MOSCOW (Pakistan Point News / Sputnik - 07th April, 2023) Manhattan Attorney General Alvin Bragg will need documentary evidence showing intent to conceal or commit a crime in order to build a case against former US President Donald Trump, according to lawyers surveyed by Sputnik.
Trump has been charged with 34 counts of falsifying business records in the first degree in connection with his alleged involvement in a $130,000 hush money payment and subsequent cover-up involving a purported affair with adult film star Stormy Daniels, among other things. Trump pleaded not guilty to the charges during his arraignment on Tuesday. The ex-president also criticized the US justice system as "lawless" and being used to "win elections," referring to the fact that he was indicted amid his bid to win the 2024 presidential election.
Bragg became Manhattan's first Black district attorney after being elected in November 2021 by promising, among other things, to go after Trump. While he certainly upheld that promise with the recent indictment, he still has a tough road ahead, as the case against the former president has issues that have to be addressed if the prosecution wants it to reach the finish line.
The main thrust of the case is that the alleged hush payment checks were listed on the books as legal fees rather than a payoff by the Trump Organization and associated entities. However, simply falsifying business records is considered to be a misdemeanor under New York law, and Trump is facing felony charges, meaning he is accused of falsifying a record to conceal or commit another crime. In this case, the alleged crimes are said to be campaign finance law violations, as the prosecution deems those payments effectively to be a donation from Trump to his own campaign with a goal to allegedly influence the 2016 presidential election. The Trump defense, however, has maintained that the payments, which in and of themselves are not criminal, were made to spare Trump's family the embarrassment.
"It may be difficult for Alvin Bragg to prove a campaign finance violation in this case, as it would require demonstrating that the hush payment was made specifically to influence the outcome of the election. If the former president can provide evidence that the payment was made solely to protect his family from scandal, it could weaken the prosecution's argument," Sara Sharp, a co-founder and partner at SK&S Law Group, said.
Meanwhile, a former US Justice Department employee, who chose to remain anonymous, observed that it has been difficult to argue that a political candidate buying silence to avoid a sex scandal warrants a felony conviction.
"For example, the prosecution of former presidential candidate John Edwards collapsed in large part because of how vague and ambiguous these rules can be when they are applied under these facts. As a result, it will probably be difficult for the prosecution to argue that Trump understood these laws or even intended to break them," the anonymous legal specialist noted.
In addition, there is the matter of the statute of limitations for the false records crime, which is two years for the misdemeanor version and five years for the felony version.
"Because the last alleged payment was in December 2017, both claims may be time-barred, which the prosecution will need to argue against in court. If the prosecution cannot argue why the statute of limitations argument fails, then the court will not have the jurisdiction to hear the case," the anonymous expert said.
At the same time, they also drew attention to the fact that it will likely require the state prosecution to argue and prove that Trump violated campaign finance law.
"This is because many legal academics in the US have argued that it is unconstitutional for state authorities to enforce Federal laws rather than federal authorities. For example, the Supreme Court case Arizona v. United States held that Arizona could not criminalize violations of federal immigration law," the expert added.
Currently, the prosecution's argument relies on the testimony of Trump's former fixer Michael Cohen, who is said to be the one who paid off Stormy Daniels and who previously pled guilty to violations of campaign finance law. The case would require tangible evidence to back up its claims, Ben Michael, the founder of criminal defense law firm Michael & Associates, said.
"The lynchpin of this case is going to be any existing documents, recordings, or communications between Trump and his associates. While the testimony of Michael Cohen and other insiders could make a strong case, this is probably going to be hard to prove without documentary evidence of some kind. Because our campaign finance system allows money to move around pretty freely to and from multiple parties, the mere exchange of money isn't going to be enough to make a case. There needs to be some kind of smoking gun that clearly outlines the intent," Michael explained.
The anonymous US-based lawyer suggested that while the prosecutors will rely on Cohen actually pleading guilty to campaign finance law violations, it may not be as simple as it would seem.
"Cohen may have pled guilty to the violations of campaign finance law because it made prosecutors in that case more likely to cut him a better deal when it came to his sentencing, rather than an actual admission of guilt. Even if was an admission of actual guilt, the prosecution will still have to argue that Cohen's admission is a statement of the facts that actually occurred and, therefore, should apply to Trump," they said, adding that "it is unknown whether Cohen will be called as a witness, but his past history with Trump could lead to arguments that his testimony is unreliable and should not be relied upon."
When asked about Cohen's testimony, Sharp said that even though the Trump defense team could try portraying Cohen as an unreliable witness, "it will ultimately be up to the judge or jury to determine the weight and credibility of Cohen's testimony."
PRESIDENTIAL CAMPAIGN BEHIND BARS?
The case against Trump is especially sensitive due to the fact that he has already announced his 2024 presidential campaign and is currently the most popular candidate among Republicans. This raises the issue of Trump being able to campaign for the presidency and/or discharge the functions of the office if elected while in prison.
"As for the question of whether Trump could run for president while incarcerated, it would depend on the laws of the state in which he is incarcerated and the specific circumstances of his conviction. It is also important to note that being incarcerated could have significant implications for his ability to campaign effectively," Sharp stated, adding that "it is impossible to predict exactly how long this trial will go on, and whether Trump will be sentenced by the time of the campaign."
The anonymous lawyer, for their part, cited internal memos from the Department of Justice in 2000 and the Office of White House Legal Counsel in 1973 on the issue, both concluding that incarceration cannot be used as a pretext to replace a president under the 25th Amendment , since this reason was not considered by its authors. Nevertheless, they said that the issue has never been formally addressed by US law. However, with the complexity and high stakes of this trial, it could go on for years before it is over.
"Insiders who are familiar with Trump's defense team have argued that he has assembled an excellent group of lawyers who will fight the case to the best of their ability. Finally, it is likely that this is only the first of many lawsuits against Trump. Fani Willis, the district attorney for Fulton County in the US state of Georgia is also currently weighing potential charges against Trump," the lawyer concluded.
