While pinning Trump case to campaign laws, Bragg eyes a backup plan

The much-awaited charges against Donald Trump show Manhattan District Attorney Alvin Bragg (D) plans to largely rest on campaign laws to prosecute the former president for obscuring his reimbursement of hush money payments.

But sprinkled into charging documents and public statements from Bragg are references to tax law violations — a sign New York prosecutors may be hedging their bets by bringing a broader case against the former president.

Trump was charged on 34 felony counts during his arraignment Tuesday, each stemming from an arrangement Trump made with fixer Michael Cohen after he made a $130,000 payment to adult film star Stormy Daniels.

The case is built on falsification of business records charges, with prosecutors arguing the “unlawful scheme” violated election laws.

“The defendant orchestrated a scheme with others to influence the 2016 presidential election by identifying and purchasing negative information about him to suppress its publication and benefit the defendant’s electoral prospects,” Bragg’s office wrote in a statement of facts accompanying the bare bones indictment.

Hush money payments are not illegal, but when Trump reimbursed Cohen for the payoff, the funds were characterized as legal expenses.

Falsifying business records is a misdemeanor under New York law, one that can be bumped to a felony when done to obscure another crime.

The financial crimes that serve as the underlying basis for Trump’s prosecution are what Bragg referred to as the “bread and butter” of his office, located in the financial capital of the world.

But in hanging much of the case on election laws, Bragg delves into more complex territory, one that requires demonstrating the payments were made in an effort to influence the election as well as grappling with Trump’s status as a federal candidate in the state-level prosecution.

Bragg outlined two voting statutes he alleges Trump violated.

“The scheme violated New York election law, which makes it a crime to conspire to promote a candidacy by unlawful means. The $130,000 wire payment exceeded the federal campaign contribution cap,” he said.

Bragg’s choice of state law is a telling one. In choosing that statute, the prosecutor sidestepped other options under New York law, including those dealing with state campaign finance violations that may have problematic language when it comes to dealing with a federal candidate.

Meanwhile, exceeding campaign contribution limits, a federal crime, is the same crime Cohen pleaded guilty to, one that will require showing the spending was done to influence the election.

Trump’s attorneys have already begun to counter both.

They’ve argued the payout to Daniels via Cohen was not to win the election, but rather save Trump’s marriage by burying the story of a sexual encounter he denies. And they’ve said that the state doesn’t have the power to prosecute Trump, a federal candidate, on either state or federal charges, asserting that such charges would have to come from a federal prosecutor.

“We’re not going to get to a jury… I think this case is going to fall on its merits, on legal challenges well before we get to a jury,” Trump attorney Joe Tacopina said in a Wednesday morning interview on NBC News.

Bragg does appear to have evidence Trump saw the payout through the lens of the election. Trump allegedly told Cohen, according to paraphrasing of the conversation detailed in court documents, that “if they could delay the payment until after the election, they could avoid paying altogether, because at that point it would not matter if the story became public.”

Norm Eisen, counsel for Democrats in Trump’s first impeachment, has encouraged Bragg to bring charges under both federal and state election laws.

“Look, it can’t be that Donald Trump lives in some special universe when neither state nor federal campaign law applies to him. It has to be that one or the other applies, and I don’t think that a judge is going to buy into that Catch-22,” he told The Hill.

But Bragg implied there may be more charges to the case.

The statement of facts notes that Trump’s organization inflated payments to Cohen to account for the taxes the fixer would have to pay on what was being reported as income rather than a reimbursement. 

“If Trump knows about that, was aware of that, and approved of the falsification of the records in order to conceal the hush money payments and in order to allow Michael Cohen to get a full repayment for the hush money payments he had made, then the tax violation here — offering a false instrument for filing — is in fact one of the crimes that is being covered up through the falsification of business records,” said Josh Stanton, an attorney with Perry Guha who has penned analyses of Bragg’s case. 

The documents say Trump and others “mischaracterized, for tax purposes, the true nature of the payments made in furtherance of the scheme,” but when asked to elaborate, Bragg declined.

“I’m not going to go beyond the plain language in the statement of facts, we think it speaks for itself,” he said in a press conference with reporters just after Trump’s arraignment concluded.

Eisen said the tax statute does give Bragg additional options as he builds his case. Attorneys aren’t expected in court again until December on the matter.

“The DA is notifying Trump and all of us this may be an issue that he will litigate at trial. You know, it’s very common for prosecutors to cast a broad net and then to focus in on their case,” Eisen said.

“Think of it this way. There’s two campaign finance [violations]. There’s state campaign finance violations; federal campaign finance violations — that’s belt and suspenders. This is an additional possibility. Think of it as belt, suspenders, and duct tape. He’s taking no chances on holding up his case, and there’s nothing wrong with that.”

Trump on Tuesday pleaded not guilty on all 34 counts, but it’s still not entirely clear what charges Bragg plans to bring.

Trump’s attorneys must file a bill of particulars in order to get the full scope of Bragg’s claims.

“They do not have to specify the crime at this juncture; they will have to down the road. And the best way to read the sprinkling of the reference to potential tax violation is that they are clearly reserving the right to use that state tax statute as a third way of elevating what would ordinarily be a misdemeanor into a felony,” said Jeff Robbins, a former prosecutor now in private practice.

The dozens of charges reflect each of the checks that Trump signed to Cohen, at least nine of which he signed directly. 

Stanton noted it’s not unusual for prosecutors to hold back on some elements of their case.

“This is a lot of counts, but it’s really a simple indictment: Trump is charged with falsifying business records in his repayments to Michael Cohen through 11 checks in 2017, including nine he signed personally,” he said. 

“The detailed Statement of Facts makes plain that Bragg is pursuing both campaign finance violations, as well as tax offenses to bump up the charges to felonies. He need not say that outright in the indictment. Indeed, that’s normal.” 

Updated at 5:36 p.m.