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Does DA Alvin Bragg really want to bring People v. Donald Trump? 

The Manhattan grand jury investigating former President Trump will not meet again until next week, which gives District Attorney Alvin L. Bragg time to reflect on the major hurdles he must overcome to convict Trump: Michael Cohen, the relative triviality of the charges and the “ick factor.”

By all accounts, Bragg’s investigation is focused on the creation of false business records to conceal a hush money scheme in which Cohen, then Trump’s personal attorney and self-described “fixer,” paid $130,000 to porn actress Stephanie Clifford, best known as Stormy Daniels, to prevent her from disclosing an alleged affair with Trump on the eve of the 2016 election.

Cohen was re-imbursed by the Trump Organization (including additional amounts for taxes and as a “bonus”), which created business records that falsely accounted for these payments as a “legal expense.” While president, Trump signed one of the reimbursement checks to Cohen, who will be the prosecution’s star witness.

Standing alone, a hush money payment by Trump is not a crime. Rather, Bragg’s burden is to prove that Trump intended to create false business records, which Cohen’s testimony will presumably establish. But juries are reluctant to convict a defendant solely on the uncorroborated testimony of a convicted felon and admitted perjurer like Cohen, who had a motive to fabricate testimony against his former boss to gain leniency when federal prosecutors began investigating his role in the hush money scheme. Ultimately, Cohen received a three-year sentence after pleading guilty to eight federal offenses, significantly less than the maximum. 

Does Bragg have credible witnesses or damning documents to corroborate Cohen? Nothing in the public record suggests that he does, which is why, counterintuitive as it sounds, star witness Michael Cohen may be one of Bragg’s biggest problems. 

Another is that Bragg’s charges are the least consequential of the ones that Donald Trump might conceivably face, including for his role in the Jan. 6 riots, his alleged mishandling of classified documents and his alleged election interference in Georgia in 2020. In fact, under New York law, falsifying business records is only a misdemeanor offense unless it is done with intent to commit another crime, which is a felony punishable by four years in prison.

But to elevate the business records offense to a felony, Bragg must prove that the payment violated state or federal campaign finance laws by shielding Trump’s presidential campaign from the harm that disclosure of the alleged Daniels affair would have done. The legal validity of a ”booster” charge like this has never been tested under New York law and, as a standalone offense, has proven unconvincing to juries in federal court.

In 2012, a federal jury acquitted or deadlocked on similar campaign finance charges against former Sen. John Edwards (D. N.C.) arising from payments by his 2008 presidential finance chairman to Edwards’s mistress to stay silent about their affair to prevent damage to the campaign. The Department of Justice dropped the case rather than retry it, which does not bode well for Bragg’s quest for a felony conviction.  

Then there’s the “ick factor” – here, a former president’s alleged extramarital affair with a porn actress – which can be an unguided missile in a trial. Trump denies that he had an affair, while Stormy Daniels described it in her book “Full Disclosure.” The jury will certainly learn what the Stormy Daniels payment was designed to conceal even if the judge bars Daniels from testifying to the gritty details of her version.

A comparable “ick factor” was present in the Clinton-Lewinsky scandal in the late 1990s, which led many people to blame not just Clinton but the independent counsel, Kenneth Starr, for embroiling the country in such a sordid mess. A jury in People v. Trump may feel the same way about both Trump and Bragg, but since Bragg filed the case, it may hurt him more.

Starr’s office wisely declined to bring perjury charges against Clinton after he left office, even though he had clearly lied under oath about his affair with Lewinsky. Instead, Clinton paid a fine and his law license was suspended.

To be sure, even flawed prosecutions can result in convictions. But this one feels like a stretch, especially given the historic nature of what would be the first criminal prosecution against a former president. Bragg should reflect long and hard this weekend.      

Gregory J. Wallance, a writer in New York City, was a federal prosecutor in the Carter and Reagan administrations, where he was a member of the ABSCAM prosecution team that convicted a U.S. senator and six representatives of bribery. His newest book, “Into Siberia: George Kennan’s Epic Journey Through the Brutal, Frozen Heart of Russia,” is due out later this year. Follow him on Twitter @gregorywallance.

Tags Alvin Bragg Cohen testimony Donald Trump Donald Trump indictment Gregory J. Wallance John Edwards Michael Cohen Michael Cohen New York City Stormy Daniels Stormy Daniels–Donald Trump scandal trump organization

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