Bragg Would Have Done Better To Indict A Ham Sandwich

The Trump Indictment Farcically Non-Serious

New York Judge Sol Wachtler once quipped “If a district attorney wanted, a grand jury would indict a ham sandwich.”

With his 34-count indictment of Donald Trump, Alvin Bragg has proven Judge Wachtler correct.

Unfortunately for Alvin Bragg, and more unfortunately for the rest of the United States, which must forever contend with this perversion of the American legal system, he probably would have done better for himself to find a ham sandwich to indict. A simple reading of the indictment itself shows Bragg’s case to be questionable at best, and quite conceivably fatally flawed.

The first structural problem for the indictment is that of redundancy. Each of the 34 counts is fundamentally the same as the others, excepting the particular business record at issue. Each count involves the exact same statute and charges the exact same crime—falsifying business records in the first degree.

THE GRAND JURY OF THE COUNTY OF NEW YORK, by this indictment, accuses the defendant of the crime of FALSIFYING BUSINESS RECORDS IN THE FIRST DEGREE, in violation of Penal Law §175.10, committed as follows:

The defendant, in the County of New York and elsewhere, on or about February 14, 2017, with intent to defraud and intent to commit another crime and aid and conceal the commission thereof, made and caused a false entry in the business records of an enterprise, to wit, an invoice from Michael Cohen dated February 14, 2017, marked as a record of the Donald J. Trump Revocable Trust, and kept and maintained by the Trump Organization.

All counts involve records pertaining to transactions involving Michael Cohen—all pertaining to the “hush money” paid to Stormy Daniels and Karen McDougal in return for their silence regarding their claimed sexual liaisons with Donald Trump.

The New York grand jury spent weeks meeting in secret to probe Trump’s involvement in a $130,000 payment made in 2016 to the porn actor Stormy Daniels to keep her from going public about a sexual encounter she said she had with him years earlier. Trump lawyer Michael Cohen paid Daniels, whose real name is Stephanie Clifford, through a shell company before being reimbursed by Trump, whose company, the Trump Organization, logged the reimbursements as legal expenses.

Earlier in 2016, Cohen also arranged for former Playboy model Karen McDougal to be paid $150,000 by the publisher of the supermarket tabloid The National Enquirer, which then squelched her story in a journalistically dubious practice known as “catch and kill.”

Trump denies having sex with either woman.

All counts involve the exact same statute within New York Penal Law¹.

A person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.

Falsifying business records in the first degree is a class E felony.

Exactly why this indictment requires 34 counts instead of two—one regarding payments made to Stormy Daniels and one regarding payments made to Karen McDougal—is not immediately clear to my layman’s view of the indictment.

However, even noted legal scholar Jonathan Turley is nonplussed by the 34 counts of the indictment, and the obvious repetition and cookie-cutter approach to the indictment.

We now have the indictment, and it is basically what many of us anticipated. It is a series of stacked counts of falsifying business records for the purpose of influencing the election. The indictment seems to address the lack of legal precedent with a lack of specificity on the underlying “secondary” felony. Bragg has done nothing more than replicated the same flawed theory dozens of times. This is where math and the law meet. If you multiply any number by zero, it is still zero.

Even beyond the structural weaknesses Turley infers from the repetition, there appears to be a fatal technical flaw in the indictment. The dates of the offenses are all in 2017, with the latest date being given as December 5, 2017.

Additionally, the statement of facts appears to state that the falsification of business records ended with the December 5, 2017 record entry that is the 34th count of the indictment.

The $35,000 payments stopped after the December 2017 payment.

The statement of facts details various activities and communications involving Michael Cohen and Donald Trump in 2018, but does not detail any falsification of business records after December 5, 2017.

Moreover, in his statement to the media after the indictment, Alvin Bragg explicitly described the false statements as being made in 2017.

The defendant claimed that he was paying Michael Cohen for Legal Services performed in 2017. This simply was not true and it was a false statement that the defendant made month after month in 2017.

The statement of facts filed in support of the indictment is dated April 4, 2023.

The problem here is that New York law² establishes a 5 year statute of limitations on Class E felonies.

(b) A prosecution for any other felony must be commenced within five
years after the commission thereof;

In order for the indictment to survive a challenge based on the statute of limitations, Bragg will have to show that communications involving Michael Cohen and/or Donald Trump in 2018 represent a continuation of the crime of falsifying business records—even though Michael Cohen would likely have no commentary nor input on how the Trump Organization would enter invoices and check vouchers into the company books.

