There is something painfully anticlimactic about Manhattan District Attorney Alvin Bragg’s indictment of former President Trump. It concerns not Trump’s efforts to overthrow the duly elected government of the United States, but his alleged effort to cover up a possible extramarital affair with a porn star.
And there’s a very real risk that this indictment will end in an even bigger anticlimax. It is unclear that the felony statute that Trump is accused of violating actually applies to him.
The indictment charges Trump with 34 separate counts of falsifying business records in the first degree, a felony. A separate document laying out the factual basis for Bragg’s allegations against Trump points to a complicated web of arrangements between Trump, his former lawyer Michael Cohen (who is identified as “Lawyer A”), and David Pecker, the CEO of American Media, the company that publishes the National Enquirer.
Bragg alleges that these three men worked together to identify two women who allegedly had sex with Trump, and to pay them to remain silent. The women are identified as “Woman 1” and “Woman 2” by Bragg, but the first woman appears to be former Playboy model Karen McDougal, and the second appears to be porn actress Stormy Daniels.
Cohen, who pleaded guilty to a federal campaign finance crime arising out of this scheme in 2018, paid $130,000 to Daniels shortly before the 2016 election, in order to secure her silence. According to Bragg, Trump then paid Cohen a total of $420,000 over the course of 2017, much of which was intended to reimburse Cohen for the payment to Daniels.
The actual felony counts arise out of allegedly false entries that Trump made in various business records in order to make the payment to Daniels appear to be ordinary legal expenses paid to Cohen.
But Bragg built his case on an exceedingly uncertain legal theory. Even if Trump did the things he’s accused of, it’s not clear Bragg can legally charge Trump for them, at least under the felony version of New York’s false records law.
As Mark Pomerantz, a former prosecutor in the Manhattan DA’s office who played a significant role in the Trump investigation prior to his resignation in 2022, wrote in a recent book, a key legal question that will determine whether Trump can be charged under the felony version of New York’s false records law has never been resolved by any appellate court in the state of New York.
The felony statute requires Bragg to prove that Trump falsified records to cover up a crime. Bragg has evidence that Trump acted to cover up a federal crime, but it is not clear that Bragg is allowed to point to a federal crime in order to charge Trump under the New York state law.
The answer to this “gnarly legal question,” as Pomerantz put it, is simply unknown. So there is a serious risk that a New York judge will toss out the charges against Trump on technical legal grounds unrelated to the former president’s actual conduct.
And even if Bragg’s legal team convinces New York’s own courts that this prosecution may move forward, there is also a very real danger that the Supreme Court of the United States, with its GOP-appointed supermajority, could decide that it needs to weigh in on whether Trump should be shielded from this prosecution.
The Supreme Court has long held, under a doctrine known as the “rule of lenity,” that “fair warning should be given to the world, in language that the common world will understand, of what the law intends to do if a certain line is passed.” Thus, when the meaning of a criminal statute is unclear, the Constitution sometimes requires that statute to be read narrowly because an unclear criminal law did not give potential defendants “fair warning” that their conduct was illegal.
The current Court is divided about when this rule of lenity should apply, and whether it provides much protection at all to criminal defendants. But, if the current slate of justices decide that they must have the final word on whether Bragg may prosecute Trump, they could easily invoke the rule of lenity to justify asserting the Supreme Court’s jurisdiction over the case.
Bragg, in other words, has built one of the most controversial and high-profile criminal cases in American history upon the most uncertain of foundations. And that foundation could crumble into dust if the courts reject his legal arguments on a genuinely ambiguous question of law.
Bragg’s legal theory against Trump, briefly explained
In October 2016, while Trump was at the height of his first presidential campaign, porn actress Stormy Daniels was reportedly preparing to come forward with an allegation that she had sex with Trump in 2006. In an apparent attempt to quash this story, Trump’s then-lawyer Michael Cohen paid Daniels $130,000. Trump then reimbursed Cohen for this payment over the course of 2017.
Cohen later pleaded guilty to federal campaign finance violations arising out of this scheme. The idea behind that prosecution was that because this money was spent to prevent a damaging story from emerging while Trump was campaigning for federal office, it should have been disclosed as a campaign expense and should have been subject to limits on campaign donations.
Trump, in other words, is not being charged for the payments to Daniels themselves (most of the time, paying someone to keep quiet about something is not a crime). He is not being charged with campaign finance violations, either. (After Trump left office in 2021, federal prosecutors reportedly considered charging Trump with a campaign finance violation, but ultimately decided against it.)
Instead, Trump is accused of violating a state law that makes it a crime to falsify business records with the intent to defraud — and doing so specifically to conceal another crime, the federal legal violations at the heart of Cohen’s conviction.
