Although we don’t yet know entirely how it will be structured, enough of the Manhattan District Attorney’s case against Trump has found its way into the public domain so that we know the general parameters. The centerpiece of the case is a misdemeanor charge under Section 175 for supposedly falsifying his business records. The theory is that Trump paid his former lawyer $130,000.00 in a series of reimbursements to Cohen and labeled them as legal expenses to conceal that the money was really to pay Adult Film Actress, Stormy Daniels for a nondisclosure agreement and that somehow this scheme violated federal election laws.
From a legal perspective, this bizarre wielding of State prosecutorial power in pursuit of what is essentially an alleged federal crime is seriously flawed.
For starters, it is not a crime to be a philanderer, if in fact Trump did have an affair with Ms. Daniels. She has claimed publicly that there was no affair – but who knows. It is not a crime for Trump to pay so-called “hush money” either. I hate it when people call it that. It is a legal contract called a “nondisclosure agreement” and it is not in the least uncommon. Particularly for a celebrity who is a married man with many business interests. There are myriad reasons – unrelated to his Presidential Campaign – for Trump to pay the money to Ms. Daniels.
The case is legally flawed for a second major reason. Specifically the Manhattan DA has a major Statute of Limitations problem.
It’s worth noting that the Federal Elections Commission and the Department of Justice have already looked at all this and took no action back when it was fresh. Nevertheless DA Bragg is essentially trying to stuff a federal campaign finance crime into a state law business records charge. The business records case under Section 175 is a misdemeanor and the statute of limitations is two years. If DA Bragg manages to shoehorn an alleged violation of the federal campaign finance laws into the Section 175 charge – despite being a state DA and not a US Attorney – then the business records case becomes a felony and has a five-year statute of limitations. My iPhone tells me this is 2023 – nearly seven years after any such Section 175 business record crime would have occurred. So, the statute of limitations has clearly run. Nevertheless, I wait on pins and needles to see what whackado legal theory DA Bragg pulls out of his…..hat to claim the statute of limitations has somehow not expired.
Perhaps the biggest flaw in the potential indictment is on moral grounds. The whole thing is immoral and rotten to the core. This is a political weaponization of the criminal justice system. This expected indictment comes as the 2024 presidential election season is kicking into high gear. Donald Trump is leading in some polls as he seeks the Republican Nomination for President of the United States. If this indictment were truly grounded in good-faith, it could have been prosecuted back when it allegedly occurred. There’s no legitimate reason to bring it now. Only politics.
At its core, the justice system relies on trust. We must have faith and trust that the prosecutors we elect to serve our communities will wield the awesome power of their office fairly, objectively and without regard to his or her personal political biases. The public needs to have faith that prosecutors are using their power to objectively pursue legitimate crimes.
This indictment would represent a perversion of the justice process and will undermine public confidence. This blatant hyper-partisan abuse of power will undermine public confidence and poison the well for legitimate cases that truly do need to be prosecuted. New York is in the midst of a crime crisis the likes of which are unprecedented. One would hope DA Bragg would aggressively pursue and prosecute murderers, rapists, and robbers with the zeal with which he is pursuing the former President of the United States for a seven-year-old alleged bookkeeping crime.
Nobody who’s paying attention needs me to tell them that Trump is not in friendly territory. The DA and nearly all politicians in New York are democrats and Trump is the bane of every democrat’s existence. One hopes Trump will find a fair-minded and impartial judge who won’t be afraid to do the right thing and dismiss any legally defective indictment, but I am not holding my breath. I can’t even begin to ponder how Donald Trump would find a fair jury in New York.