Why the legal arguments are stronger than I thought.

Why the legal arguments are stronger than I thought.


When Manhattan District Attorney Alvin Bragg brought criminal charges against Donald Trump in 2023, I was highly skeptical of his decision. It seemed at the time that other indictments would soon follow, and that they would rest on far firmer legal ground than this one. Over the past year, though, I have realized that my initial doubts about Bragg’s indictment were misplaced. It now seems clear that Trump’s New York trial, slated to begin this week, will be the former president’s only criminal trial before the November election. The other three strong indictments against him in other jurisdictions have unfortunately been delayed by a corrupt judge, a foot-dragging Supreme Court, and a district attorney’s questionable conduct in an already complex case. This, combined with Bragg’s excellent pretrial briefing, has substantially strengthened the case for this prosecution. It is important to American democracy that Trump be forced to defend at least some of his alleged criminal conduct before a jury of his peers in advance of Election Day. And there is no reason why this shouldn’t be the case in which he’s compelled to do it. I am now fully onboard.

Start with the facts: Shortly before the 2020 election, Trump wanted to kill a story about his alleged affair with Stormy Daniels, an adult film actress. So he allegedly directed his longtime fixer Michael Cohen to pay off Daniels, through a shell company, for her silence. Afterward, Trump funneled $420,000 to Cohen in installments. But he allegedly concealed the payments by listing them as legal expenses for a retainer that did not exist.

Last year, I was uncertain whether this scheme, while sordid, rose to the level of a felony offense. I am now convinced that, if proved that he took these actions, it surely does. The falsification of business records is, by itself, a misdemeanor under New York law, but it’s a felony when it’s done with the “intent to commit another crime or to aid or conceal the commission thereof.” In his indictment, Bragg claims that Trump lied about the payments with the intent to violate election law, which is what elevates the crime to a felony. Initially, I was suspicious of this theory; what election law, exactly, was the former president attempting to violate? The district attorney’s initial statement of facts was hazy on this crucial point, raising the possibility that he couldn’t tie the underlying fraud to a state or federal statute.

Turns out he could. Bragg has argued, convincingly, that the former president intended to violate at least two election laws—one state, one federal. First, Bragg asserted that Trump and Cohen ran afoul of the Federal Election Campaign Act by making unlawful campaign contributions (in the form of a payoff) at the direction of a candidate (that is, Trump). Cohen already pleaded guilty for this very act in federal court, so it is hardly a stretch to accuse Trump of intending to break the law by participating in the crime. Second, Bragg argued that Trump ran afoul of a New York election law that forbids any conspiracy “to promote or prevent the election of any person to a public office by unlawful means.” The district attorney claimed that Trump intended to violate this statute by committing fraud in order to secure his own victory in 2020.

There is nothing especially creative about these theories; they are not an example of prosecutors stretching the law to its breaking point so it can fit over the facts of a questionable case. The application of both federal and state election codes, and their interplay with the underlying violation of New York’s business records law, is straightforward. Really, the only half-plausible argument that Trump could mount in opposition was that the Federal Election Campaign Act somehow preempted the use of New York’s own statutes to punish election-related record-keeping fraud, meaning he would be liable only for misdemeanor record-keeping violations. Two different judges rejected this claim: Juan Merchan, who’s overseeing the state trial, and Alvin K. Hellerstein, who shot down Trump’s short-lived play to remove the whole case to federal court.

This outcome is a testament to the strength of both Bragg’s case and his office’s legal skills. The district attorney’s briefing in opposition to Trump’s legal objections was masterful. And Merchan’s eventual order largely adopting the district attorney’s reasoning proved lethal to Trump’s relentless efforts to undermine the legitimacy and integrity of the case. The judge had no patience for the former president’s frivolous arguments and articulated Bragg’s theory of the case with clarity and resolve. On the eve of the trial, it is now apparent that the prosecutors are on firm legal ground. They have effectively neutralized Trump’s plan to kill the case before it can be tried on the facts.

All of which leads to the second, more practical reason I was wrong to doubt Bragg’s indictment: I thought any trial Trump faced before 2024 should be about the election. This case, however, is about the election—albeit the one in 2016, not 2020. This distinction matters, but not nearly enough to undermine the wisdom of the New York prosecution.

Obviously, Trump’s criminality during and after the 2020 election, including his work to overturn the outcome through an insurrection, is more serious than the Stormy Daniels payout. Much more serious; no debate there. It would be ideal if Trump faced trial for these alleged offenses first, because they marked a historic and devastating assault on democracy, culminating in an act of shocking violence. He deserves to be held accountable for these actions in open court, by a jury of his peers, before he has another chance to stage a coup. But thanks to Trump’s persistent efforts to run out the clock—too often indulged by SCOTUS—it’s now almost inconceivable that he will face such a trial before it’s time to vote again.

What’s left, then, is this case. And despite Republicans’ efforts to dismiss it as some sideshow about a past affair and a few mislabeled checks, it is indeed about elections: specifically, who has to follow the rules, and who gets to flout them. Trump’s bedrock belief is that he need not follow the rules that govern everybody else. He was operating under this credo when he allegedly funneled the cash to keep Daniels quiet so he could eke out a win in 2016. Other candidates, including Hillary Clinton, followed the laws, including contribution limits and disclosure requirements. Trump allegedly defied them without a second thought. Bragg’s prosecution stands for the simple proposition that a rich and powerful man like Trump cannot disregard his legal obligations as a candidate for office in a constitutional democracy. He cannot avoid consequences by asserting, under the thin guise of various legal doctrines, that he is forever immune from his day of judgment because he was once president, and he is rich.

Merchan appears to grasp that this basic principle is at stake here—another, final reason why this case has become so crucial: New York’s judiciary has proved less susceptible to political interference than the federal courts. In the classified records case, Trump drew his own appointee, Judge Aileen Cannon, who has enabled his egregious delays at every turn. In the Jan. 6 case, he drew the left-leaning Judge Tanya Chutkan, whose hard-driving work to keep the trial on schedule was derailed by unjustifiable meddling from the U.S. Supreme Court. (And the Georgia prosecution over Jan. 6 was always far too complicated to go to trial this year, even before the Fani Willis situation exploded.) What’s left is the New York court system, which has defied partisan pressure, spurned dilatory tactics, and held firm to the concept of speedy justice. My sense last year that a federal trial would somehow be more legitimate or nonpartisan was just plain wrong. A federal judiciary in the grasp of Aileen Cannon, Clarence Thomas, and the like cannot possibly be any more legitimate than New York’s courts.

There is no guarantee that Trump will be convicted in Manhattan. As always, we should trust jurors to take their oaths seriously, to serve impartially, to determine without fear or favor whether the prosecution has proved every element of the crime beyond a reasonable doubt. The deck is not stacked against Trump—who, like any other American, will be judged by members of the community where he committed his alleged misdeed. He may be convicted, or acquitted, or face a mistrial; what’s most important, at this point, is that he stands trial now. November is looming, creating a whole new set of opportunities for criminal interference with the election. Thanks to Bragg and Merchan, Trump will have to answer for at least one of his alleged past crimes before he has the chance to commit new ones. And that is a victory in itself.


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