“It is a case about an alleged attempt by a man running for this country’s highest office to systematically defraud voters and use illegal means to gain an advantage in an election.”
Alvin Bragg Says Trump Tried To Conceal ‘Another Crime.’ What Crime?
Shortly before the 2016 election, Michael Cohen, Trump’s lawyer, paid Daniels $130,000 to keep her from talking about the alleged affair. In a 2018 plea agreement, Cohen, who will be the main prosecution witness in Bragg’s case against Trump, accepted the Justice Department’s characterization of that payment as an illegal campaign contribution. But Trump was never prosecuted for soliciting or accepting that purported contribution. Nor was he prosecuted for later reimbursing Cohen in a series of payments.
There are good reasons for that. The question of whether this arrangement violated federal election law hinges on whether the hush money is properly viewed as a campaign expense or a personal expense. That distinction, in turn, depends on whether Trump was motivated by a desire to promote his election or by a desire to avoid embarrassment and spare his wife’s feelings.
Bragg instead charged Trump with covering up his reimbursement of Cohen by disguising it as payment for legal services. Trump did that, according to the indictment, through phony invoices, checks, and ledger entries, each of which violated Section 175.05 of the New York Penal Law, which makes falsification of business records “with intent to defraud” a misdemeanor punishable by a maximum fine of $1,000 and/or up to a year in jail.
Under Section 175.10 of the penal code, that offense becomes a Class E felony, punishable by up to four years in prison, when the defendant’s “intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.”
The indictment, which was unveiled in April 2023, charges Trump with 34 counts under that provision but does not specify “another crime.” A month later, Bragg’s office suggested four possibilities:
The Federal Election Campaign Act
It is not clear that Trump violated that law, and the Justice Department evidently concluded there was not enough evidence to prosecute him for doing so. Given the fuzziness of the distinction between personal and campaign expenditures, it is plausible that Trump did not think the hush payment was illegal, in which case he did not “knowingly and willfully” violate the statute, as required for a conviction. And if so, it is hard to see how his intent in falsifying business records could have included an intent to conceal a violation of federal campaign finance law.
Section 17-152 of the New York Election Law
That provision says “any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor.” But as the Times notes, “Federal campaign finance law explicitly states that it overrides—pre-empts, in legal terminology—state election law when it comes to campaign donation limits.”
“It is a case about an alleged attempt by a man running for this country’s highest office to systematically defraud voters and use illegal means to gain an advantage in an election.”
Alvin Bragg has some hurdles ahead, but that doesn’t mean he won’t clear them
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