Analysis: Trump charged with narrow violations, in pursuit of broad scheme to undermine 2016 vote

Manhattan District Attorney Alvin Bragg, in a sweeping statement of facts unsealed Tuesday, accuses Donald Trump of engaging in a wide-reaching, more than two-year scheme to illegally influence the 2016 presidential election by suppressing potentially negative information about himself.

What Trump wanted to keep quiet included allegations he had engaged in a sexual dalliance with an adult-film actress and an affair with a Playboy model, and fathered a child out of wedlock, Bragg said in state court documents.

But the criminal charges detailed in the grand jury indictment against Trump are narrower, accusing the former president of falsifying business records 34 times, as he wrote checks to his lawyer Michael Cohen to reimburse Cohen for $130,000 paid to actress Stormy Daniels before the 2016 presidential election.

The gulf between the breadth of the election interference that prosecutors have alleged and the nuts and bolts of the technical charges they have brought against him form the crux and challenge of the criminal case against Trump.

“The prosecutor wants a story and a theory that the jury is going to find compelling and moving. Technical violations and false records are not that,” said Cheryl Bader, an associate professor at the Fordham University School of Law. “So the prosecutor is going to have to show that the real underlying story is about how Trump deceived the American public to get elected.”

[Trump pleads not guilty to 34 felony counts in alleged hush money scheme]

Falsifying business records is a felony in New York only when it is committed with an intent to commit or conceal another crime. At a news conference Tuesday after Trump appeared in court, Bragg, a Democrat, said prosecutors believe that Trump, a Republican, faked his business records as a way to cover up the election scheme, which he said was illegal under New York state election law and involved a campaign contribution that exceeded the cap set by federal law.


“Why did Donald Trump repeatedly make these false statements? The evidence will show that he did so to cover up crimes relating to the 2016 election,” Bragg explained.

In a 13-page statement of facts, prosecutors allege the scheme began in 2015, when Cohen and the chief executive of the American Media Inc., which owned the National Enquirer tabloid, agreed that AMI would pay for negative stories about Trump and then never publish them, a technique known in the tabloid industry as “catch and kill.”

The document outlines three efforts to kill negative stories about Trump over the course of the 2016 campaign. In one, AMI agreed to pay $30,000 to a Trump Tower doorman who was allegedly trying to sell information that Trump had fathered a child out of wedlock. Then, in the summer of 2016, AMI agreed to pay $150,000 to buy the story of Playboy model Karen McDougal, who had said she had an affair with Trump. In October 2016, Cohen agreed to pay $130,000 to buy the silence of Daniels, who said she’d had a sexual encounter with Trump at a celebrity golf tournament in 2006.

Trump has denied the allegations in each instance.

The descriptions of the tawdry stories dating to the 2016 campaign hold few new revelations - much of the detail outlined by Bragg emerged in years of news stories about Trump’s behavior and in Cohen’s own 2018 guilty plea for various crimes, including federal campaign finance violations.

The criminal charges against Trump stem only from the payment to Daniels. After Trump became president in 2017, Trump agreed to reimburse Cohen over the course of the year, paying him each month with checks that were described in company records as money for legal fees.

Among the records prosecutors say were falsified are vouchers in Trump’s general ledger maintained by his company, the Trump Organization, and invoices from Cohen also kept by Trump’s business spanning most of 2017. There are also check stubs from Trump’s payments to Cohen. All claimed Cohen was being paid for legal services he provided in 2017, while Trump was serving as president.

“This simply was not true, and it was a false statement that the defendant made month after month in 2017,” Bragg said at the news conference after the hearing. “For nine straight months, the defendant held documents in his hand containing this key lie that he was paying Michael Cohen for legal services performed in 2017. And he personally signed checks for payments to Michael Cohen for each of these nine months.”

For Trump critics, the charges were long overdue. They urged patience to allow Bragg’s office time to unspool the evidence gathered in the lengthy probe in court and try the case before a jury.

