This & a lot more stated in this thread is simply incorrect or based on false assumptions.
Summary of Andy McCarthy:
1. Trump is facing a state criminal trial for violating federal election laws that Alvin Bragg has no jurisdiction to enforce.
2. NDAs are perfectly legal & Trump used his $ (not campaign $)
3. Cohen’s payment to Clifford did not transform into an “illegal” campaign expenditure just because Cohen said it did...the Justice Department itself (whose actual job it is to charge those things) opted not to prosecute Trump.
4. Both the Obama & Hillary campaigns
were charged with illegal campaign expenditures...and simply paid fines (Obama's the largest ever...Hillary for her $ part in the paid-for fake Dossier). Both to "influence a PRESIDENTIAL ELECTION"
5. Even if the payment of hush money had been a campaign expenditure under federal law, Trump would have been required to disclose it , but Cohen paid Clifford in October 2016, the next reporting period would have been
after the election: i.e. Trump would have had no legal obligation “during the 2016 presidential election” to reveal the payments to Clifford charged in Bragg’s indictment.
6. To be clear: the Department of Justice (under Trump and Biden) and the Federal Election Commission investigated the 2016 hush-money payments but took no enforcement action against Trump. Why? Because (a) the payment was not technically a campaign expenditure, (b) federal spending restrictions did not apply to Trump, and (c) even assuming that Trump had a disclosure obligation, the lack of regulatory disclosure cannot possibly have influenced the outcome of the 2016 election since no disclosure would have been required prior to the election.
7. The federal authorities that have jurisdiction to enforce federal election law more often than not treat violations far more egregious than Trump’s with civil fines, not criminal prosecution. President Obama’s 2008 campaign, for example, concealed millions of dollars in improper contributions and delayed in making refunds; the FEC imposed a $375,000 fine — note that even the fine (to say nothing of the violations) was larger than the violations for which Bragg is trying to prosecute Trump.
8. Although Bragg has previously prosecuted the Trump organization for tax violations, he does not allege that the state was deprived of tax revenue or otherwise cheated by the way the NDA payments were recorded. To the contrary, in reimbursing Cohen, Trump and other company executives doubled the $130,000 NDA payment to $260,000
precisely because it was expected that Cohen would pay income tax on it. That is, the manner in which the reimbursement was booked made it a taxable event for Cohen; the payment was thus inflated to ensure that Cohen would be fully reimbursed after paying taxes. (Payments in satisfaction of a debt are not income and not taxable as such; legal fees, by contrast, are taxable income.)
9. In terms of falsifying business records, yes, the expenditure was for one purpose, but Trump booked it as if it had been for a different purpose. However: That still may not be enough to establish the New York crime of falsifying business records. The relevant penal statute,
§175.05, requires the state to prove beyond a reasonable doubt not just that the record entry was false, but that the defendant acted “with intent to defraud.” Generally speaking, fraud is a financial crime, involving schemes to acquire money or property by false pretenses. There is no indication that Trump intended to trick anyone into parting with assets.
10. Under New York law, deceptive schemes to cause other types of harm can also qualify as fraud. Nonetheless,
there must be some concrete harm to establish fraud. It does not appear that New York state or anyone else was harmed by Trump’s misdescription of a loan repayment as the payment of legal fees. However, I assume Trump would argue that, because Cohen was his lawyer and the formal NDA with Clifford was a legal contract, describing the payments to Cohen as legal fees was not wholly fictional, much less actionably fraudulent. Again, the amount Trump paid Cohen significantly exceeded the $130,000 loan amount, and Trump would muddy the water by insisting he understood he was paying Cohen for legal services.
11. Did Trump have fraudulent intent for purposes of §175.05? It would be an interesting question if Bragg had brought an actual falsification-of-business-records prosecution. But he didn’t, and couldn’t. That crime is a misdemeanor. New York’s categorization of it as such makes sense: It is a nonviolent, not particularly serious offense — one that prosecutors should not even think about charging in the absence of concrete harm (and, of course, in the absence of being able to demonstrate that they enforce the law even-handedly against similarly situated business people). More to the point, because falsification of records is not a grievous crime, the statute of limitations for charging such an offense is just two years. Since Bragg alleges that Trump’s recordkeeping on the transaction concluded in December 2017, any charge should have been brought by late 2019 — two years before Bragg was elected DA (but around the time that federal prosecutors and Bragg’s predecessor concluded that there was nothing worth prosecuting).
Bragg, however, has not brought a falsification-of-business-records case, despite what his indictment says. He is attempting to prosecute a federal campaign-finance case.
12. Motive is not enough if the expenditures in question are not technically campaign expenditures — bills necessary to the conduct of the campaign, not non-campaign bills that the campaign has incentive to pay.
13. It will be very difficult for Bragg to show an intent to defraud — his theory that New York (indeed, the known universe) was harmed because Trump won in 2016 is not the concrete, particularized
harm that is an essential ingredient of fraud crimes. But that aside, remember that the “other crime” Bragg maintains Trump was trying to conceal was a federal campaign crime — one that the feds themselves did not believe Trump committed, and that Bragg is politically engineering into a new election law that he is somehow allowed to prosecute.
