Felony charge for Trump in Stormy Daniels payoff could be difficult — here's why

New reports indicate that the Manhattan District Attorney is taking key steps that make an indictment of former President Donald Trump more likely, focusing on his hush payments to former adult film star Stormy Daniels as a potential violation of business and election law.

But even if DA Alvin Bragg chooses to move forward, argued former federal prosecutor Renato Mariotti on MSNBC Thursday, a felony conviction will be a challenge to obtain.

"We know [Trump lawyer] Michael Cohen, for doing that in terms of that being a campaign finance violation, was sentenced to three years in prison for a crime in which Donald Trump was named as the unindicted coconspirator, the person that was unnamed in it was Donald J. Trump," said anchor Joy Reid. "[Cohen] served 13 1/2 months for that. I think when people look at it, whatever you might think of Michael Cohen as a witness, it is true that he went to prison for something he didn't do. And so fairness would indicate that the person he did it for is at least as culpable as he is."

"Yeah, I think it's fair to say that Trump is ultimately the driver of this scheme," agreed Mariotti. "I don't think anyone disagrees with that. I think the commentary that was just given a moment ago, I actually agree with, is just simply that under the — in terms of New York law, there's going to be some challenges in this case."

"One thing I think won't be a challenge is the misdemeanor charge. The making a false statement in a business record, I think that's much stronger," continued Mariotti. "The question is, and the challenge for Alvin Bragg and his team, is going to be how can you turn that into a felony? Ultimately, the issue is going to be, was there a violation of New York election law here. And that means that was this $130,000 payment a contribution, effectively a contribution to the Trump campaign, because this was really in the midst of an election and they needed to keep it quiet in order to make the 2016 election."

"The Trump team is going to say he was doing this because he loved Melania so much and didn't want to hurt her," Mariotti added. "That probably is not going to appeal to most people. The question is there one juror who it would appeal to."

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