Charges brought against Donald Trump by Manhattan District Attorney Alvin Bragg have resulted in varied opinions on the strength of the case, notably as the former president is at the center of multiple investigations that have been argued could pose higher legal liabilities.
The indictment unsealed Tuesday detailed 34 counts of falsifying business records in connection with payments allegedly made to quiet former adult film star Stormy Daniels and former Playboy model Karen McDougal before the 2016 election.
The charges include invoices by former Trump attorney Michael Cohen and various checks dating to 2017. Trump has denied involvement in any illegal activity, as well as any affair with either Daniels or McDougal.
The Manhattan District Attorney’s Office, referencing court documents and statements made on the record in court, states that from August 2015 to December 2017, Trump orchestrated a “catch and kill” scheme through a series of payments that he then allegedly concealed through months of false business entries.
Bragg said Tuesday that “the trail of money and lies exposes a pattern that, the People allege, violates one of New York’s basic and fundamental business laws.”
“The People of the State of New York allege that Donald J. Trump repeatedly and fraudulently falsified New York business records to conceal crimes that hid damaging information from the voting public during the 2016 presidential election,” Bragg added. “Manhattan is home to the country’s most significant business market. We cannot allow New York businesses to manipulate their records to cover up criminal conduct.”
The Wall Street Journal, in an editorial on Tuesday titled “What’s missing in the Trump indictment,” questioned the strength of the case. It called the statements of facts presented by Bragg’s office, in which Trump coordinated with the National Enquirer to kill allegations, “superfluous window dressing.”
“Here’s the big question that Mr. Bragg still hasn’t adequately answered: Where is the second crime?” the editorial reads. “Recall that falsifying records is a misdemeanor in New York. It’s a felony only if the books were cooked with ‘an intent to commit another crime or to aid or conceal the commission thereof.’ When Mr. Trump worked out this reimbursement arrangement with Mr. Cohen, what other crime was he allegedly trying to cover up?”
In a New York Times op-ed published Tuesday, Karen Friedman Agnifilo, a former Manhattan chief assistant district attorney under Cyrus Vance Jr., and Norman Eisen, a senior fellow at the Brookings Institution, argue that the books and records counts section of the indictment “are the bread and butter of the D.A.’s office.”
Trump is the 30th defendant to be indicted on false records crimes in barely over a year since Bragg took over for Vance, with 151 such counts brought under the statute.
“Every case has its unique features, but there’s nothing novel about bringing a books and records felony….If New York state law was violated, then there’s nothing to stop Bragg,” Eisen told Newsweek on Wednesday via phone, adding that he’s “befuddled” by those who say New York state law does not allow for the bumping up of state books and records crimes to a felony.
An analysis by Just Security, based at the Reiss Center on Law and Security at New York University School of Law, found that the prosecution of falsifying business records in the first degree was found to be “commonplace” in New York, used by district attorneys’ offices “to hold to account a breadth of criminal behavior from the more petty and simple to the more serious and highly organized.”
Agnifilo, in a phone interview with Newsweek on Wednesday, analogized the question of the “second charge” in Trump’s case to a burglary.
Such an instance could be nothing more than a misdemeanor trespass, she said, but it becomes a felony if you intend to commit crime if you’re inside someone else’s residence or property.
If someone goes to a stranger’s door and never commits a crime, but police find a knife and safe cracker and an individual dressed in a black ski mask, “one may be able to infer he had a criminal intent.” If the individual was carrying a pillow and a sleeping bag, it could be argued there was no intention to commit a crime.
You don’t have to prove it beyond a reasonable doubt, she said. Prosecutors can guide a jury.
“That’s how you have to look at these things with all the surrounding facts and circumstances,” Agnifilo said. “The question here is not if [Trump] committed the misdemeanor of falsifying records. The question is whether he concealed a crime or intended to commit another crime.”
Conspiracy in and of itself could be a crime,” she added, though it remains unclear which potential crimes were provided to the grand jury when they were considering intent “because it’s about the intent.”
“When you look at the surrounding circumstances here, it’s much more similar to the bank robbery allegation than the sleeping bag and pillow because of the timing of the entire situation….There’s just so much evidence there,” she said.
Agnifilo and Eisen acknowledge that a former president and his candidacy for president in 2024 muddies the situation.
Agnifilo said the question is whether there is a different standard for a former president, adding that by not bringing such a case forward, the law is being held differently due to the individual—which she deemed “a slippery slope to go down.”
Eisen, who interviewed Cohen on numerous occasions as an impeachment lawyer, said the present arguments made about the facts do not take into account the relative precedent and the full scope of the evidence.
“Whenever you have a case against a former president, there are gonna be more questions—and that’s as it should be,” Eisen said. “It is also the case that a former president should not be treated any differently than any other American. Anyone else who’d have done this would be prosecuted on these facts based on state law.”