Former President Donald Trump on Saturday shocked the world with an announcement that he expects to be arrested Tuesday in connection with an ongoing investigation by Manhattan District Attorney Alvin Bragg, a case legal scholars have suggested has a questionable legal basis.
The investigation involves Trump's 2016 alleged payment of $130,000 in hush money to Stormy Daniels via his former personal attorney, Michael Cohen, whom he later reimbursed.
While Bragg has not announced specific charges, legal scholars such as George Washington University Professor Jonathan Turley are predicting an indictment for falsifying business records under New York Section 175. Such a charge would likely be based on Trump's labeling his reimbursement of Cohen as a legal expense.
Trump's attorney, Joe Tacopina has argued that Trump's payment to Cohen was in fact a legitimate legal fee. Trump, he noted, never directly paid Daniels any money. Rather, he only paid his own lawyer for services rendered, i.e. legal fees.
"The payments were made to a lawyer, not to Stormy Daniels," Tacopina said last week on MSNBC. "The payments were made to Donald Trump's lawyer, which would be considered legal fees. Michael Cohen ... was his lawyer at the time and advised him that this was the proper way to do this to protect himself and his family from embarrassment. It's as simple as that."
The host then argued that the money Trump paid to Cohen went to Stormy Daniels and was therefore not a legal fee.
"It went to Stormy Daniels from Michael Cohen," the Trump attorney countered. "He decided he was going to do it this way and asked for the reimbursement of what he billed as legal fees. That is not a crime."
Ordinarily, such a charge would be considered a misdemeanor subject to a two-year statute of limitation, meaning Bragg cannot pursue it solely on this basis. Bragg does, however, have the discretion to convert it into a Class E felony, if he can prove that Trump's alleged "intent to defraud involved further criminal intent to either hide the commission of another crime or to assist in the commission of that other crime," according to Saland Law.
In order to meet even the threshhold standard for prosecution, Bragg would therefore need to argue that Trump falsified business records concealing his reported "hush money" payment to Daniels with the intent to conceal another crime.
As a hush money payment to ensure silence about an affair would not be illegal in and of itself, Bragg's case would likely hinge on a possible campaign finance violation. If Cohen's payment to Daniels constituted an illegal campaign contribution, then the falsification of records would have concealed an underlying crime, providing legal predicate for a Class E felony charge of first degree falsifying business records. Trump would face up to four years in prison if convicted on the charge.
Bragg, therefore, needs to demonstrate that the payments occurred specifically with the intent to affect the election, a prospect Turley called "extremely difficult," given the myriad other legitimate reasons Trump might have for wanting to keep an alleged affair out of...
