A criminal investigation of former president Donald Trump now being restarted by Manhattan District Attorney Alvin Bragg, and also discussed in a new book by one of his former prosecutors, Mark Pomerantz, raises vital issues of both election integrity and accountability. Both the investigation and the book address Trump’s hush money payments in the last days of his 2016 campaign and related matters. His personal attorney went to jail for campaign finance violations, admitting that the payments were illegal campaign contributions made on Trump’s behalf and for his benefit to keep voters in the dark about a scandalous affair. Yet Trump (identified as “Individual-1” by the Justice Department in court filings) emerged legally unscathed. That may now change if Bragg can overcome several major legal hurdles that are usefully identified in Pomerantz’s volume.
First some background. News initially broke more than five years ago that hundreds of thousands of dollars were spent in the run up to the 2016 presidential election to secure the silence of Karen McDougal and Stephanie Clifford, aka Stormy Daniels, about sexual encounters with Trump. Within a year of those revelations, Trump’s fixer and attorney at the time, Michael Cohen, was convicted and sentenced in federal court for his role in the scheme. That included violations of federal law because the hush money payments benefited the campaign but exceeded legal limits on the amount and source of campaign contributions. (Disclosure: one of the authors, Perry, represented Cohen in a challenge asserting the violation of his constitutional rights in connection with his federal sentence.)
The criminal charges to which Cohen pled implicated Trump as “Individual-1,” but Trump was apparently not charged federally due to Justice Department guidance that it could not indict a sitting president. The Manhattan DA at that time was also investigating the payments as part of a much larger review of all of Trump’s alleged financial misdeeds. But that hit something of roadblock after Bragg took over the office in 2022.
Now, after nearly another year has lapsed, Bragg reportedly has resuscitated at least this narrow strand of the investigation into the hush money payments. That includes bringing multiple witnesses to the grand jury and subpoenaing phone records and other documents. While it is unclear why the case had apparently been dormant for so long, we support Bragg’s review of the hush money payments and hope—and suspect—it portends a revivification of other aspects of the broader investigation.
As a baseline matter, the evidence that the former president committed crimes seems powerful. In Cohen’s guilty plea, he stated under penalty of perjury that Trump “directed him to commit a crime by making payments to two women for the principal purpose of influencing an election.” That testimony is supported by an audio recording in which Cohen and Trump discussed the hush money payment to McDougal and how it could be accomplished surreptitiously through a shell company. Trump has also indicated more than once that he was directly involved in the payments to Clifford including saying in 2018 that the payments “came from me.” He made a further admission last week on his social media platform, Truth Social, apparently acknowledging that he coordinated with Cohen to make the payments.
And all of this is backed up by the Trump Organization’s internal business records, falsely describing the reimbursements to Cohen as “legal expenses.” Trump himself signed six of the repayment checks, including while in the Oval Office. Under New York law, it is a criminal offense to falsify such business records—and a felony to do so if the offense occurs with the intent to commit “another crime,” such as these illegal campaign contributions to which Cohen pled guilty.
Although the wrongdoing seems straightforward, Bragg faces a series of hurdles in charging and convicting Trump. Some of these are identified in the new book by Pomerantz, who also discusses how to overcome them and ultimately supports bringing the case.
Legal Hurdle 1: Statute of limitations
The first hurdle, and one not discussed in the book, is that the core underlying conduct occurred at the end of 2016. So six years and counting have passed, whereas charges in a case of this kind must usually be brought within five years. The New York legislature has determined that this is the cut off for all but a handful of crimes, generally violent ones such as murder or terrorism not here at issue. Even if we count from the date of the final payment on December 5, 2017, that was more than five years ago.
But there are exceptions that allow Bragg to overcome this hurdle. For example, under New York law, the statute of limitations is “tolled” (that is, stops running) when a defendant is “continuously” outside of the state. That makes sense: when a defendant is out of New York, it is more difficult to bring them into court, and it is only fair that the prosecution has more time. New York’s highest court has interpreted that statute to mean that “all periods of a day or more that a nonresident defendant is out-of-State should be totaled” to determine how long the statute of limitations must be tolled. And the appellate court in Manhattan has found that such tolling applies to residents and nonresidents alike.
The residency distinction is potentially important, as Trump officially changed his residence from Manhattan to Florida only in September 2019. Nevertheless, that judicial decision is currently being reviewed by the Court of Appeals. Although we think the logic of the decision concerning tolling is valid and likely to be upheld, there remains a possibility that it will be overturned.
