Manhattan District Attorney Alvin Bragg filed criminal charges against former President Donald Trump, who appeared in court for his arraignment on 34 felony counts of falsifying business records.
“Speaking as someone who very strongly does not want Donald Trump to get the Republican presidential nomination, I’m extraordinarily distressed by this document,” said former national security adviser John Bolton. “I think this is even weaker than I feared it would be.”
Bolton, who served as Trump’s national security adviser from 2018 to 2019 before later emerging as a vocal critic of the former president, particularly disagreeing with his lie that the 2020 election was stolen from him.
Other top Republicans, including Speaker Kevin McCarthy, publicly criticized the indictment of Trump on Tuesday.
Trump delivered a grievance-ridden speech at Mar-a-Lago, his personal residence and private club in Palm Beach, Fla., hours after the arraignment on criminal charges in New York, casting himself as the victim of a political prosecution and railing against what he called a “lawless” justice system bent on ending his political career.
The falsification of business records is typically a misdemeanor offense under New York state law. But it can be upgraded to a low-level felony if the prosecution can show the defendant committed the offense with the intention to commit or conceal another crime.
The 34 counts unveiled by Manhattan District Attorney Alvin Bragg on Tuesday were all felony charges, with prosecutors arguing the former president also violated election laws.
“It’s a crucial moment for the rule of law in the United States,” said Michael Waldman, president of the Brennan Center for Justice at NYU School of Law. “Donald Trump faces no fewer than four criminal investigations. Two are before a federal grand jury. One is unfolding in Fulton County, Georgia, where Trump was caught on tape asking Secretary of State Brad Raffensperger to help him ‘find’ enough extra votes to overturn the 2020 presidential election.”
Randy Zelin, a Cornell Law School professor who previously worked as a white collar defense lawyer and prosecutor, said prosecutors could face significant hurdles in convincing a jury that Trump intended to commit or conceal another crime when he allegedly falsified business records to conceal the hush money payments.
“I think it will be difficult to prevail on the felonies,” said Zelin. “The falsifying of entries misdemeanor — that’s a slam dunk.”
Loyola Law School professor Jessica Levinson said it appears Manhattan prosecutors have a “very strong case” to argue that false business entries were made as part of the “catch and kill” strategy to suppress negative stories about Trump.
She added that connecting that alleged offense with violations of election laws or other crimes will be more challenging.
“Unless you have a smoking gun, showing intent to commit another crime can always be a challenge,” said Levinson.
Still, Levinson said Bragg’s case does not only hinge on the accounts of former Trump “fixer” Michael Cohen, who she said could be characterized as an unreliable source.
Cohen, who said he made a $130,000 hush money payment to Daniels in 2016 on behalf of the former president, served time in federal prison after pleading guilty to tax evasion and campaign finance violations.
“It hinges on David Pecker,” Levinson said, referring to the former CEO of America Media, Inc., who allegedly worked with Cohen and Trump to buy and kill negative stories about Trump. “And I think it hinges on other people in the Trump Organization who actually helped him make these payments.”
John Coffee, a Columbia Law School professor who studies white collar crime, said Trump’s lawyers will likely seek to dismiss the case and to change the venue of the proceedings to another jurisdiction. Trump’s attorneys, Coffee said, could argue that the case should be dismissed because prosecutors have not sufficiently demonstrated that the former president falsified records to conceal another crime.
“I think they have strong evidence that there were false documents filed for the misdemeanor but I don’t understand what they’re alleging was the federal offense or the state offense that was covered up,” said Coffee.
Zelin, the Cornell University professor, said Trump’s legal team could argue that the hush money payments were intended to protect his family, not to influence the 2016 election.
Trump could argue, “I was just trying to be a good husband and a good father. I was trying to keep this out of the press,” Zelin said.
Levinson claimed that argument might be undermined by evidence that Trump, Cohen, Pecker and others agreed to bury stories about the billionaire to insulate his presidential candidacy from political attacks and scandals.
“All the allegations point to the idea that some people sat down and said, ‘Let’s make sure we suppress these stories because we don’t want it to get out to the voters,'” said Levinson.
“I think we’ll see a number of challenges to the indictment,” said Randall Eliason, a former assistant U.S. attorney for D.C. who teaches law at George Washington University Law School. “One would be if the underlying crime that the prosecutors are alleging was being concealed or covered up here is a federal campaign violation, there’ll be an argument that that’s not a proper basis for a state prosecutor to turn their own state crime into a felony and that only the federal government could bring that charge.”
“There’s going to be arguments about whether there’s enough proof of intent to defraud here because these were purely internal documents,” said Eliason. “Most of these cases involve false writings that were submitted to some government agency or submitted to some other person, and that’s how you prove intent to defraud. These were kept purely internal. So I think that’s going to be a legal issue that gets fought over as well.”
“They’ll probably try to argue that, you know, the president is immune from this kind of suit, that a state prosecutor can’t bring this kind of suit,” said Eliason. “And I expect they’ll try to make some kind of motion that the district attorney should be disqualified, that he’s biased or, you know, it’s inappropriate for him to be bringing this case. And again, not that these will succeed, but they can definitely tie things up for months or longer.”