RUTHFULLY YOURS

Donald Trump is facing a state criminal trial for violating federal election laws that Alvin Bragg has no jurisdiction to enforce.

This is not apparent from last spring’s 34-count indictment, which Bragg couched as a state falsification-of-records prosecution. In the statement of facts he issued in connection with the indictment, the Manhattan district attorney also camouflaged his intentions, knowing a plainspoken admission that he was trying to enforce federal law — congressional statutes under which the responsible federal enforcement agencies had opted not to charge Trump — would ignite a firestorm. The statement of facts makes only a fleeting allusion to Trump’s involvement in a “scheme” in which participants “violated election laws” (not otherwise specified); and it conclusively alleges that the payment of hush money by Trump’s then-lawyer, Michael Cohen, was “illegal” because Cohen has “since pleaded guilty to making an illegal campaign contribution.”

We should think of Bragg as falsifying his prosecution — just as he accuses Trump of falsifying business records.

Tellingly, Bragg avoided specifying the statute to which Cohen had pled guilty — a federal statute that the state prosecutor has no authority to enforce. And as an experienced prosecutor, Bragg must know that there is zero evidentiary value in what he touts as Cohen’s admission of guilt to federal campaign-finance felonies — made while Cohen was trying to sell himself to the Justice Department as a cooperator, hoping for leniency in an unrelated federal fraud case. Given Cohen’s lack of experience in the esoterica of federal election law, his admission does not establish even that he committed federal campaign-finance felonies, much less that Trump did.

If Bragg’s true purpose were to prove the New York crime of falsifying business records, his case would be simple and transparent: Trump directed Cohen in 2016 to pay porn star Stephanie Clifford (a.k.a. Stormy Daniels) $130,000 for signing a non-disclosure agreement (NDA). In exchange for the money, Clifford would remain silent about an affair she claims to have had with Trump circa 2006 (a credible claim but one that Trump denies). Yet, when Trump paid Cohen back in 2017, the payments were recorded in Trump’s books as if they were compensation for ongoing legal services, not reimbursement for a past debt. End of story.

This bookkeeping legerdemain might indeed have been a minor crime (though not if Trump lacked fraudulent intent, which we’ll come to); but it did not render Cohen’s payment to Clifford “illegal,” as Bragg maintains. NDAs are perfectly legal — indeed, they are a staple of litigation settlements — even if the media–Democrat complex pejoratively describes them as “hush money” deals (particularly when they are orchestrated by people the media and Democrats don’t like, such as Trump).

Contrary to Bragg’s “statement of facts,” moreover, Cohen’s payment to Clifford did not transmogrify into an “illegal” campaign expenditure just because he agreed to say it did in order to help federal prosecutors try to make an election-law case against Trump. Far more consequential than Cohen’s uninformed words was the Justice Department’s carefully considered action: It opted not to prosecute Trump.

Whether an expenditure is technically covered by federal election law is a legal conclusion, drawn in an abstruse field of law where even experts disagree — as, for example, the Justice Department and Federal Election Commission disagreed over payments that 2008 Democratic presidential candidate John Edwards arranged to silence his mistress. With his less-than-impressive credentials, it’s unlikely Michael Cohen could testify as an expert in any area of law, but we can comfortably conclude that campaign-finance regulation is out of his ken.

In my view, Cohen’s payment to Clifford was technically not a 2016 campaign expenditure. And rest assured: I believe as sure as I’m writing this — just as Bragg believes, and as I bet the federal prosecutors from my old office believed — that Trump and, derivatively, Cohen were motivated by Trump’s election prospects to arrange the NDA. Just as Edwards and his campaign were motivated by his election prospects to pay his paramour. Just as Bill Clinton’s campaign was motivated by his presidential prospects to expend funds and resort to various carrots and sticks in suppressing “bimbo eruptions” (a conveniently forgotten history that Rich Lowry recounts — one in which Trump’s 2016 opponent, Hillary Clinton, was up to her eyeballs).

But see, motive is not enough. By itself, it does not bring an expenditure within the coverage of federal campaign-finance law.

To the contrary, an expense has to be an obligation that relates directly to the campaign and would not exist absent the campaign. Stephanie Clifford’s demand to be paid lest she embarrass Trump was not a campaign expense — compared to, say, payments for polling or get-out-the-vote operations. Yes, the fact that Trump was campaigning for the presidency gave Clifford leverage to demand that he pay up. But the, er, interaction between them was wholly unrelated to any political campaign; her demand to be paid, and Trump’s decision to pay, were no more campaign expenditures than would have been a similar demand from any building contractor Trump had stiffed over the years, if such a contractor had tried to exploit Trump’s political ambitions as an opportunity to issue a “pay up or be exposed” ultimatum.