Even if those communications themselves were criminal (an extremely big “if”), as detailed in the statement of facts they have no obvious bearing on the allegedly falsified bookkeeping entries. If Bragg cannot show those communications represent a continuation of the charged offense of falsifying business records then he brought this case five months too late to allow for prosecution.

As Jonathan Turley stated, the indictment is rather light on the underlying crime Trump was allegedly attempting to conceal.

While the statement of facts details the allegedly criminal conduct—i.e, the payments to Stormy Daniels and Karen McDougal in order to buy their silence about their sexual encounters with Donald Trump—it never actually states the statutory offense that Donald Trump is accused of attempting to conceal. It suggests, but never states outright, that the desire to keep these stories away from the media constituted an illegal effort to “influence” the 2016 election.

In his statements to the media after the indictment, Bragg asserted that it is a violation of New York election law³ to promote a candidacy by “unlawful means”.

Any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by
one or more of the parties thereto, shall be guilty of a misdemeanor.

However, this immediately runs into a problem of chronology. According to the indictment and the statement of facts, the falsifications of records occurred throughout 2017. Donald Trump was elected President on November 8, 2016. By the time the criminal acts charged in the indictment were committed, the election in question was already done.

In order for Donald Trump to have violated New York election law in 2017 regarding an election that occurred in 2016, he would also have to have violated the laws of physics.

Additionally, this again brings us back to the statute of limitations problem, as the New York statute Bragg is presumably referencing establishes the crime as a misdemeanor, for which the statute of limitations⁴ is two years.

There is also the equity problem arising from elevating the alleged falsification of business records to a Class E felony by arguing the falsifications were done to conceal a misdemeanor offense. 34 felonies arising from at most two misdemeanor offenses is hardly an equitable approach to justice.

Additionally, Bragg somewhat mis-states the facts surrounding Michael Cohen’s guilty plea. In describing Cohen’s guilty plea, Bragg makes it appear that the guilty plea was in relation to “illegally influencing an election”.

In August 21, 2018, Lawyer A pleaded guilty to a felony in connection with his role in AMI’s payoff to Woman 1, admitting in his guilty plea that he had done so at the
Defendant’s direction:

[O]n or about the summer of 2016, in coordination with, and at the direction of, a candidate for federal office, I and the CEO of a media company at the request of the candidate worked together to keep an individual with information that would be harmful to the candidate and to the campaign from publicly disclosing this information. After a number of discussions, we eventually accomplished the goal by the media company entering into a contract with the individual under which she received compensation of $150,000. I participated in this conduct, which on my part took place in Manhattan, for the principal purpose of influencing the election.

However, Cohen’s actual guilty plea, per the Department of Justice recitation of that plea, was to excessive campaign contributions under the Federal Election Act.

For the 2015-2016 election cycle, an individual’s contributions to a candidate were limited $2700 under the Federal Election Campaign Act. The payments to Stormy Daniels totaled $130,000, and the payments to Karen McDougal totaled $150,000. Since the transactions were characterized by the government as campaign contributions, they were undeniably in excess of the authorized limits, which the Federal Election Campaign Act clearly states is a crime⁵.

However, that the payments were characterized as campaign contributions would appear to indicate the payments themselves were notionally legal, outside of the limitations established by the Federal Election Campaign Act. Michael Cohen was not charged with and did not plead guilty to any other election-related offense, and Donald Trump has never been charged with any election-related offense.

In his statements to the media after Trump’s arraignment, Bragg appeared to intimate that the payments themselves were illegal, and thus needed to be concealed.

He cannot simply say that the payments were a reimbursement for Mr Cohen's to … Stormy Daniels. To do so—to make that true statement—would have been to admit a crime

However, in the statement of facts, Bragg does not mention that Cohen pleaded guilty to an excessive campaign contribution. Moreover, Bragg does not specify how, aside from Cohen making an excessive campaign contribution, the payments themselves would have been illegal.

Viewed as campaign contributions, the Federal Election Campaign Act permits the use of contributions for all lawful purposes⁶, provided those purposes are for the campaign and not converting the funds for someone’s personal use.

For the purposes of paragraph (1), a contribution or donation shall be considered to be converted to personal use if the contribution or amount is used to fulfill any commitment, obligation, or expense of a person that would exist irrespective of the candidate’s election campaign or individual’s duties as a holder of Federal office, including—

This immediately sets up a legal conundrum, however, because if Trump reimbursed Cohen for the payments then the payments become Trump’s contribution to his own campaign—and there are no limits to how much a person may contribute to their own campaign.

