Manhattan District Attorney Alvin Bragg is expected to indict former President Donald Trump any day now over alleged crimes linked to payments he made to porn actress Stormy Daniels and model Karen McDougal. The indictment would undoubtedly start a political firestorm: It would be the first criminal charge against a former president, and one who has already proven successful at instigating political violence.
Bragg is reported to be considering indicting Trump for filing fraudulent business records in connection with two payments made by his associates to Daniels and McDougal in the waning days of the 2016 election. That would be a misdemeanor, but it could be upgraded to a felony charge if it was done in furtherance of another crime. The question hanging over the presumed indictment is what that other crime would be.
Speculation has largely fixated on the violation of federal campaign finance law that Trump’s ex-lawyer Michael Cohen pleaded guilty to in 2018. Cohen admitted he made a $130,000 payment to Daniels and arranged for National Enquirer parent company AMI, Inc. to make a $150,000 payment to McDougal. Prosecutors in Cohen’s case argued that the payments were made at Trump’s behest in furtherance of his 2016 presidential campaign and therefore were illegal campaign donations. Cohen admitted to these crimes in his plea agreement.
Cohen’s charging documents listed Trump as Individual-1, but Trump himself has never been charged with a crime. This is where it gets tricky. Can Bragg use this campaign finance violation, admitted to by Cohen but alleged for Trump, to upgrade a misdemeanor to a felony? It’s theoretically possible, but Bragg is on murky terrain against a powerful opponent.
A State Prosecutor’s Limits
Bragg is a local DA and the alleged crime was committed in connection to a federal election. That presents one difficult question. Local and state officials do not commonly prosecute federal election crimes.
Bragg could claim that Trump violated New York state election law, like the section banning donations made in the name of someone other than the donor, but federal law preempts state law when a campaign finance crime is alleged. This would seemingly preclude the use of state campaign finance law.
“That’s just a nonstarter because any allegations with respect to Trump’s own conduct as violating campaign finance law, that’s all preempted by federal law,” said Paul S. Ryan, a campaign finance law expert who filed complaints against Trump over the payments to Daniels and McDougal. “I think it’s a pretty widely held view by election law experts that a Manhattan DA can’t try campaign finance violations by Trump.”
Since federal law is enforced by federal prosecutors, the use of an uncharged federal crime by a local DA would be out of the ordinary. While the Manhattan DA does routinely bring charges for filing fraudulent business records connected to another crime, it is rare if not unprecedented to do so connected to a federal crime that has not been charged or prosecuted.
One possible example of this, Just Security noted, is that former Trump Organization chief financial officer Allen Weisselberg “was just convicted of a state felony based on false entries made in federal tax forms.” Those charges, however, do not solely rely on federal tax violations, as they also connect the state felony to state and local tax crimes.
There are other New York state laws Bragg could use, like the prohibition on conspiring “to promote or prevent the election of any person to a public office by unlawful means.” But this is also likely to run into a preemption issue with federal law.
One way out of this problem would be to use Cohen’s admitted crimes as the underlying campaign finance crime, since the offense used to up a fraudulent business filing charge to a felony does not have to be committed by the person being charged.
Cohen admitted in court and in public to breaking campaign finance law. In doing so, he implicated Trump in the crime by stating that he acted at the ex-president’s behest and was reimbursed by Trump for the payments he made to Daniels in furtherance of the crime. This way Bragg would not need to connect Trump’s indictment to any yet unproven crime.
“I don’t think that’s too complicated,” Ryan said of linking Trump’s charge to Cohen’s crime. “And complication alone is not a reason to hold off on prosecution.”
The Case Of John Edwards
There’s another thorny problem raised in conjunction with a Trump indictment over hush money for an alleged paramour. This issue was litigated when the Department of Justice charged former Democratic senator and presidential candidate John Edwards with similar crimes. It didn’t go well.
In between his two presidential campaigns in 2004 and 2008, Edwards had an affair with videographer Rielle Hunter. That affair came to light in 2007 when the National Enquirer published stories alleging the relationship between Edwards and Hunter and that the two had a child. To hide the affair, Edwards tasked a staffer with securing payments to Hunter from campaign donors to keep her quiet. Edwards did not admit to the affair until August 2008.
In 2011, the Department of Justice charged Edwards with facilitating illegal campaign contributions. The department alleged that the nearly $1 million in funds given to Hunter by Fred Baron and Bunny Mellon were made to protect Edwards’ presidential hopes and therefore in furtherance of his campaign. That meant, according to prosecutors, that they constituted illegal excess contributions.
In court, Edwards argued that the payments were made solely to keep his wife, Elizabeth Edwards, from learning about the affair ― not to protect his presidential bid from negative press. A jury acquitted Edwards of one count of facilitating illegal campaign contributions and deadlocked on the other five charges.
This could be good news for Trump. But despite the clear similarities to the allegations against the former president, there are some key differences.
The payments to keep Hunter from going to the press were made soon after Edwards’ affair with her. This strengthened Edwards’ argument that he was simply trying to hide the affair from his wife. In Trump’s case, his alleged affairs with Daniels and McDougal occurred in 2009 and 2006 to 2007, respectively, while the payments were made in 2016.
The payments to Daniels and McDougal came in the wake of the Oct. 7, 2016, release of the Access Hollywood tape where Trump commented on how easy it is to sexually assault women when you are famous. Cohen had been working on securing the silence of Daniels and McDougal prior to the tape’s release but went forward with the payments afterward. And he claims he did so at the behest of Trump due to concerns about how revelations of extramarital affairs could impact the campaign in light of the tape.
“I was concerned about it, but more importantly, Mr. Trump was concerned about it,” Cohen told a congressional committee in 2019.
Cohen initially failed to pay Daniels despite signing papers with her to do so. He later said he was trying to figure out where the money would come from. With just two weeks to go before the election, Daniels canceled the deal and tried to shop her story around again.
“We have to coordinate something on the matter ... It could look awfully bad for everyone,” Dylan Howard, editor-in-chief of the National Enquirer, texted Cohen, according to messages included in Cohen’s guilty plea.
Cohen paid Daniels himself and secured her silence for the remainder of the campaign. Trump later reimbursed Cohen for the payment with both personal and corporate funds. That reimbursement was made to look like a legal retainer, which is the basis for the fraudulent business documents charge.
Trump did not try to buy the silence of Daniels or McDougal until he secured the Republican presidential nomination and did not reach deals with them until the final weeks of the general election campaign. Despite being a public figure with a starring role in a popular television show and a public reputation to uphold, he never sought to secure their silence to protect his reputation or his marriage from the revelation of these alleged affairs.
That makes it harder for Trump to claim, as Edwards did, that the payments were made for private and personal reasons.
If Bragg ultimately does indict Trump, he will need to thread the needle on multiple legal questions. Even if the case is itself relatively novel, the real difficulty will be managing the political fallout.