Manhattan District Attorney Alvin Bragg made headlines this past week when he invited former president Donald Trump to testify before a grand jury convened to weigh evidence that the former president was involved in illegal hush money payments on the eve of the 2016 election. According to legal experts who have weighed in on the news, this move by Mr. Bragg indicates that criminal felony charges against Mr. Trump are only a matter of time, with some predicting an indictment by the end of March.
What is not at all clear, however, is with what exactly Trump could be charged. The New York Times cites information from “four people with knowledge of the matter” to the effect that Trump will be charged with falsifying business records to conceal the hush money payments. The problem is, as the Times explains, that falsifying business records is a misdemeanor in New York. To justify a felony charge, Bragg would not only have to prove an intent to falsify the records, but also prove that it included an intent to defraud to omit or conceal a second crime.
In this case, the second crime presumably would be the violation of New York State election law, even though hush money itself is not inherently illegal – the prosecutors could argue that the payout became an improper donation to the Trump campaign under the theory that it helped his campaign.
The Times goes on to note the obvious, that “[c]ombining the criminal charge with a violation of state election law would be a novel legal theory let alone against the former president who is also an announced candidate for reelection.”
One wonders why the Manhattan DA is making such a big deal of all of this, especially since his team will have to do some fancy legal footwork and struggle to make out a case. We think the answer is that Bragg is confident that there is no way a New York jury would acquit Trump of anything, so there is nothing to lose.
Perhaps it is time that our prosecutors were reminded that their job is to fairly prosecute crimes, and not conjure them up because they can.