Alvin Bragg Might Have Overplayed His Hand

Legal experts have raised questions as to whether the charges brought forward by Manhattan District Attorney Alvin Bragg against Donald Trump will stick.

On Tuesday, Trump became the first U.S. president to be arrested, after an investigation into hush money paid to adult film star Stormy Daniels. The $130,000 sum was to keep an alleged affair the pair had a secret prior to the 2016 election.

The former president pleaded not guilty to 34 counts of falsifying business records. He denies any wrongdoing in the case, including Daniels' claim that they had an affair.

The charges accuse Trump, his attorney former Michael Cohen, and David Pecker, the former head of the company that publishes the National Enquirer, of arranging to pay women to keep secret their sexual encounters with Trump to boost the former president's campaign.

Trump is accused of falsifying business records to make the payment to Daniels appear to be legal expenses when Cohen was reimbursed for the $130,000 sum. Falsification of business records is prosecuted as a misdemeanor in New York, but can be upgraded to felony if it was allegedly done to conceal another crime.

In this case, that second crime could be a violation of election law if prosecutors could argue that the $130,000 paid to Daniels amounted to an improper campaign donation. The money could be seen to have been used to help Trump's 2016 election chances by stopping negative stories about his personal life from coming out.

Los Angeles criminal defense attorney Joshua Ritter, a partner with El Dabe Ritter Trial Lawyers, told Newsweek he questioned the strength of Bragg's investigation. He queried if the felony statute that Trump is accused of violating could apply to the former president.

"The first surprise is that there's nothing surprising here. There was so much speculation and conjecture as far as what kind of new evidence they may have uncovered or what theory they may have developed. But it turned out to be exactly what everyone thought it would be: this is just about falsifying business records," Ritter said.

"This is not 34 different instances of criminal endeavors, but one criminal endeavor that prosecutors have captured in 34 different ways. This is not an illegal strategy, but typically, if a crime is committed in several different bites, it's charged as one overall crime with different predicate acts being a part of that crime," Ritter added. "If you break into a safe and steal jewelry, you're charged with burglary, not with each individual item of jewelry stolen being a separate burglarized item.

"This could be the first thing Trump's legal team attacks, arguing prosecutors have entirely overcharged him," said Ritter.

Another potential issue with Bragg's case is that New York prosecutors have never tried to link a 'falsifying business records' charge with a violation of state election law involving a presidential election. As a result, it is still possible that a judge could reduce the charges against Trump back to misdemeanors.

"Trump was running for president in a federal election, so only federal election laws apply. Prosecutors here are saying that, in Trump's federal campaign, he violated New York state election laws," Ritter said. "Can prosecutors say that, even though Trump wasn't involved in a state election, he still violated state election laws? This has never happened before, so it's unclear. If the answer is no, then prosecutors will have a problem."

In 2018, Cohen pleaded guilty to federal tax crimes, including lying to Congress and committing campaign finance violations. This was in relation to the hush money paid to Daniels and former Playboy model Karen McDougal. Trump was not implicated during the original investigation, headed by then-Manhattan District Attorney Cyrus Vance Jr.

Los Angeles criminal defense attorney Ambrosio Rodriguez, a former prosecutor with the Riverside County District Attorney's Office, told Newsweek how there is nothing new in the latest indictment against the former president.

"This indictment was written in a way for the DA to meet the legal requirements as to what's supposed to be in an indictment, and nothing more. Trump was not charged with a conspiracy probably for strategic legal reasons: Michael Cohen would have to be part of that conspiracy, and the case would be far more complicated if their star witness was made an unindicted co-conspirator," Rodriguez said.

"The reality is, these facts are pretty stale. We've known about this since what, 2018? Both Karen McDougal and Stormy Daniels have been interviewed a million times. The most dangerous place in America is the space between a TV camera and Michael Cohen. They told their story, and there are no surprises here."

Both Ritter and Rodriguez do not believe any trial involving the former president in the hush-money case will take place for a year at least.

Trump and his team are expected to argue against the case from every angle. This includes trying to change the venue from Manhattan to Staten Island. The latter is more Republican and therefore more likely to produce a fair juror.

Trump is due to appear next in court in December, when Acting New York Supreme Court Justice Juan Merchan will hear arguments and decide on expected motions to dismiss the case.

In a press conference on Tuesday, Bragg said: "Under New York state law, it is a felony to falsify business records with intent to defraud and intent to conceal another crime. That is exactly what this case is about: 34 false statements, made to cover up other crimes.

"These are felony crimes in New York state, no matter who you are. We cannot and will not normalize serious criminal conduct."