Bragg’s Case Against Trump Has a U.S. Constitution Problem

According to press reports, Manhattan District Attorney Alvin Bragg is close to indicting Donald Trump, or at least wrestling with the decision. While Trump has predicted “death and destruction” if he is arrested, his defenders should focus instead on the prosecution’s legal flaws. In fact, at the heart of the case rests a critical — but so far unexplored — defect that should bring down Bragg’s house of cards.

According to leaks from the DA’s office, Bragg intends to seek a grand-jury indictment of Trump for a $130,000 hush-money alleged payoff to porn star Stephanie Clifford (a.k.a. Stormy Daniels). Nondisclosure deals do not by themselves violate criminal law. The DA’s star witness is Trump’s fixer, Michael Cohen, who was convicted of a federal felony for carrying out the scheme. (Cohen has proven such an unreliable witness that federal prosecutors decided to drop any further investigation into the payoff years ago.) The apparent claim here is that Trump violated the law by trying to account for the hush money as a payment to bagman Cohen for “legal services.”

But fiddling with the corporate books can only support a misdemeanor charge, one that has to be brought within two years of the act. As the payoff occurred in 2016, the Manhattan DA ran out of time years ago. So to elevate this minor infraction into a felony incurring significant jail time and subject to a longer statute of limitations, Bragg apparently plans to claim that Trump falsified his business records to conceal another crime. What crime? According to press reports, Bragg claims that Trump violated federal campaign-finance laws by concealing what was effectively a contribution to his own presidential efforts.

In other words, if he proceeds (which is not yet completely clear), Bragg would charge Trump because he did not pay Clifford out of campaign funds. It is not even clear that Bragg could prove that the payment had anything to do with the campaign, as Trump could claim that he would have paid the hush money anyway to spare his wife and family from humiliation. (Read more from “Bragg’s Case Against Trump Has a U.S. Constitution Problem” HERE)

Photo credit: Gage Skidmore via Flickr

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