When candidates use their personal funds for campaign purposes, they are making contributions to their campaigns. Candidate contributions to their own campaigns are not subject to any limits. They must, however, be reported.

Arguably, Bragg can assert that Trump failed to report his own contributions, or that he even tried to conceal the contribution—but that claim would mean Cohen could not have been guilty of making an excessive campaign contribution; the contribution limits can only apply if someone other than Trump is making the contribution. Nothing in the text of the statute appears to preclude reimbursement for a contribution—other than, of course, the contribution limits themselves.

This theory of the underlying crime would put Bragg directly at odds with the legal theory behind the election finance charge against Cohen and his subsequent guilty plea.

Thus, despite Bragg’s post-arraignment comments, we are left with a rather glaring question: what is the actual crime which Donald Trump attempted to conceal by falsifying business records?

Without an underlying predicate crime, there can be no offense under Penal Law §175.10. The simple text of the statute precludes any such possibility.

For Jonathan Turley, the flaws in Bragg’s case warrant the case against Trump being tossed by the courts.

If the New York bench retains any integrity, this case will be thrown out as legally improper with an admonition to Bragg and his office for politicizing the criminal justice process. That, however, may be asking a lot of state judges who are elected on both the trial and appellate levels. They also may prove to be lawyers on the Wilde side.

Even Vox—hardly a bastion of Trump support—concedes that Bragg’s version of the law may lack any connection to reality.

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.

Lance Fletcher, former assistant district attorney in the Manhattan District Attorney’s office, also acknowledges the very real problems with Bragg’s case.

Lance Fletcher, another former assistant district attorney at the Manhattan DA's office, said the alleged use of shell companies and recordings of conversations between Trump and his former attorney, Michael Cohen, appear to show that Trump was aware that the payments were "improper."

Fletcher, however said that prosecutors face a number of hurdles.

"Was Trump's intention truly to defraud or was he relying on bad legal advice? If the money came from his personal account, was this money used to solve a personal problem?" Fletcher asked.

Fletcher also said that the 16-page indictment "discusses an intent to defraud, and an intent to commit another crime, but does not specify what that other crime is."

Marc Scholl, another former Manhattan prosecutor, also characterized the statement of facts as “an oddity”.

Scholl agreed that neither the indictment nor the accompanying statement of facts released by prosecutors cites which specific election laws were violated -- even though the statement of facts talks at length about how the alleged catch and kill scheme was used to influence the 2016 election.

"The statement of facts document is an oddity," Scholl said, questioning why it was not part of the indictment as a conspiracy count. Scholl did, however, say that the district attorney doesn't have to prove anything that's in the statement of facts -- just what's in the indictment.

However, while Bragg might only have to prove what’s in the indictment, to prevail on a felony charge of falsifying business records he has to prove that there was an intent to cover up a crime. Arguably, there is not even a crime in need of covering up, which would seem to collapse Bragg’s case straight away.

Even if all the technical particulars of the case can be met, and even assuming that the case survives appellate court challenges, that this case is based on untested legal theories of crime only serves to underscore the political and partisan nature of this prosecution. The filing of an indictment against Donald Trump stands in stark contrast to the lack of any indictment of Hillary Clinton for mishandlng classified information—acts by Clinton for which now-former FBI Director James Comey asserted there was ample evidence, even as he announced the decision by the Department of Justice not to pursue charges against her.

There can be little doubt that a case this dubious and problematic is being brought not because Donald Trump committed a crime, or even 34 crimes. Alvin Bragg is bringing this case against Donald Trump simply because he’s Donald Trump. That is not how the American legal system is supposed to function—a person is not supposed to be indicted because of who he is but because what he has allegedly done.

Ultimately, Bragg’s case has more holes than a slice of swiss cheese. It’s a political prosecution, and thus it is a political persecution—a determination to indict Donald Trump no matter what the cost. For all Bragg’s pretensions and posturings in front of the cameras, this is not a serious prosecutorial effort aimed at redressing a major injustice. Rather, this is a farcically unserious prosecution that is itself the injustice.

Alvin Bragg would have done better had he focused on indicting the rest of the ham sandwich and ignored the swiss cheese of a case he now has to prove in court to be true.

1. New York Penal Law (PEN) §175.10

2. New York Criminal Procedure (CPL) §30.10(2)(b)

3. New York Election Law (ELN) §17-152

4. New York Criminal Procedure (CPL) §30.10(2)(c)

5. 52 USC §30109(d)

6. 52 USC §30114(b)