Perhaps the best way to look at it is to ask yourself: What would Bragg, Democrats, and the media have said if Trump used campaign donations to pay hush money to a porn star? Is there any doubt that they’d have said he fraudulently used campaign money to pay private obligations?

Even if Cohen had been right (and I believe he was wrong) that his payment of his own money to Clifford was a crime, that would not have made it a crime committed by Trump. As the candidate, Trump was not subject to the same spending restrictions Cohen was.

To be sure, if the payment of hush money had been a campaign expenditure under federal law, Trump would have been required to disclose it — the disclosure mandate applies to candidates even though the spending restrictions do not. But this, too, explodes Bragg’s statement-of-facts assertion that “Trump hid damaging information from the public during the 2016 presidential election.” Because Cohen paid Clifford in October 2016, the next reporting period would have been after the election. That is, Trump would have had no legal obligation “during the 2016 presidential election” to reveal the payments to Clifford charged in Bragg’s indictment.

To repeat, the Department of Justice (under Trump and Biden) and the Federal Election Commission investigated the 2016 hush-money payments but took no enforcement action against Trump. Why? Because (a) the payment was not technically a campaign expenditure, (b) federal spending restrictions did not apply to Trump, and (c) even assuming arguendo that Trump had a disclosure obligation, the lack of regulatory disclosure cannot possibly have influenced the outcome of the 2016 election since no disclosure would have been required prior to the election.

And let’s not forget: The federal authorities that have jurisdiction to enforce federal election law more often than not treat violations far more egregious than Trump’s as grist for the imposition of civil fines, not criminal prosecution. President Obama’s 2008 campaign, for example, concealed millions of dollars in improper contributions and delayed in making refunds; the FEC imposed a $375,000 fine — note that even the fine (to say nothing of the violations) was larger than the penny-ante (alleged) violations for which Bragg is endeavoring to prosecute Trump.

Bragg seeks not merely to enforce federal election law under the guise of a state falsification-of-business-records indictment; he would also make up his own vaporous standards to avoid the rigor required of the federal agencies that are actually authorized to enforce federal election law. Consistent with the selective-prosecution practices that are the defining feature of the Democrats’ 2024 lawfare strategy, Bragg’s standards are specially tailored to Trump.

It is quite remarkable. The Biden Justice Department is currently suing the state of Texas to prevent it from detaining illegal aliens, even though federal law explicitly mandates detention, because the state’s enforcement action conflicts with the federal government’s non-enforcement policy. Yet, here we have a situation in which the agencies in charge of enforcing federal election law opted not to prosecute Trump, a state district attorney has decided to prosecute him anyway (even though, unlike Texas, which does have authority to detain illegal aliens, Bragg has no authority to enforce federal election law), and the Biden Justice Department takes no action — apparently content as long as Bragg’s quarry is Biden’s 2024 campaign rival.

And then there is the question of harm. Infamously, Bragg is soft on real crime, preferring alternatives to prosecution, pleading down serious felonies to less serious offenses, and so on. But here, where Trump did no harm, Bragg has taken a single instance of dubious bookkeeping and carved it into 34 felonies, theoretically exposing the Democrats’ arch nemesis to over a century’s imprisonment. Let’s stipulate that Trump falsely booked the reimbursement of a debt as if it were payment for ongoing legal services. What harm was done?

Although Bragg has previously prosecuted the Trump organization for tax violations, he does not allege that the state was deprived of tax revenue or otherwise cheated by the way the NDA payments were recorded. To the contrary, in reimbursing Cohen, Trump and other company executives doubled the $130,000 NDA payment to $260,000 precisely because it was expected that Cohen would pay income tax on it. That is, the manner in which the reimbursement was booked made it a taxable event for Cohen; the payment was thus inflated to ensure that Cohen would be fully reimbursed after paying taxes. (Payments in satisfaction of a debt are not income and not taxable as such; legal fees, by contrast, are taxable income.)

In terms of falsifying business records, yes, the expenditure was for one purpose, but Trump booked it as if it had been for a different purpose. Mind you though: That still may not be enough to establish the New York crime of falsifying business records. The relevant penal statute, §175.05, requires the state to prove beyond a reasonable doubt not just that the record entry was false, but that the defendant acted “with intent to defraud.” Generally speaking, fraud is a financial crime, involving schemes to acquire money or property by false pretenses. There is no indication that Trump intended to trick anyone into parting with assets.