“The beauty of the American justice system is that the law applies equally to everyone - even former presidents - and everyone has the right to a fair proceeding free of intimidation or outside influence,” said Sen. Sheldon Whitehouse (D-R.I.), a former U.S. attorney.

But several legal experts said the case Bragg is attempting to bring could be tricky. For one, proving the records were falsified to hide violations of election laws could be a challenge.

Bragg told reporters that among the election laws he believes were broken is the federal cap on campaign contributions. It is unusual to argue that state laws have been broken to hide federal violations, and a judge may balk at the attempt. He said too that the scheme violated a New York law that makes it illegal to conspire to promote a candidacy by unlawful means. But, in turn, state election laws are not typically applied to federal campaigns.

Proving the payment to Daniels was intended to influence the campaign - a key part of showing it violated election laws - is also not likely to be a slam dunk, legal analysts said.

Trump’s lawyers have signaled they will argue that Trump wanted Daniels paid to keep her accusations from his family and not to influence the presidential campaign. A similar argument helped persuade a jury in 2012 not to convict former senator John Edwards (D-N.C.) of breaking campaign finance laws for steering donor money to a woman to hide an affair.

“If you’re going to indict a former president, especially this one, you ought to have a crisp, clear distillation of the crime. This is certainly not that,” said Robert Kelner, a Republican lawyer and Trump critic. “This is thinner gruel than I expected.”

John Coffee Jr., a Columbia Law School professor, said he believed the documents were vague as to how Trump violated election laws, an element Bragg’s prosecutors will need to prove to jurors to make the felony charges stick.

“It is still a rather unclear story they are telling,” he said. “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?”


[Trump’s day in court as criminal defendant: What to know]

Analysts said prosecutors may also have difficulty convincing jurors that Cohen is credible. The former lawyer and confidant for Trump dramatically turned on his former boss in 2018 and has been an outspoken critic of the former president ever since. Cohen pleaded guilty to various crimes, including violating federal campaign finance law by paying off Daniels. In dramatic testimony to Congress before reporting to serve about a year in prison in 2019, Cohen insisted he acted on Trump’s instructions throughout.

“Everything had to go through Mr. Trump,” he said, “and it had to be approved by Mr. Trump.”

But while the court documents unsealed Tuesday provide copious details of written records that demonstrate Trump falsely described the reimbursement payments to Cohen, they provide fewer details about evidence - beyond Cohen’s word - that Trump directed Cohen to pay Daniels in the first place and did so to win the election.

“There’s two big things we do not know about,” Anna G. Cominsky, a professor at New York Law School. “We do not know all the witness testimony and we do not know all the documentary evidence that they may or may not have. The second big thing we do not know is how the trial jury will assess each witness’s credibility.”

Other analysts suggested it may be difficult for prosecutors to demonstrate Trump’s “intent to defraud” others because the business records at issue were internal to Trump’s company.

Trump’s lawyers have said they are likely to urge a judge to toss out the case before it goes to trial. Another issue they have said they will probably cite is the statute of limitations for nonviolent felonies, which in New York expires after five years. According to the indictment, Trump is most recently accused of falsifying business records in this case on Dec. 5, 2017 - more than five years ago.

But legal experts say that there are many circumstances in which the clock for the statute of limitations could be paused, including for the period in which a defendant moves out of the state.


“I’m sure Bragg has had his best people looking into all the legal issues - and they wouldn’t move forward unless they felt confident they had at least reasonable arguments,” said Bader, the Fordham professor.

Experts said that even if prosecutors persuade a jury that Trump falsified business records in pursuit of a broader illegal election scheme, it is not clear what kind of punishment he might face. Each count of felony business record falsification carries up to a four-year prison sentence, but Bader said it would be unusual for a defendant to receive jail time for the charge.

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The Washington Post’s Josh Dawsey and Carol D. Leonnig contributed to this report.