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Manhattan District Attorney Alvin Bragg’s indictment of former President Donald Trump secures Bragg a place in history as the first prosecutor to ever charge a former President of the United States. But whether Bragg will go down in history as a footnote or pioneer will be determined solely by whether he secures a conviction—and the path to conviction is a challenging one legally.
Bragg is a surprising come-from-behind winner in the field of potential prosecutors who might charge Trump. Fulton County (Georgia) District Attorney Fanni Willis appeared to be closest to indictment and, in the view of many legal commentators, myself included, seemed to have the strongest cases. Certainly, she has had more time to work up her case than has Bragg, which is part of the concern over Bragg’s sudden prosecutorial boldness.
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Recall that Bragg punted on a fully matured three-year long criminal investigation into Trump’s financial crimes, which his predecessor Cyrus Vance had fought up to the U.S. Supreme Court twice on the issue of seeking Trump’s tax records from Mazars accounting firm. Bragg’s decision so angered the lead prosecutors on the case that two of them resigned. One of them—Mark Pomerantz—wrote a scathing book about his disagreements with Bragg’s decision to decline to charge Trump.
Pomerantz’s letter of resignation called Bragg’s decision to suspend the Trump investigation a “grave failure of justice” in which Pomerantz did not want to “become a passive participant.”
We don’t know what caused Bragg’s resurgence of interest in charging Trump, but we do know that the legal challenges he’ll face will likely require extensive litigation before the case ever gets in front of a jury.
Issues expected to be raised by Trump’s legal team include claiming that federal election law preempts any use of a federal campaign violation in a state prosecution. This novel legal issue arises because, typically, federal campaign finance violations would be brought by the Justice Department and not state prosecutors, but here DOJ has been missing in action vis-à-vis Trump for years.
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Although the indictment is still sealed, Bragg’s case will likely turn on the campaign finance violation issue. That’s because without it—or some other felony charge—he likely can only convict Trump of the misdemeanor crime of falsifying business records. Bragg needs to bootstrap the misdemeanor by tying it to some other felony—either an interpretation of New York state election law or by seeking to rely upon the federal law in substitution. These legal issues will have to be resolved by the trial court in early challenges by Trump’s team, with appeal being unlikely because in criminal cases—unlike civil cases—appeals on the legality of the charges won’t happen until after the criminal trial itself.
At trial, Bragg will need Michael Cohen—Trump’s former lawyer and “fixer,” who previously pleaded guilty to charges related to his paying Stormy Daniels for her silence—to be seen as credible by the jury, especially after the fully expected attacks on his character and reliability from Trump’s lawyers.
It’s unclear why Bragg’s office felt it necessary to put Cohen before a grand jury, given that he has previously given sworn testimony about the facts of the case already. Such a decision creates more opportunity for inconsistencies in Cohen’s sworn testimony for Trump’s defense lawyers to attack. Indeed, one strategic question for Bragg will be whether to minimize reliance on Cohen and depend more upon the paper trail.
A similar question will involve how much to use Stormy Daniels herself. Public reporting has not confirmed that Daniels testified before the grand jury, which would be a wise move since there appears no need to lock in her testimony. Daniels’ profession as an adult film actress may make prosecutors worry that some members of a jury might hold that against her. Such prejudices have often made prosecutors—who are guilty of those prejudices themselves—hesitant about bringing cases in which female victims may have any association with sex industries.
The challenges with using both Cohen and Daniels as witnesses are easily managed with sufficient preparation time and careful strategizing on the part of the prosecutors. While the case originated some seven years ago, Bragg’s apparent sudden haste to bring charges raises questions about just how much time he devoted to thinking through his strategy and preparation.
One factor that may be helpful to Bragg is that, thus far, Trump’s lawyer)" href="https://urldefense.com/v3/__https://www.nbcnews.com/politics/donald-trump/trump-lawyer-puts-forward-stormy-daniels-hush-money-defense-s-not-crim-rcna75082__;!!LsXw!QFDVlD_WNznw2-yyOTBlPf7mDR39LjRzKYu3vMxuRce3iuC_afuzX0QkOsuCzMZ-amyFAP3xJaF-GGDe7ivkxyguVw$"> Trump’s lawyer appears willing to try the case in public via media appearances. Perhaps even more helpful is Trump’s obsession with speaking out himself, which could cause a judge to impose a gag order or even expose him to other charges for witness intimidation or obstruction. That won’t help Trump—or his lawyers—as they preview their defenses for both the prosecution, as well as the potential jury pool.
If Bragg gets this case to a jury, then it will not be a complicated story to tell. It’s simply the tale of a man who wanted to buy silence, as Trump has done successfully for decades.
Whatever may motivate Alvin Bragg, and whether or not he has given his prosecutors adequate time to prepare, he will now be the first prosecutor to have a chance to put an end to Trump’s undefeated record of buying success. See you in court.
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