If that sounds convoluted, well, it is. But this convoluted approach may be necessary if Bragg wants to charge Trump with a felony.
Ordinarily, falsifying business records in this way is only a misdemeanor under New York law, meaning that it is considered to be a minor crime that is only punishable by up to a year in prison.
But someone accused of falsifying business records may be charged with a felony if their “intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.”
In a vague statement made after Trump’s arraignment, Bragg claims the concealed records scheme “violated New York election law, which makes it a crime to conspire to promote a candidacy by unlawful means.” But this legal theory is not mentioned at all in the indictment or the accompanying statement of facts.
That leaves the federal campaign finance violation that led to Cohen’s guilty plea.
But it is far from clear that a New York state prosecutor may charge Trump with a felony because he tried to cover up a federal, as opposed to a state, crime.
As Pomerantz writes in his recent book, the felony statute is “ambiguous” — though it refers to “another crime,” it does not say whether this crime may be a federal criminal act or only an act that violates New York’s own criminal law. Worse, Pomerantz writes, “no appellate court in New York has ever upheld (or rejected) this interpretation of the law.”
It’s also possible that Bragg will try to link Trump to a second federal crime allegedly committed by Pecker or his company. As Bragg notes, Pecker’s company “entered into a non-prosecution agreement with the United States Attorney’s Office for the Southern District of New York in connection with AMI’s payoff of Woman 1.” But linking Trump to a second federal crime does not solve the legal problem that could blow up his felony case.
That doesn’t mean that Bragg will lose, but it does mean that he will have to convince New York’s courts to adopt the more expansive reading of the felony statute in order to sustain a conviction. If the courts embrace the more narrow reading of the statute, that would mean that Trump can only be charged with a misdemeanor.
There’s also one more twist here. The statute of limitations for the felony version of the false records crime is five years, while the statute of limitations for the misdemeanor version is only two years. Trump’s final payment to Cohen occurred in December 2017, which was more than five years ago.
That said, New York law sometimes allows the clock to be stopped on these statutes of limitations when the defendant was out of the state, and Trump spent four years living in the White House before relocating to Florida.
This case could quite easily wind up before the Supreme Court
As a general rule, New York’s own courts are supposed to have the final word on how to interpret New York’s own law. Though the US Supreme Court is the final authority on how to read federal law (including the US Constitution), the highest court in each state is supposed to have the final say on how to interpret that state’s own law.
But this case also presents at least two questions that turn on the proper way to read a federal statute or the US Constitution.
The first question is whether federal campaign finance law actually criminalizes the $130,000 payment to Stormy Daniels. Former Attorney General Bill Barr — a lawyer who, admittedly, often bent over backward to protect Trump while he was in office — was a staunch critic of this legal theory. And the question of whether Cohen could lawfully be convicted under campaign finance law was never tested because Cohen pleaded guilty and did not fight his conviction.
But the question of whether federal law prohibited the payments to Daniels is also at the heart of Bragg’s prosecution. If these payments were not a federal crime, then Trump potentially cannot be charged with the felony version of the New York law and the case against him must be dismissed.
The second federal legal question presented by Bragg’s prosecution is whether the rule of lenity requires courts to select the narrower interpretation of the New York falsified business records law. Many justices have argued that this rule of lenity is implicit in the Constitution’s guarantee that no one shall be denied liberty without “due process” of law. So Trump could ask the Supreme Court to rule that this prosecution is unconstitutional.
Will that argument prevail? It’s unclear. The current Court is divided on how broadly to apply this rule of lenity, with Justices Sonia Sotomayor and Neil Gorsuch arguing for a more expansive approach, while Justices Samuel Alito and Brett Kavanaugh push a more pro-prosecution approach.
For the moment, Alito and Kavanaugh appear to have the advantage in this fight. The Court said in Ocasio v. United States (2016) that the rule requiring ambiguous criminal statutes to be construed favorably toward the defendant “applies only when a criminal statute contains a ’grievous ambiguity or uncertainty,’ and ‘only if, after seizing everything from which aid can be derived,’ the Court ‘can make no more than a guess as to what [the legislature] intended.’”
But it’s unclear whether the Court would stick to Ocasio if the alternative were to allow the frontrunner for the Republican Party’s presidential nomination to be hauled off to prison.
All of which is a long way of saying that we may need to wait a very long time before the courts determine once and for all whether Trump may be convicted under the felony statutes he is accused of violating — indeed, if the Supreme Court gets involved in this case, we may not get an answer until well after the 2024 election.
And, of course, even if Bragg does convince the courts that Trump was properly charged with a felony, he will still need to prove that case to a jury beyond a reasonable doubt.
Update, 6 pm ET: This story has been updated to include comments Bragg made at a press conference.