Trump Case Could Hinge on 'Gnarly Legal Question'

But tax claim could shore up Bragg's case
By Rob Quinn,  Newser Staff
Posted Apr 5, 2023 2:04 PM CDT
Trump Case Could Hinge on 'Gnarly Legal Question'
Manhattan District Attorney Alvin Bragg speaks at a press conference after the arraignment of former president Donald Trump in New York on Tuesday, April 4, 2023.   (AP Photo/John Minchillo)

The case against Donald Trump might not be as tough for Manhattan District Attorney Alvin Bragg to pursue as some analysts are claiming, according to Charlie Savage at the New York Times. To bring the bookkeeping fraud charges the former president is facing to the level of a felony, prosecutors need to show "a defendant intended to commit, aid or conceal a second crime," Savage writes. He says that while most commentators are focusing on alleged violations of state and federal election law, which raise some thorny legal questions, Bragg, in a statement of facts, also accused Trump of falsifying business records as part of a plan to violate state tax law. Analysts say using that to elevate the bookkeeping charges could eliminate some of the complications that would arise in building a case around campaign finance law violations.

"Pundits have been speculating that Trump would be charged with lying about the hush money payments to illegally affect an election, and that theory rests on controversial legal issues and could be hard to prove," says New York Law School professor Rebecca Roiphe, a former state prosecutor, per the Times. But it "turns out the indictment also includes a claim that Trump falsified records to commit a state tax crime,” Roiphe says. "That’s a much simpler charge that avoids the potential pitfalls."

  • Vox reports that without the tax law element, Bragg will face what Mark Pomerantz, a former prosecutor in the Manhattan DA's office, calls a "gnarly legal question" that courts have never answered. Pomerantz, who dealt with the Trump case, says the big unknown is whether Trump can be legally charged with violating the state law on falsifying records when the "second crime" involved is a federal campaign finance crime out of Bragg's jurisdiction, not a state crime.
  • Axios reports that other critics of Bragg's strategy include former FBI deputy director Andrew McCabe, who called the indictment "unimpressive." He said commentators "across the spectrum" are saying: "Boy, there's really not much in here. Raises all kinds of questions about the legal theory behind this case. They're gonna have a tough time, facing motions to dismiss."
  • John Coffee Jr., a Columbia Law School professor, tells the Washington Post that legal documents are vague on the alleged campaign finance violations. "It is still a rather unclear story they are telling," he says. "I’m not saying it is fatal, but there is still a big mystery they have kept us in the dark about. And that mystery is what is the second offense that raises this to a felony?"
(More Donald Trump stories.)

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