Trump apparently spent only a small portion of his four-year presidency in New York. Even if he spent a majority of his time since leaving the White House in New York (which of course he has not), the Manhattan District Attorney’s office would still have many months and possibly years on the clock, whatever the Court of Appeals decides. That is because the clock definitively stopped running once Trump officially became a nonresident living out of state in 2019, and may even have been stopped for bulk of his presidency. The Manhattan DA therefore has ample time to prosecute—despite a number of recent statements by Trump proclaiming that the statute of limitations has run out.
Other tolling exceptions might also apply to allow for more time to prosecute. For example, former Governor Andrew Cuomo in 2020 issued executive orders to suspend criminal statutes of limitations due to delays caused by COVID-19. Although there is some disagreement in New York courts as to the effect of those orders, they provide yet another potential justification to push back the time limits on bringing charges.
Legal Hurdle 2: Nexus to “another crime”
If Bragg can make it past the statute of limitations issue, then he confronts a second and perhaps even tougher legal hurdle. Even if Trump committed the crime of keeping false books and records, the statute requires proof that he did so to further “another crime” for the violation to be a felony. The problem here is that the clearest example of other crimes are violations of federal law, including federal campaign finance laws and potentially mail and wire fraud that could also trigger money laundering statutes. According to news reports and Pomerantz’s account, some in the DA’s office had questioned whether falsifying a business record to commit a federal crime—rather than a New York crime—meets the requirements of the relevant statute.
Here too, there is a path for Bragg, though it is steep. The relevant portion of the statute states that “A person is guilty of falsifying business records in the first degree … when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.” The text seems plain enough: there is no statement that this provision applies only to state offenses, and there is no exclusion of federal crimes. It is true that if you work your way through the statutory definitions of some of the terms in the statute, and the definitions of the definitions, you will find references to state law, but they are ambiguous and may well encompass federal law.
As Pomerantz points out, there is risk but Bragg could succeed here, including because there are no court decisions actually interpreting what constitutes “another crime,” for the purposes of this statute. But, on the plus side, there is no shortage of cases in which defendants have been charged in New York for falsifying records to conceal a federal crime. Indeed, Trump’s CFO, Allen Weisselberg, was just convicted of a state felony based on false entries made in federal tax forms.
Moreover, the DA can also rely on principles of statutory interpretation. That is, when judges are interpreting a statute that is silent about a point like this, they look to similar statutes for guidance. For example, New York’s sentencing law does expressly exclude consideration of certain non-New York conduct. A court could hold that if legislators want to limit the scope of a law exclusively to state offenses, they know how to do it. The legislature’s silence about whether federal offenses can qualify as a “crime” under the statute could then be interpreted to mean that it does.
Nor should Bragg give up on developing evidence of state crimes that could elevate Trump’s possible books and records violation into a felony. A useful part of Pomerantz’s book is his description of his effort to do just that. The possibilities did not fly at the time, but we think that the questions merit a fresh look. For example, conduct constituting federal criminal violations can sometimes transgress parallel state statutes as well. According to press reports, the DA is evaluating this prospect as to New York state campaign finance laws, although the details have not been disclosed.
We don’t doubt that Pomerantz gave this his best shot, and that the DA is doing so again. But one utility of the new book is that it allows us all to see where the issues are and to participate in crowd sourcing solutions. We will be delving more deeply into this topic in the second essay in this series.
Hurdle 3: Evidence at trial
That brings us to a third hurdle in any prosecution of Trump: the means by which Bragg will have to present his case to a jury. The DA would likely rely heavily on the testimony of the go-between for the payments, Michael Cohen—a convicted felon and a controversial figure who some say is tarnished as a witness. Pomerantz writes that some in the DA’s office shared those concerns, although he ultimately found Cohen truthful and compelling.
We agree. Prosecutors often have to rely on cooperating witnesses who participated in a crime to prove their case. Cohen accepts responsibility for his wrongdoing, which goes a long way with a jury. Moreover, Cohen has already served his time, so he does not stand to benefit from a potential sentencing reduction—and therefore, the prosecution will argue, is less motivated to fabricate testimony in the way that a typical cooperator praying for leniency is.
