A landmark ruling that the Supreme Court made more than two decades ago could be used by former President Donald Trump's team to help get the felony charges he faces in Manhattan down to misdemeanors.
At the end of March, Trump was charged with 34 felony counts of falsifying business records as part of Manhattan District Attorney Alvin Bragg's investigation into the hush money payments that Trump's campaign allegedly made to adult film star Stormy Daniels in the days before the 2016 presidential election. Daniels alleged that she and Trump had an affair in 2006, which Trump denies and maintains his innocence in the case.
Bragg had initially charged Trump with 34 misdemeanor counts, but brought them up to felonies as falsifying business records are considered a felony in New York if it's done while committing another crime. In order to bring the charges up from a misdemeanor, prosecutors have said that Trump hid the hush money payments in order to break election laws.
"One avenue for Donald Trump's attorneys to push back against the Manhattan DA in the pending case against Donald Trump is to challenge the legal sufficiency of indictment," former federal prosecutor and elected state attorney Michael McAuliffe told Newsweek on Friday.
That's because in 2000, the Supreme Court ruled that criminal sentences cannot be enhanced from the charges originally listed in an indictment.
In the case of Apprendi v. New Jersey, Charles Apprendi Jr. who fired shots into the home of an African-American family was initially charged under New Jersey law with possession of a firearm for an unlawful purpose. Although the shooter made a statement, which he later retracted, that he did not want the family in his neighborhood because of their race, the indictment did not refer to the state's hate crime statute.
After Apprendi Jr. plead guilty, prosecutors filed a motion to enhance the sentence, which the court granted after finding a preponderance of evidence that the shooting was racially-motivated. However, the Supreme Court ruled that any fact that increases the penalty for a crime must be submitted to a jury and proved beyond an unreasonable doubt.
In Trump's case, the alleged violation is not in the indictment, and without it, there would be no other crime that could bring the misdemeanor counts up to felonies. Bragg's prosecutors argued in a May 16 court filing that "the indictment need not identify any particular crime that the defendant intended to commit or conceal."
McAuliffe said the decision to maintain some ambiguity is not unusual in drafting indictments, adding that New York state law does not have a requirement for all relevant facts to be included. Rather, all that needs to be included is a "plain and concise factual statement" of the alleged offenses.
So, while a Trump defense referring to the Court's case is likely to be considered by the former president's attorneys, legal experts say it will be a challenging argument to make.
"It's not the clearest statute, unfortunately," former federal prosecutor and president of West Coast Trial Lawyers Neama Rahmani told Newsweek on Friday. "Even if Trump's lawyers are successful in arguing that the other crime needs to spelled out, Bragg's office can just go to the grand jury and get a superseding indictment specifying the other crime."
Rahmani added that all Bragg would need to do is convince a jury that Trump falsified business records and that in doing so, he intended to commit or conceal another crime.
McAuliffe also pointed out that the statement of facts filed by Bragg's office, which accompanied the indictment, outlined other crimes like state election law and state tax violations, which would likely provide "enough notice to the defendant and his legal team to try and defend the case."
McAuliffe added that such a defense is "a reasonable and expected move [from Trump] in the coming weeks or months," but that ultimately it will end in the courts ordering that Bragg provide additional information about the "other crimes," rather than a dismissal of the felony charges.
Uncommon Knowledge
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Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.
About the writer
Katherine Fung is a Newsweek reporter based in New York City. Her focus is reporting on U.S. and world politics. ... Read more
