Alvin Bragg's Case Against Trump Should Have Been Dismissed | Opinion

On Thursday, February 15, Acting Justice Juan Merchan in the Manhattan trial court ordered that Alvin Bragg's 34-count felony case against former president Trump, alleging falsification of business records regarding hush money he paid to adult performer Stormy Daniels in 2016, proceed to trial scheduled for March 25, 2024.

It is no accident that the trial date is scheduled for three weeks after Super Tuesday, when sixteen states and territories, representing almost three-quarters of the delegates needed to win the GOP nomination, hold their primaries, and right before five more states hold their primaries on April 2. At best, it would be extremely difficult, if not impossible, for Trump or any presidential candidate to campaign and raise money while in the middle of criminal trials. In fact, during the hearing, Justice Merchan said that he spoke twice last week to Judge Tanya Chutkan of the U.S. District Court in D.C., who is overseeing Trump's January 6 criminal case, which special counsel Jack Smith is pushing hard to start as soon as possible.

Though it was inevitable that at least one of Trump's many upcoming trials was going to start and almost certainly finish before the November 5, 2024 election, in perhaps a bit of political luck for Trump, Bragg's case is the weakest and least relevant to Trump's time in office, and thus fuels Trump's political claim that Democrats weaponized the justice system to "persecute" him in order to prevent his returning as president. It seems that Trump's strategy of appearing in court and attacking what his supporters view as a biased legal system is still paying political dividends for him, as it keeps him atop the nation's political attention.

Bragg's case alleges that Trump, through his former fixer Michael Cohen and the Trump Organization, falsified business records with the intent to defraud and commit another crime. Trump allegedly violated federal campaign finance laws when he paid Daniels $130,000 through Cohen to sign a NDA about their alleged sexual encounter—something we have to glean not from the indictment but from Bragg's statement that Cohen pled guilty to campaign finance violations; Cohen, who paid Daniels the money out of pocket, labeled his invoiced reimbursements as "legal services" instead of something like "reimbursement for settlement payment re: extra-marital sex."

Bragg turned this single transaction, which normally would have been one misdemeanor charge, into 34 separate felony counts with a maximum combined sentence of 136 years by throwing in the federal charge and aggressively subdividing each invoice, check, deposit, etc. into its own charge.

All Bragg needs is a conviction on one of the 34 counts to destroy Trump.

Justice Merchan's opinion apparently ignored several important points of law. For example, it seems to contradict the U.S. Supreme Court's body of cases which limit criminal fraud cases to depriving traditional property interests such as money, not something ephemeral. That's assuming there actually was an intent to defraud, because the only person whom the incorrect labeling affected was Trump himself.

In fact, Bragg's indictment never specifies what the "another crime" is, which is a minimum requirement for any indictment, let alone one of this magnitude.

Also, it is doubtful that Bragg may charge the federal crime. State prosecutors may not prosecute federal crimes because under Article II of the U.S. Constitution, only the president, through his Department of Justice, has that power. Imagine that a district attorney decided to prosecute Hunter, Joe, and Jim Biden for FARA violations because he or she felt that the DOJ was protecting them, or a district attorney in Arizona or Texas decided to prosecute illegal aliens for violating the Immigration and Nationality Act or the Trafficking and Violence Protection Act, which would contravene the U.S. Supreme Court's decision in Arizona v. United States (2012).

Prior to Bragg's indictment, SDNY prosecutors investigated Trump's alleged campaign finance violations, as did the Federal Election Commission, but both declined to pursue the case because Trump used his own money, not campaign finance money, and because reimbursing someone for a hush-money payment does not fit the definition of an in-kind campaign contribution. In fact, candidates do not have to disclose expenses that would have been incurred even if no campaign existed; it is highly likely that Trump would have paid Daniels regardless just to avoid any marital strife or embarrassment to himself and his family.

Furthermore, because Cohen paid Daniels on October 26, 2016, 13 days before the election, and Trump did not complete his reimbursement payments until December 5, 2017, Trump would not have had to report the payment to the FEC, assuming he had to at all, until February or March of 2017 at the earliest, well-after the 2016 election ended.

Moreover, Bragg's assertion that disclosure of the payment would have affected the electoral outcome is wrong; in 2016, Trump lost the State of New York by more than 20 points, a ginormous margin; disclosure would not have made a difference.

Again, imagine that a district attorney decided to charge Tony Blinken and Hunter Biden for an illegal, undisclosed in-kind campaign contribution when they lied in October 2020 to conceal that the abandoned laptop actually belonged to Hunter ("earmarks of a Russian information operation").

It seems clear that Bragg twisted the law to bring this case only because the defendant is Donald Trump. A state court system that truly enforced the rule of law would stop its prosecutors from abusing their discretion as Bragg did.

Justice Merchan should know better because he worked as an ADA under legendary district attorney Bob Morgenthau. A justice system with fairness and integrity would put the brakes on the rush to convict the former president. As Justice Robert H. Jackson once said, a prosecutor who singles out "some person whom he dislikes or desires to embarrass" is where "the greatest danger of abuse of prosecuting power lies," and that such a prosecutor "has a perverted sense of practical values, as well as defects of character."

John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley, a nonresident senior fellow at the American Enterprise Institute, and a visiting fellow at the Hoover Institution. He served in the U.S. Department of Justice from 2001 to 2003. John Shu is a legal scholar and commentator who served in the administrations of Presidents George H. W. Bush and George W. Bush.

The views expressed in this article are the writers' own.