The Manhattan district attorney may be the first to indict Donald Trump on criminal charges, but one legal expert said that case may be the hardest to prove.
Manhattan District Attorney Alvin Bragg Jr. is weighing charges against the former president in the hush money payment to porn actress Stormy Daniels, but Loyola Law School professor Jessica Levinson argued in a new column for MSNBC that this case could jeopardize other investigations into Trump's business and political activities.
"Bragg’s case isn’t unwinnable, but it is far from a slam dunk," Levinson wrote. "Trump has claimed the case is just too old, meaning the statute of limitations to bring the case has run out. This is probably the easiest hurdle for Bragg to clear. New York law includes an exception to the statute of limitations when someone has been 'continuously' outside the state."
A hush money payment isn't inherently illegal, but Trump's former attorney Michael Cohen paid $130,000 to Daniels to stop her from going public with claims of an affair just weeks before the 2016 election, which Levinson said should be viewed as an undisclosed campaign contribution well over the applicable limit of $2,700.
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"Trump is implicated here," she wrote. "Cohen has said he made the payments at the direction of Trump, which involves him in the illegal behavior. In addition, Trump reimbursed Cohen for the payments but improperly listed those reimbursement payments as legal expenses and claimed there was a retainer agreement with Cohen, which apparently never existed. This could give rise to the crime of falsifying business records. Normally that is a misdemeanor charge, but it can be kicked up to a felony if prosecutors show Trump intended to defraud, which includes the intent to commit, aid in the commission of or conceal another crime."
But it's difficult to prove intent, especially with Trump, who does not leave a paper trail, speaks in code and constantly lies, and Bragg assumes a risk for other prosecutors by indicting the ex-president.
"If Trump successfully defends himself against an indictment for his role in the payment to Daniels, we can predict he will use it as vindication that any and all charges brought against him are merely so-called witch hunts," Levinson wrote. "It doesn’t take much to imagine Trump’s ceaseless gloating about a loss by the New York prosecutors. And this could have a cascade effect, not only emboldening Trump’s false claims that he has done nothing wrong, but also making other prosecutors skittish about charging Trump in other cases."
The other risk is that Cohen, the key witness in this case, is a convicted felon -- in cases involving the former president, of course -- and Trump would no doubt try to undercut his claims by attacking his credibility.
"Any indictment of a former president would be historic," Levinson wrote. "In fact, such a criminal indictment would be a first in our nation’s history. One thing we know about historic firsts: We view them as test cases for what is possible. If Bragg were to move forward on an indictment and lose his case, it would have a ripple effect, both legally and politically, on future cases against Trump. For the sake of the rule of law and of legal and political accountability, let’s hope Bragg and his office know something we don’t about the strength of his case against the former president."