If media reports are accurate, Manhattan District Attorney Alvin Bragg is about to charge former President Donald Trump with a felony for false bookkeeping. While, sadly, in this era of weaponized government being deployed against political opponents, such an indictment would be not at all surprising, it would nevertheless be an outrage.
The case apparently stems from a 2016 episode. Porn star Stormy Daniels, who had tried (and failed) years earlier to sell to the media her story of a sexual affair she claimed to have had with Trump, started shopping the story again at the height of Trump’s presidential campaign. Trump’s then lawyer and fixer Michael Cohen paid her $130,000 to maintain her public silence on the matter.
The Trump Organization then reimbursed Cohen for the $130,000 payment, entering the reimbursement checks in its books as “legal expenses.”
Bragg may allege that Trump committed a crime when he caused those bookkeeping entries to be made. Under New York law, making false entries in this manner is a misdemeanor.
But that wouldn’t work for Bragg, because the misdemeanor has a statute of limitations of just two years, and it expired long ago. Under New York law, though, the same act can be charged as a felony (which, as a more serious crime, has a longer statute of limitations) if Bragg can prove an “intent to defraud [that] includes an intent to commit another crime or to aid or conceal the commission thereof.”
So Bragg may stretch the law to allege that Trump committed the false entry crime with the intent to conceal another crime — a violation of federal election law. Handily for Bragg, Cohen, Trump’s former lawyer, pleaded guilty in 2018 to one count of “causing an unlawful campaign contribution” and one count of “making an excessive campaign contribution” in relation to the Daniels payoff.
Bragg’s case, then, rests on the idea that he, as Manhattan’s District Attorney, can charge Trump with a state felony because Trump committed that state felony as he simultaneously committed a federal crime.
In order to make that case, Bragg must prove that paying Daniels was a legitimate campaign expense that should have been paid by the campaign, and reported as such.
Anyone who knows election law knows that a campaign cannot legally pay for an obligation that has nothing to do with the campaign.
In this case, the obligation — to the extent there was one — was incurred before the campaign ever existed. Daniels was trying to sell the story years before Trump ever became a candidate.
More importantly, the obligation existed irrespective of the campaign. That is, Daniels’ attempt to sell her story was going on before the campaign, and, if Cohen had not come to an agreement to silence her, would have gone on after the campaign, until she either finally succeeded in selling her story or decided she should just give up. The attempt to sell the story simply had nothing to do with the campaign.
Just for argument’s sake, turn the story around. Let’s say Trump had done what Bragg apparently is ready to charge him for NOT doing — to wit, use campaign funds to pay off Daniels. Imagine for a moment that Trump had ordered his campaign’s accountants to write out a campaign check to pay Daniels, and then had reported it to the Federal Election Commission as payment for “services rendered.” If Trump had done that, the world would have gone crazy!
In 2011, former presidential candidate John Edwards was charged with six counts of violating federal election law for arranging to have a donor to his 2008 presidential campaign pay off his mistress. The jury acquitted him on one charge and deadlocked on the remaining counts, and the Department of Justice decided not to re-try him.
The whole notion of charging Trump with a felony bookkeeping violation is so ridiculous that no other prosecutor would touch it. Others — including Robert Mueller, during the course of his long special counsel investigation; Bragg’s predecessor as Manhattan D.A., Cyrus Vance Jr.; the Office of the U.S. Attorney for the Southern District of New York; and the federal Department of Justice — investigated the matter and decided against pursuing charges against Trump.
The rule of law still matters in this country. Prosecutors are supposed to uphold the law and apply it evenly.
Manhattan D.A. Alvin Bragg appears to have forgotten this simple principle. Instead, he appears to be operating under the maxim attributed to the most ruthless of Soviet dictator Joseph Stalin’s secret police chiefs, Lavrentiy Beria, who famously said, “Show me the man and I’ll show you the crime.”
That’s not right.
Jenny Beth Martin is Honorary Chairman of Tea Party Patriots Action.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.
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