Trump Trial: The Prosecution Rests, Lawfare at Court, Where’s the Crime?

by The Judicial Watch

The Trump prosecution rested its case Monday with a central question unanswered: where’s the crime?

Manhattan District Attorney Alvin Bragg has been dancing around the question for months. The prosecution produced a cacophony of tawdry testimony from a porn star (Stormy Daniels) and a former Trump aide turned convicted felon turned cooperating witness (Michael Cohen) but their claims had little to do with the allegations at the center of the case. Trump is charged with thirty-four felony counts of falsifying business records, generally a low-level misdemeanor. But New York state law elevates the misdemeanor charge to a felony if the defendant’s “intent to defraud includes an intent to commit another crime,” and that’s where Bragg has placed his big bet.

That other crime? Bragg insists he doesn’t have to name it. The “law does not so require,” he said at a news conference announcing the indictment—and in a court filing he doubled down, citing a legal finding that there is “no requirement” to “establish what particular crime was intended.” Good luck putting that one past a jury of New Yorkers.

Bragg has offered several theories of “another crime.”

“The primary crime we have alleged is New York state election law section 17-152,” a Bragg prosecutor told the court in the opening days of the trial. “The entire case is predicated on the idea that there was a conspiracy to influence the election in 2016.”

But Trump is not charged with an election law violation, and Bragg is on shaky legal ground with a 17-152 prosecution. A Washington Post search revealed only three prosecutions in forty-five years for violation of the statute. In one case, the defendant was acquitted; in the two others, charges were dropped.

Bragg also has suggested Trump violated federal campaign finance laws. In a court filing, Bragg alleged that Trump violated the federal Election Campaign Act by purchasing and suppressing “damaging information” from porn star Stormy Daniels. Other prosecutors have looked at this attempt to stretch a state charge to include a federal crime with skepticism. Both Bragg’s predecessor as Manhattan DA, Cy Vance, and the U.S. Attorney for the Southern District of New York declined to charge Trump in the case.

Mark Pomerantz, a senior Vance prosecutor who resigned after differences with Bragg on Trump prosecutions, is dismissive of the state-federal gambit. In his book, “People vs. Donald Trump,” Pomerantz writes that the DA’s office spent a lot of time on the “gnarly legal question” of whether the “other crime” clause on the New York state books could be expanded to cover a federal crime. The issue has “never been litigated,” Pomerantz notes, and “no one could predict with certainty how an appellate court might eventually rule.”

Bragg’s third “another crime” gambit is perhaps the strangest: tax fraud. In a “Statement of Facts” accompanying the Trump indictment, Bragg suggests that Trump violated New York tax laws by conspiring with Michael Cohen to file a fraudulent tax return “that mischaracterized, for tax purposes, the true nature of the payments made in furtherance of the scheme” to buy the silence of Stormy Daniels. Cohen, according to Bragg, paid Stormy Daniels $130,000. But Trump repaid Cohen $420,000. Why? According to the DA, so Cohen could then “characterize the payment as income on his tax returns, instead of a reimbursement,” leaving Cohen with a tidy $180,000 profit.

Jacob Sullum notes in Reason: if “Cohen mischaracterized a reimbursement as income on state or city tax forms, that would be a peculiar sort of fraud, since the effect would be to increase his tax liability. This theory of ‘another crime’ requires jurors to accept the proposition that tax fraud can entail paying the government more than was actually owed.”

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