It’s the case of the year in the US – Donald Trump is in court. But the indictment brings with it some difficulties, say several experts.
Donald Trump in court – many people in the United States had probably been waiting for this day. The indictment, which was opened on Tuesday, concerns, among other things, the hush money payment to the former porn actress Stormy Daniels, worth 130,000 US dollars (around 120,000 euros). Daniels received the money shortly before the 2016 presidential election from Michael Cohen, Donald Trump’s personal lawyer, in order not to speak publicly about an alleged affair (read questions and answers about the case here).
It is not the hush money payment itself that is punishable, but how the Trump Organization, which subsequently reimbursed Cohen, booked the payment. Now the New York prosecutor’s office accuses the ex-president of falsifying business documents in 34 cases. The case is historic, a former president has never been indicted. But the prosecution has several difficulties. Or as the US medium “The Hill” sums it up – the “smoking gun” would be missing: “There was neither conclusive evidence nor any really dramatic new details.”
Difficulty 1: What second crime?
The public prosecutor’s office led by Alvin L. Bragg lists a total of 34 cases, all of which relate to the same allegation: falsification of business documents. The Trump Organization falsely labeled the payments to Cohen, who advanced the hush money to Stormy Daniels, as a legal service. That would normally be a petty crime, but the indictment accuses Trump of a felony.
To meet this requirement, authorities must prove to the former president that he intended to commit, assist, or conceal another crime. What crime that could be is currently still open – but Bragg indicated that he wanted to present several theories to the judge and jury.
Rebecca Rouphe, a New York Law School professor and former prosecutor, told the New York Times: “Pundits had speculated that Trump would be accused of lying about the hush money payments in order to illegally influence an election. This theory is based on controversial legal issues and could be difficult to prove.”
This is another reason why the prosecution could have pointed out in court that the hush money payments had been declared in this way in order to have tax advantages. “It’s a much simpler charge that avoids potential pitfalls,” Rouphe said.
Difficulty 2: The indictment could combine federal and state election laws
Said Chief Prosecutor Alvin L. Bragg is responsible for Manhattan, New York City. In the indictment against Donald Trump, he referred to alleged violations of both federal and state election laws. The prosecutor’s reasoning: The payments were intended to “hide harmful information and illegal activities from American voters before and after the 2016 election.”
The question is whether a Manhattan District Attorney can rely on federal law when it’s not actually his jurisdiction. At the later press conference, Bragg also referred to New York state electoral law, which criminalizes conspiring to promote a candidate through unlawful means. However, he did not explain why this law should apply to a presidential election that falls under federal law.
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Mark Pomerantz is a former prosecutor who also investigated Trump. He also raised this question in his book, which was published in February. Bragg has evidence that Trump wanted to cover up a federal crime. But whether it can be referred to before the New York court is a “tricky legal question,” says Pomerantz. So far, this seems legally unclear. Several American media are therefore speculating that the case could go all the way to the Supreme Court.
Difficulty 3: The role of Michael Cohen
The indictment is based largely on the testimony of Michael Cohen, Trump’s former fixer (problem solver) and personal attorney. He is the link between Trump and the hush money payments. According to Cohen, the ex-president hired him to pay Stormy Daniels hush money so that the alleged affair would not interfere with his presidential campaign. Trump denies this and has repeatedly called Cohen a “liar” and “convicted felon”.
There is truth to both allegations, however, as Cohen was found guilty in a 2018 jury trial and received three years in prison for lying to Congress. He also broke campaign finance laws by making payments to two women who had accused Trump of having an affair: Stormy Daniels and model Karen McDougal.
A former criminal prosecutor, Mark Bederow, summarizes the resulting credibility problem at “Insider”: “This is a disaster for a prosecutor,” said Bederow. “You wouldn’t rely on Michael Cohen to tell you the time unless you would back it up with a watch. That’s how bad a witness he is.” But the indictment also shows that the Bragg prosecutor’s office relies not only on Cohen’s statements, but also on other witnesses, referrals and documents.
Difficulty 4: Donald Trump is campaigning for the presidency
The former president is running again to be the Republican Party’s presidential nominee in the 2024 race, and he looks set to stand a good chance. Trump regularly speaks of a “witch hunt” when it comes to possible allegations against him, but other politicians and experts also criticize the timing of the procedure, including Trump critics. According to a poll by the television channel CNN, a majority supports the charges against Trump. Nevertheless, 76 percent of those surveyed believe that political circumstances played a role.
The American “Wall Street Journal” also raises the question in a comment: “What keeps going through our heads is whether this case would have been brought against a defendant other than Donald Trump. It is difficult, unlike with to answer no.”
In contrast, lawyers Karen Friedman Agnifilo and Normal Eisen argue in an op-ed for The New York Times: “He will be treated as any other New Yorker against whom similar evidence is presented would be treated. […] If anything, it would have been a more political decision not to press charges when so much attention is being focused on him.”
It is a serious allegation that may only be cleared up once more details become known in the course of the proceedings. In any case, Donald Trump pleaded “not guilty” on all counts on Tuesday. He will appear in court again on December 4th.
Sources: “New York Times”“NYT 2” “vox“, “axios”, Reuters, CNN“Wall Street Journal”“Business Insider“
with news agency material