This is the kind of case that emboldened prosecutors and wowed juries: a celebrity defendant who authorized secret payments to cover up a date with a porn star.
As the Manhattan attorney's office appeared poised to prosecute Donald J. Trump in such a case, the former president faced a series of frightening facts. Former fixer, Michael D. Cohen, will testify that Mr. Trump directed him to pay porn star, Stormy Daniels, and that the former president reimbursed Mr. Cohen and helped cover everything up.
But the salacious details alone don't make the case. Prosecutors also have to work within the law. And the district attorney, Alvin L. Bragg, may have to resort to a difficult maneuver, linking the hiding of hush money — a potential violation of state law — to a federal election.
The details of any charges that may be filed as early as this week are not yet known, and Mr Bragg could prosecute any number of crimes. However, there is a possibility that the case will rely on a legal theory that has never been assessed by a judge.
A New York Times review and interviews with election law experts strongly suggest that New York state attorneys have never before filed an election law case involving a federal campaign. Bringing an untested case against anyone, let alone a former president of the United States, risks that the courts could discard or narrow down the case.
This case could depend on Mr. Trump and his company, the Trump Organization, handled Mr. Cohen for payment of $130,000 to Ms. Daniels. Internal Trump Organization records wrongly classify reimbursement as legal fees, which helps hide the purpose of the payments, according to Mr. Cohen, who said that Mr. Trump knows about the misleading record. (Mr. Trump's lawyers deny that.)
In New York, it is a crime to falsify business records, and Mr. Bragg will likely build a case around the allegations, according to people familiar with the matter and outside legal experts. Accusations of forged business records are the bread and butter of the attorney's office's white collar practice – since Mr. As Bragg takes office in 2022, prosecutors have filed 117 felony charges, against 29 individuals and companies, according to data held by the office.
But to falsify business records to be a crime, not a misdemeanor, prosecutor Mr. Bragg had to demonstrate that Mr. Trump includes intent to commit or conceal a second crime. The crime could have been a violation of election law, under the theory that the payment served as a donation to Mr Trump's campaign, for silencing Daniels and covering up a potential sex scandal at the end of the campaign.
While prosecutors don't need to convict election law violations, or even include them in indictments, the second crime is perhaps the aspect of legal theory most vulnerable to attack.
Trump's lawyers have said the theory that the money was a campaign contribution is fatally flawed. One of the attorneys recently argued in a television interview that Mr Trump agreed to the payment to protect his family from false accusations, noting that Mr Trump has long denied having sexual relations with Ms. Daniels.
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Lawyer Joe Tacopina described the former president as the victim of his extortion.
“We distorted the law to try and catch President Trump,” he said on “Good Morning America,” adding: “He should pay money because there will be accusations that will publicly embarrass him, regardless of the Campaign. There is no crime here.”
Whether hush money can become campaign donations has not been legally resolved. At the federal level, this issue arose with the prosecution of John Edwards, a former senator and presidential candidate, in a 2012 case that ended in a grand jury deadlock on most of the charges, which prosecutors eventually dropped.
Another case occurred in 2018, when Mr Cohen pleaded guilty to federal charges involving hush money. Since he pleaded guilty, the matter was never tested in court, but some campaign finance experts and conservative legal experts argue the case is bogus.
“Michael Cohen Confesses Guilty to Something That Wasn't a Crime,” is the title in a National Review article at the time.
But the text of the New York election law suggests otherwise. It defines campaign contributions, in part, as “anything of value made in connection” with elections.
If Mr Bragg is pursuing election violations as a second crime, there are several questions that remain unanswered.
For starters, it's unclear whether he will be citing federal or state election law violations, or even both. And with either choice, there may be pitfalls.
If his office uses federal election violations as a second crime, Mr. Trump could argue that federal law has no place in state courts. And if he uses a violation of New York's election law, the defense could claim that the violation of the state's law does not apply to federal elections—in this case, the 2016 presidential campaign.
“Generally, an individual cannot be prosecuted for violating the federal election contribution limit in state court,” said Richard L. Hasen, a law professor at the University of California, Los Angeles, who specializes in election law.
Mr. Predecessor Bragg, Cyrus R. Vance Jr., grapples with the same problem. Prosecutor Vance considered the hush money case several times — it floated around the office for so long it became known as the “zombie case,” an idea that just wasn't going to die — and examined some of Trump's possible secondary crimes. been trying to hide.
They have never ruled out hush money cases, but have concerns that it may be too risky to use violations of federal election laws as a second crime. Prosecutor Mr. Vance fears a judge will find that falsifying business records can only be a crime if it aids or conceals a New York state crime, not a federal one.
Their fear stems in part from a lack of precedent—the only case like this ended in a guilty plea, meaning they weren't tested in court—as well as from New York law, which suggests that federal crimes are out of bounds for New Yorkers. prosecutor.
Against that background, the prosecutor Mr. Bragg appears to be taking a better view of using violations of the state's election law, according to people with knowledge of their thinking. The law governing elections in New York is unusual in that it explicitly applies to federal elections, not just state elections. And New York state prosecutors have secured at least one conviction in a case where they combined charges of falsifying business records with state election law crimes, even though the case involved a state, not federal, election.
Several provisions of the state election law seem to suit Mr. Cohen and Mr. Trump, according to legal experts. One, state election law 14-126forbids one person (Mr. Trump, according to this theory) from knowingly and voluntarily asking another person (Mr. Cohen) to spend money to circumvent the limit on campaign contributions ($130,000 in idle cash, way over the limit).
Other, state election law 17-152proposed as an option by analysts at Only Security And legal commentator Lisa Rubineven simpler: It is illegal to conspire to promote the election of any candidate “in an unlawful manner”.
Any state election law that the district attorney might pair with charges of falsifying business records should probably pass: The federal campaign finance law explicitly states that it overrides — precedes, in legal terminology — state election laws section when it comes to campaign donation limits.
That could rule out the possibility that Mr Bragg may be using 14-126, New York's statute against soliciting campaign expenses that violate contribution limits.
But there is an exception to federal pre-emption contained in the rules of the Federal Election Commission, known as the FEC. And it's possible that another law, 17-152, against conspiracy to promote the election of any candidate “by unlawful means,” might be able to avoid triggering federal pre-emption. The law does not explicitly regulate contribution limits.
In short, this is probably the strongest choice for Mr. Bragg.
“It appears that this provision, which prohibits unlawfully promoting elections, could fall under one of the FEC's exceptions,” said Jerry H. Goldfeder, special counsel at Stroock & Stroock & Lavan LLP and a recognized New York state election law expert.
Whatever crime Bragg is accused of, Mr. Trump is expected to file a number of other lawsuits, including alleging that Bragg missed a legal deadline to file the case. Typically, felony charges of falsifying business records expire after five years.
But Mr. Bragg's office has a way of extending the statute of limitations to cover events stemming from the 2016 payment. The New York law expanded its statute of limitations to cover the period when a defendant is continuously out of state—Mr. Trump has spent most of his time since 2016 in Washington, DC, and Florida—and former New York Governor Andrew Cuomo extended the state's statute of limitations by more than a year during the pandemic.
And there are some added perks for the district attorney: The case will be played in state court, with a state judge — likely Juan M. Merchan, the attorney in charge who oversaw the conviction of the Trump family business — and a jury in dark blue Manhattan.
These factors helped convince Mr. Goldfeder, the state's election law expert, said the case could go ahead.
“You know, this isn't a slam-dunk,” he said. “But I think it survives the motion to dismiss, and then let the jury decide.”