Donald Trump’s defense lawyers blasted Manhattan District Attorney Alvin Bragg’s hush-money case on Tuesday, saying it lacks the kind of convincing detail he’ll need for a slam-dunk prosecution against the first-ever former president to face criminal prosecution.
A number of legal experts and former prosecutors, however, said Bragg was smart to leave out critical details of his case in order to gain competitive advantage over Trump’s aggressive team of lawyers and political influencers.
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Covering up “crimes relating to the 2016 election”
The indictment handed up by a Manhattan grand jury accuses Trump of 34 felony counts of falsifying business records as part of a scheme to prevent stories about Trump’s alleged affairs with two women from going public in the wailing days of the 2016 presidential campaign.
That included paying $280,000 as part of a “catch-and-kill” campaign to silence adult film actress, Stormy Daniels and former Playboy model Karen McDougal from telling their stories and hurting Trump’s election chances.
Another $30,000 was paid to a former Trump Tower doorman who was trying to sell information “regarding a child that the Defendant had allegedly fathered out of wedlock,” according to a statement of facts that accompanied the indictment.
Such falsifying business records cases are usually filed as misdemeanors in New York state. But at a news conference after Trump’s arraignment, Bragg said the charges became felonies because of the records were falsified to conceal another crime.
“Why did Donald Trump repeatedly make these false statements?” Bragg asked. “The evidence will show that he did so to cover up crimes relating to the 2016 election.”
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Trump lawyers not impressed
Trump’s newly hired criminal defense lawyer, Todd Blanche, downplayed the indictment, telling reporters “there’s not really any surprises” in it.
“I know there was a lot of talk over the past several weeks and the past several days about what’s going to be in this indictment and what’s going to be there that we don’t know, (that) there must be something besides what we ‘ve been talking about for the past four or five years,” Blanche said. “There wasn’t. There’s nothing. The indictment itself is boilerplate.”
“It’s really disappointing,” Blanche added. “It’s sad, and we’re gonna fight it.”
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Not tipping his hand
The indictment and statement of facts are long, but lack the kind of supporting detail that’s contained in what’s known as a “speaking indictment,” in which the alleged criminal acts are laid out in detail.
But Bragg is likely keeping details out of the indictment so as not to tip his hand too early, said John Dean, lawyer and former White House counsel for President Richard Nixon who tested against him during the Watergate scandal.
“He has to put people on notice and he’s done that,” said Dean, adding that Bragg and his team have filed dozens of these “bread and butter” falsification of records cases and have become very skilled at them. “I think that by saying less, they’ve opened themselves up to less attack in the pretrial motion stage, a shrewd move on their part.”
“Politically, it gives Trump probably more to talk about and more opportunity to claim all of his grievances,” Dean said. “But, legally, I think that they probably have put together a very powerful case.”
The statement of facts does provide some detail about the alleged factual basis for the felony charges, according to defense lawyer and former federal prosecutor Alex Little.
For example, the indictment makes it clear that former Trump lawyer and self-styled fixer Michael Cohen will be the central witness in this case, Little said. “His invoices are mentioned in numerous counts, and it’s clear from the charges and statement of facts that he cooperated closely with the prosecutor’s office as it built this case.”
There’s also likely to be a lot of evidence about the National Enquirer and its parent company, American Media, Inc., given its key role in the alleged catch-and-kill scheme, according to Little.
“If Bragg can convince a jury those facts are true,” Little told USA TODAY, “it will be a difficult case for the former president.”
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A legal ‘disconnect’ in Bragg’s case?
Presenting such a bare-bones indictment makes it very hard to determine how strong a case Bragg plans to mount, including what evidence investigators might use to support turning the charges into felonies, some legal experts say.
Paul Rosenzweig, a former federal prosecutor, described Bragg’s filing as “a very ‘plain vanilla’ indictment.”
“It doesn’t even say what the ‘other crime’ is that converts misdemeanors to be converted into felonies,” he said.
By focusing almost exclusively on the $130,000 paid to Daniels, “There is a disconnect between those narrow charges and the broader statement of facts which speaks to a longer plan to catch and kill bad stories about Trump,” Rosenzweig said. “Bragg has yet to fully explain that choice.”
Prominent defense lawyer William Jeffress, Jr., agreed that the indictment revealed very little about Bragg’s prosecutorial strategy and legal theories.
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“Assuming the 34 entries in business records were false because the payments were described as legal fees, the only disputed issue appeared to be whether they were made with Trump’s knowledge to commit or cover up another crime — presumably a campaign finance violation,” said Jeffress , former chair of the American Bar Association’s Criminal Justice Standards Committee.
“There is enough evidence to support a jury verdict that he intended the expenditures to influence the election,” Jeffress said, “but (Trump) will likely claim he just wanted to hide it from his wife — and the jury will decide.”
An Al Capone strategy?
Gene Rossi, a 30-year civil and criminal lawyer at the Justice Department, said the case is much stronger than the indictment suggests, especially when reading between the lines of the Statement of Facts.
“The statement of facts provides ample evidence and detailed evidence of the contours and the aspects of this scheme to defraud, and to conceal payments because there was an election coming up,” Rossi said. “When you have documents that are blatantly false, and apparently you have that here, and you have witnesses that corroborate each other, that combination is very powerful for a jury.”
Rossi, who prosecuted many tax law cases, also said one critically important element of Bragg’s case is easy to overlook because it is mentioned very briefly in the statement of facts: “The participants also took steps that mischaracterized, for tax purposes, the true nature of the payments made in furtherance of the scheme.”
That suggests that Trump and Cohen actually got tax breaks from the fraudulent scheme, Rossi said.
“That’s a bold allegation. And if it’s proven, it will have a lot of jury appeals,” Rossi said. “Because remember this: Al Capone dodged a lot of crimes, but he couldn’t dodge tax crimes. And he served eight years for it.”