When defendants go on trial, the allegations against them are generally clear. Not so with former President Donald Trump and his “hush money” case.
Prosecutors in Manhattan District Attorney Alvin Bragg’s office offered new transparency not only to the public, but seemingly also Trump’s defense attorneys on Tuesday when, one year after indicting the former president, they finally pulled back the curtain to reveal the motivating crime in their case: a violation of state election law. Former federal prosecutors told the Daily Caller News Foundation Bragg’s lack of clarity is unfair to the defense, who can’t prepare to argue against a charge they don’t know, and unlike what they’ve seen before.
“I don’t recall ever having a trial where the defense didn’t know what the government was trying to prove,” former federal prosecutor Jonathan Fahey told the DCNF, likening Bragg’s approach to a “trial by ambush.”
Bragg’s indictment last April charged Trump with 34 felony counts of falsifying business records allegedly related to a $130,000 paid to keep porn star Stormy Daniels from telling her story of an alleged affair ahead of the election. To charge the eight-year old misdemeanor offenses as a felony, he argued it was done to commit or conceal another crime — presumably, a federal campaign-finance violation. But he never specified.
That is, until Tuesday, when it came out after defense attorneys objected to prosecutor Joshua Steinglass’ line of questioning that they were claiming Trump violated New York Election Law § 17-152. The statute makes it a misdemeanor for any two or more people to “conspire” to influence an election using “unlawful means.”
During opening statements Monday, Matthew Colangelo, senior counsel for the district attorney and a former top official in the Biden Department of Justice, argued that the records Trump allegedly falsified in relation to Daniels’ payment are part of a broader “conspiracy” to influence the 2016 election involving Trump, his former attorney Michael Cohen and former National Enquirer publisher David Pecker.
Prosecutors are seeking to demonstrate that conspiracy — which they clarified is rooted in the election statute, though it is not named in the indictment — through witness testimony.
Former federal prosecutor Andrew Cherkasky said the theory put forward by Bragg under the statute is “bizarre.”
“The misdemeanor statute of limitations is expired on this offense, just as it is expired on the underlying offense, raising a significant legal question about the propriety of this approach,” he told the DCNF.
“One of the biggest issues in this case is that the prosecution has essentially withheld this theory until trial has started,” Cherkasky continued. “The defense has complained about this the entire time, but the judge has refused to require identification of the felony escalator at an earlier stage. This amounts to another form of ‘trial by fire,” which is not how the American criminal justice system is supposed to work.
John Malcolm, vice president for the Heritage Foundation’s Institute for Constitutional Government and former deputy assistant attorney general in the DOJ’s Criminal Division, said there are three things about the revelation that “amaze” him as a former prosecutor.
“First, that Alvin Bragg’s office did not provide advanced notice of the precise allegations in order to enable former President Trump’s legal team to prepare an adequate defense,” he said. “Second, that the statutory code section cited by the lead prosecutor (New York Penal Code Section 17-152) prohibits a conspiracy ‘to promote or prevent the election of any person to a public office by unlawful means …,’ but Bragg has still not divulged what those ‘unlawful means’ were.”
“And third, and most shockingly, that penal code section is a misdemeanor, which means that Alvin Bragg is claiming that committing a misdemeanor (making a false business entry) in order to conceal the commission of another misdemeanor (conspiring to promote someone’s candidacy in an unlawful manner) can – like magic – be converted into 34 felony offenses,” he continued.
Fahey told the DCNF that everything about the case “stinks to high heaven.”
“If this was anyone other than Donald Trump, this would be laughed out of court,” he said.
