Politico reported Wednesday that a number of legal scholars and Republicans are complaining that Manhattan D.A. Alvin Bragg's case against Donald Trump is worthless and will never work.
"I believe President Trump’s character and conduct make him unfit for office. Even so, I believe the New York prosecutor has stretched to reach felony criminal charges in order to fit a political agenda,” Sen. Mitt Romney (R-UT) said in a statement released moments after Bragg's press conference. “The prosecutor’s overreach sets a dangerous precedent for criminalizing political opponents and damages the public’s faith in our justice system.”
"It is said that if you go after the king, you should not miss," wrote UCLA's Richard Hasen. “In this vein, it is very easy to see this case tossed for legal insufficiency or tied up in the courts well past the 2024 election before it might ever go to trial. It will be a circus that will embolden Trump, especially if he walks.”
Politico cited liberal legal commentator who writes for Vox, Ian Millhiser, who called the case “dubious.”
What those who have worked in New York have explained over the last 12 hours is that Bragg's case doesn't even cite specifics. It wasn't until his press conference that Bragg even mentioned the statute he alleges Trump broke. The statement of facts and the indictment don't go into any specifics.
"Unlike others," former federal prosecutor Renato Mariotti began in a Twitter thread, "I did not rush to judgment regarding the Manhattan indictment before it was released to the public. Instead, I spent hours — both before and after the indictment was made public — speaking with former Manhattan Assistant DAs and others about the issues I saw. Based on my conversations with them, I'm convinced that the main crime here (Falsifying Business Records) is straightforward to prove. I was initially concerned about the evidence regarding intent to defraud, but there is case law in the First Department that favors Bragg."
He conceded that "falsifying business records" isn't compelling the way charges of fraud and false statements to cheat someone are compelling. "The offense here involves putting those false statements in a file cabinet."
"To be clear, this statute is charged often in Manhattan," he explained.
Michigan Law School Professor Barbara McQuade explained that Manhattan has pursued this crime many times. "But it is often charged in conjunction with other crimes because what makes it a felony, rather than a misdemeanor, is when it is done in furtherance of a separate crime. No other crime was charged here."
"Now we've seen the indictment, and the accompanying Statement of Facts, but it is still unclear exactly what Bragg believes those other crimes are," Mariotti continued. "That isn't just bad for Trump. It's bad for all of us."
He assumes that Bragg will have to clarify the indictment soon.
"I suspect that Bragg will (be forced to) clarify his legal theory soon. But what we do know about his case suggests that it is stronger than it appeared before indictment. For one thing, he claims that the "other crimes" include tax crimes instead of just election crimes. While some jurors may not view a payment to a porn star as a campaign expense, it won't be hard to convince jurors that a rich man is trying to avoid paying taxes. It is not clear what Bragg's tax theory is, which is one reason why he needs to clarify the indictment."
Mariotti said that Bragg's theory could be around Trump's categorizing the hush money payments as "business expenses" so he could deduct them. It's something that his former lawyer Michael Cohen indicated he thought was the reason.
"But if his claim is that Michael Cohen overstated his income (and thus paid too much in taxes) to disguise the scheme, that would be weaker," he continued. "A tax crime would be stronger overall, because as [former FBI agent] Asha Rangappa and I have discussed in our #ItsComplicated podcast, it will be much easier to explain to jurors why the State of New York has an interest in bringing this case. States need citizens to pay their taxes."
The election offenses in the Statement of Facts gives a nod to evidence along those lines, particularly Cohen's comments that Trump tried to delay the hush money until after the election because it wouldn't matter once it was over.
Bragg trying to claim state election laws when Trump was a federal election candidate might be a problem. But if Bragg says that Trump intended to violate federal law, there's a stronger case.
"His office has used federal laws as the 'other crimes' in state Falsification of Business Records cases before, but New York courts have never considered that issue before," Mariotti said. "As you might tell, while Bragg has a lot to work with, there are significant issues with this case. Prosecutors occasionally take on difficult cases involving first-of-their-kind legal issues. I've done that before myself. But I'm not sure this was the right case to do so."
As he explained, Bragg will have to give further details in the coming months, but for now, he can let Trump deal with all of his other lawsuits and cases.