We also expect a jury to find his testimony credible because the alternative is too implausible. Who would believe that Cohen decided to spend $130,000 of his own money without discussion or direction from his boss, the beneficiary of the scheme? Cohen’s version of events is, on the other hand, entirely believable—that Trump knew of the plan and ordered him to execute it. And it is corroborated by much other evidence such as the audio tape of Cohen’s conversation with Trump; the latter’s admissions; evidence of two phone calls between Cohen and Trump shortly before Cohen wired the hush money payment; and the documentation for reimbursing Cohen, including checks bearing Trump’s signature.
Hurdle 4: Advice of counsel defense
A fourth hurdle will be overcoming the defenses Trump may raise, and indeed already is advancing in the public arena. Chief among them is “advice-of-counsel,” as Trump has himself proclaimed on Twitter years ago and more recently Truth Social. For example, he just declared that “I placed full Reliance on the JUDGMENT & ADVICE OF COUNCIL, who I had every reason to believe had a license to practice law, was competent, & was able to appropriately provide solid legal services … [T]here was NO reason not to rely on him, and I did.”
Under New York law, that defense would require Trump to prove not only that Cohen told him the hush money payments were legal but also that Trump relied on that advice in good faith. The defense has some surface plausibility, and Trump is undoubtedly echoing what his lawyers are telling him now that Bragg seems to be moving ahead.
But Cohen himself will surely deny he made any such claim to Trump. If Trump testifies to the contrary (and taking the stand will be a most risky proposition), it is fair to wonder who the jury will believe particularly when prosecutors will cross-examine Trump using at least some of the more relevant among his 30,000 proven lies. If Trump does not testify, it would be difficult or impossible for him to establish this defense.
As for Trump’s good faith reliance, the evidence is also to the contrary. By the time of these payments, Trump was a political contributor and candidate of long experience. The rules about the amounts and sources of permitted payments to benefit a campaign are well-known. It is implausible that he would have ever believed that the hush money scheme was legal, a point that is hammered home by the elaborate secrecy and the other evidence we detail above. This presents a separate problem for Trump: courts have found that a defendant cannot raise this defense if their attorney was an accomplice. That would likely be the case here if both Trump and Cohen knew that any such legal advice was being offered in furtherance of a crime. Given all the evidence, Bragg should be able to vanquish this defense.
Hurdle 5: Sentencing and jail time
A fifth and final hurdle is sentencing. Cohen was sentenced to three years. But he pleaded to eight counts in federal court, including a charge that carried a maximum possible sentence of 30 years. If Bragg charged Trump only with a books and records violation based on the hush money payments, Trump would likely not be looking at jail time. That is true even if the charge were elevated to a felony; felony falsification of business records is a “class E” felony, which is the lowest level felony in New York, and the classification that carries the lowest possible sentence—in this case, a maximum of four years. Despite incarceration being legally possible, first-time criminal defendants facing these kinds of non-violent low-level felonies in New York do not tend to get jail time.
But if Bragg were to situate the hush money charges in a broader context of other financial frauds and charges, that could substantially increase the sentence Trump would be facing and make jail time much more likely. That likely explains why the DA is putting the possibility of Weisselberg’s prosecution or cooperation back on the table with reports that Trump’s former aide is facing new potential insurance fraud charges. Weisselberg is 75 years old and is currently serving a 5-month sentence at Rikers Island. The prospect of more jail time could be enough for him to turn on his boss, despite years of having refused to do so. If he flips, further charges against Trump may include not only those insurance issues, but additional counts of falsifying business records, tax fraud, and enterprise fraud.
One of the contributions of Pomerantz’s book is to make clear the substantial basis for those broader charges. Indeed, long before he published, two of the authors of this essay released an extensive report that came to similar conclusions about the larger financial fraud case. That analysis is vindicated by the new book, and we hope Bragg will pick up some of its elements.
Whether or not those broader additional charges are brought, the facts and law afford DA Bragg a path to Trump’s indictment and conviction for his role in the hush money payments. The integrity of our elections and the interests of justice wait to be vindicated. The legal obstacles, as helpfully dissected by the Pomerantz book, are real but we think can be overcome. While many would have liked to see Bragg push this case forward long ago, we are hopeful that justice delayed will not be justice denied.
IMAGE: (L) Manhattan District Attorney Alvin Bragg speaks at a press conference after the sentencing hearing of the Trump Organization at the New York Supreme Court on January 13, 2023 in New York City. (Photo by Michael M. Santiago/Getty Images); (R) Former U.S. President Donald Trump speaks at the New Hampshire Republican State Committee’s Annual Meeting on January 28, 2023 in Salem, New Hampshire. (Photo by Scott Eisen/Getty Images)
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