Under New York law, deceptive schemes to cause other types of harm can also qualify as fraud. Nonetheless, there must be some concrete harm to establish fraud. It does not appear that New York state or anyone else was harmed by Trump’s misdescription of a loan repayment as the payment of legal fees. Moreover, I assume Trump would argue that, because Cohen was his lawyer and the formal NDA with Clifford was a legal contract, describing the payments to Cohen as legal fees was not wholly fictional, much less actionably fraudulent. Again, the amount Trump paid Cohen significantly exceeded the $130,000 loan amount, and Trump would muddy the water by insisting he understood he was paying Cohen for legal services.

Did Trump have fraudulent intent for purposes of §175.05? It would be an interesting question if Bragg had brought an actual falsification-of-business-records prosecution. But he didn’t, and couldn’t. That crime is a misdemeanor. New York’s categorization of it as such makes sense: It is a nonviolent, not particularly serious offense — one that prosecutors should not even think about charging in the absence of concrete harm (and, of course, in the absence of being able to demonstrate that they enforce the law even-handedly against similarly situated business people). More to the point, because falsification of records is not a grievous crime, the statute of limitations for charging such an offense is just two years. Since Bragg alleges that Trump’s recordkeeping on the transaction concluded in December 2017, any charge should have been brought by late 2019 — two years before Bragg was elected DA (but around the time that federal prosecutors and Bragg’s predecessor concluded that there was nothing worth prosecuting).

Bragg, however, has not brought a falsification-of-business-records case, despite what his indictment says. He is attempting to prosecute a federal campaign-finance case.

Judge Juan Merchan is abetting Bragg’s patently partisan gambit.

On Monday, Judge Merchan overruled Trump’s objection to Bragg’s offering proof about the infamous Access Hollywood tape, in which Trump was heard to boast about being sexually aggressive with women. Besides inflaming the jury against Trump, Bragg’s purpose is obvious.

The contents of the recording were published by the Washington Post on October 7, 2016 — about a month before Election Day. That had Trump’s campaign reeling. He and his advisers feared that any further unsavory disclosures of a sexual nature would harpoon his White House bid. Therefore, he stepped up his efforts to cover any such tracks. With the intercession of Trump’s friends at the National Enquirer, Cohen was alerted to Clifford’s demand to be paid for her silence. According to Cohen, Trump wanted him to delay making the payment, in hopes that Election Day would pass and Clifford’s leverage would be severely diminished. But Clifford and her attorney kept up the pressure, so Cohen paid her on October 26, after getting assurance that Trump would pay him back post-election.

Bragg intends to put this evidence in context with an overarching scheme, begun in 2015 (when Trump’s presidential campaign began), in which Trump, Cohen, and National Enquirer executives undertook to buy the silence of two other people with potentially explosive stories: Playboy model Karen McDougal, who also credibly claims to have had an affair with Trump circa 2006 (i.e., shortly after Trump married his now-wife, Melania, and their son was born), and Dino Sahudin, a doorman at Trump Tower in New York City, who claimed that Trump fathered a child out of wedlock in the late 1980s. McDougal was paid $150,000 by the Enquirer for the exclusive rights to her story. Sahudin was paid $30,000, although the Enquirer ultimately determined that his story was untrue. Both were released from their NDA obligations after the election, a fact from which Bragg will contend that it was the campaign, not other personal concerns, that motivated Trump to pay hush money.

Again, motive is not enough if the expenditures in question are not technically campaign expenditures — bills necessary to the conduct of the campaign, not non-campaign bills that the campaign intensifies the incentive to pay. Nevertheless, Bragg is deeming them campaign expenditures that Trump hid, to the detriment of New York Democrats who were denied their apparent entitlement to a Hillary Clinton presidency — Hillary’s own election-law offenses, against which Bragg naturally took no action, having been insufficient to get her across the finish line.

For this, Bragg is relying on New York’s exacerbated-business-records-falsification provision, §175.10, which makes the offense a felony if the records were falsified with an intent to defraud that included “an intent to commit another crime or to aid or conceal the admission thereof.”

I don’t believe Bragg can even show an intent to defraud — his theory that New York (indeed, the known universe) was harmed because Trump won in 2016 is not the concrete, particularized harm that is an essential ingredient of fraud crimes. But that aside, remember that at bottom, the “other crime” Bragg maintains Trump was trying to conceal was a federal campaign crime — one that the feds themselves did not believe Trump committed, and that Bragg is politically engineering into a new election law of his very own.