Donald Trump's lawyers are trying to knock down the Manhattan fraud charges to misdemeanors by looking at a U.S. Supreme Court decision in a decades-old hate crime case.
District attorney Alvin Bragg did not detail the former president's crimes in the official indictment handed up in March, and sources familiar with his legal team's deliberations say his lawyers are exploring a tactic to downgrade the 34 fraud counts listed in the indictment to misdemeanors -- although prosecutors have charged them as felonies because he allegedly faked his business records while breaking election law, reported The Daily Beast.
Trump's lawyers are examining a 2000 Supreme Court decision in Apprendi v. New Jersey, which involves a 1994 incident where a white man got drunk and fired gunshots at a Black family's home that resulted in hate crime charges.
A state judge determined that Charles C. Apprendi Jr. had been motivated by racial bias and tacked two additional years onto a 10-year maximum sentence from the charges listed in the indictment, but the Supreme Court ruled that the founders had never considered "elements" of a felony or "sentencing factors," and said basically anything not listed in an indictment cannot be used to impose additional jail time.
A source with intimate knowledge of Bragg's investigation told The Daily Beast that Trump's lawyers had found a "creative" approach to a real weakness in the district attorney's case, and that battle is already playing out in court as Bragg's office defended its decision to leave out some important details from the indictment.
“Where an intent to commit or conceal another crime is an element of an offense, the People need not prove intent to commit or conceal a particular crime,” wrote prosecutor Becky Mangold in a 10-page document filed Tuesday. "The indictment need not identify any particular crime that the defendant intended to commit or conceal.”
Bragg's office refused to explain why prosecutors declined to allege the election violation in the indictment, and legal experts aren't certain that Trump's gambit will work.
“I’m not at all surprised… it would never be in the indictment," said Karen Friedman Agnifilo, a former chief assistant to the previous district attorney who launched the Trump investigation. "There are plenty of instances where there are bump-up crimes. To me, it doesn’t seem like it’s an issue, and I don’t even think they had to lay out a statement of facts. Nothing requires that. That’s not always done either.”
For example, she said prosecutors routinely charge burglars with trespassing but leave out details of the intended theft from the indictment because that forces them to strengthen their case.
“That’s just one more thing you have to prove," Agnifilo said. "Maybe they don’t know they can’t prove it beyond a reasonable doubt."
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