skimpy – if this was in federal [or national] court I would expect more of the theory of the case to be in there,” Hasen said. “If this case is weak ... some in the public might surmise that they are all weak,” he added, referring to investigations in Georgia and elsewhere over Trump’s alleged interference in the 2020 presidential election.
Falsifying business records is a misdemeanour (lesser crime) in New York state, and can only be elevated to a more serious felony if done with the intent to defraud or conceal another crime. “The scepticism is coming from the lack of identification of that additional crime,” said Tanisha Palvia, a former Manhattan assistant district attorney who is now in private practice.
In court, assistant district attorney Christopher Conroy said Trump’s payments had been made to “conceal an illegal conspiracy to undermine the integrity of the 2016 presidential election”. The DA’s office subsequently released a “statement of facts”.
This detailed other payments it said were made by Trump’s allies at the media group then behind the National Enquirer magazine to silence a Playboy model who claimed to have had an affair with Trump and to stop a former doorman at Trump Tower from revealing a potentially damaging story.
For his part, Bragg emphasised in his press conference that the indictment “is not just about one payment”, referencing state and national election laws that might have been broken by Trump as well as possible violations of New York tax law.
But he conceded that “the indictment does not specify” which particular crimes these might be, leaving the door open for Trump’s team to challenge the legitimacy of the charges.
“What struck me was the statement of facts which laid out what I would consider to be facts related to a conspiracy,” said Jim Roberts, a white collar defence lawyer at Schlam Stone & Dolan and a former Manhattan assistant district attorney. “That charge [conspiracy] is notably absent from the formal charges that are contained in the indictment,” he added, unlike the one brought against former Trump adviser Steve Bannon by the same office last year.
“The multiple theories of the predicate crime required to elevate the misdemeanour charge ... to a felony might be akin to an everything but the kitchen sink approach,” Roberts added.
“It may also suggest a lack of a simple, cohesive, and persuasive theory of the prosecution – something they will need to be able to articulate to convince a jury,” he added. “And given the stakes, DA Bragg cannot afford to lose this case.”
Flanked by posters highlighting dozens of cases brought by his office for falsifying business records, Bragg defended the charge as “the bread and butter of our white collar work”.
But tying the misdemeanour of falsifying business records to a federal election crime in particular is untested as a legal theory in New York state.
“If that other crime is federal law, that may well be pre-empted by federal agencies and the [justice department],” Hasen said. “To the extent that they are relying on state charges, it is not clear that someone could be charged on state charges in a federal election.”
Another potential weakness of the case is the reliance on key witnesses such as Daniels, who has written a book about her run-ins with Trump, and Cohen, who pleaded guilty to lying under oath in 2018 and served a prison sentence after being convicted of campaign finance violations, among other charges.
“You need to corroborate every word out of Michael Cohen’s mouth,” said Karen Friedman Agnifilo, a former high-ranking member of the Manhattan DA’s office who has long supported Bragg’s decision to bring the case. “It is a weakness.”
Despite such misgivings, many who have personal experiences with Trump’s legal tactics have warned against jumping to conclusions based solely on the indictment, emphasising that it is merely the opening salvo in a legal battle that could last for well over a year.
“President Trump will spare no expense in trying to get these charges dismissed,” said Temidayo Aganga-Williams, who was a senior counsel for the House select committee investigating the January 6 2021 attack before joining law firm Selendy Gay Elsberg.
“For strategic reasons you may choose as a prosecutor to release less information than you otherwise might,” he added, keeping something back to fight “a barrage of pretrial litigation”.
Palvia was also keen to stress that the DA might have more up his sleeve, especially after 23-person grand jury – which determines whether there is enough evidence to prosecute a person and whether there is probable cause to believe a crime has been committed – voted to hand down the indictment.
“A grand jury did [vote to] indict Mr Trump, so at least 12 people and potentially more thought there was enough.” The indictment, she added, “may not be as weak as it appears to us”.
– Copyright The Financial Times Limited 2023