This will be a cold-blooded, objective look at the Trump indictment by someone who can be fairly described as a “Trump-hater.” To date, in the outpouring of commentary on the Trump prosecution, efforts at moderation have been lacking. For example, the New York Times has recently published on two successive days highly polarized op-eds, the first calling the indictment “Strong,” and the second describing it as a “Legal Embarrassment.” Neither view strikes me as justifiable. Rather, the Trump indictment is basically unfinished, and it is not clear that New York County District Attorney Alvin Bragg yet knows how he will finish it.

Let’s begin with the basics. New York Penal Law Section 175.05 provides that a person is guilty of falsifying business records in the second degree:

when, with intent to defraud, he… makes or causes a false entry in the business records of an enterprise.

This conduct is only a misdemeanor, punishable by no more than a year in prison, but then Section 175.10 of this statute elevates this misdemeanor to a felony (punishable by up to four years in prison) when the defendant’s intent to defraud includes “an intent to commit another crime or to aid or conceal the commission thereof.” Thus, the challenge for the prosecution is to show that Trump’s alleged falsification of his business records was intended to facilitate “another crime or to aid or conceal” it.

But this is exactly the challenge that Bragg ducked. All he did was hint at possible second crimes without committing himself. In paragraph 2 of his Statement of Facts, he alleges that Trump “orchestrated a scheme with others to influence the 2016 election” and sought to suppress “negative information.” Pardon me, but I thought that was what all candidates did. For example, Bill Clinton probably suppressed even more “negative information” about his own sex life. The one power that a district attorney cannot constitutionally exercise is the power to indict political candidates for lies in their campaign rhetoric. If that were possible, most losers would want the winners indicted. Imagine, for example, Marjorie Taylor Greene as a district attorney, reviewing a speech by President Biden!

This statutory need to prove an intent to commit or conceal a second crime may explain why the original team of prosecutors under the prior New York County district attorney (Cyrus Vance) did not pursue the Stormy Daniels hush money theory. First, such a theory needed to rely on the testimony of Michael Cohen, who had already been convicted of lying in connection with this transaction. Indeed, Bragg appears to have rejected his predecessor’s theory in part because it relied too much on the problematic Cohen. Nonetheless, in his own action, Bragg has bet on the Stormy Daniels theory, which places Cohen even more at stage center.

Later, in the same paragraph 2, Bragg hints at tax and election law violations. But, for Trump to have committed either with the necessary “intent to defraud,” he would have had to understand the requirements of these laws. If, to the contrary, Trump knew little about election or tax law (or indeed, law generally), it becomes more doubtful that he had the requisite intent to violate them (as Section 175.05 requires). Further, New York courts do not generally have jurisdiction to interpret or enforce federal election law, and state election law is largely preempted with respect to presidential elections by the Federal Election Campaign Act. For these reasons, the original prosecutors under Cyrus Vance decided to pursue a theory that Trump was falsifying the Trump Organization’s business records in order to inflate the value of the Trump Organization’s assets and thereby obtain greater financing from banks.

Such a theory was elaborately prepared for trial by Vance’s assistants, Mark Pomerantz and Carey Dunne, both experienced and highly respected prosecutors, and Vance had approved their approach. But the new district attorney – Alvin Bragg – refused to go forward. Why? We do not know, but ego may have played a role, as Bragg may not have wanted to look as if he was just finishing up a case handed down to him.

For a time, it looked as if the New York County district attorney would not prosecute Trump, but this drew criticism of Bragg for his seeming passivity. Shifting his position, Bragg responded by resurrecting the Stormy Daniels “hush money” theory. While this gave him his own theory, it may have been an unwise choice. It is probably easier and safer to seek to prove a fraud on banks than on voters. An attempt to prove a fraud on voters quickly collides with First Amendment values. Not only would it be hard to prove that Trump intended to violate these laws (of which he had little knowledge), but Trump can plausibly claim that his only thought was to avoid embarrassment (for himself and his wife) in the final days of the election.  In short, a “personal” motive can explain Trump’s payment at least as plausibly as a “political motive.” This issue has surfaced before in the 2011 prosecution of Senator John Edwards, who made seeming hush money payments to his mistress who had borne him a child and seems to have convinced the jury that these payments were for a personal, rather than political, reason.

Even if Trump’s goal was to make an unlawful contribution to his own campaign (as Bragg hints), this does not involve any intent to obtain money or property from victims. In a series of decisions, the Supreme Court has insisted that the phrase “intent to defraud” means an intent to obtain money or property and not simply to conceal corrupt political or personal motives. Most recently and notably, in 2020, in Kelly v. United States,[1] the Supreme Court reviewed an attempt by the staff of New Jersey Governor Christie to restrict access to the George Washington Bridge to residents of Fort Lee, New Jersey, apparently in retaliation for the failure of their mayor to endorse Christie for governor. Christie’s staff concocted a totally bogus scheme that justified the lane shift that they imposed on bridge access as an effort to test a new traffic pattern. Absurdly deceptive and politically corrupt as this so-called “Bridgegate” scheme was, the Supreme Court unanimously reversed the convictions of Christie’s staff, because the conduct involved no intent to obtain money or property. Similarly, the Bragg indictment of Trump also involves an election contest and does not yet allege any attempt to obtain money or property by the defendants, but only to hide personal and political misconduct. Indeed, Trump, as the payor of the money, and not the payee, does not look like he was seeking a financial profit.

Why has the Supreme Court been so insistent on a property loss? The message underlying Kelly’s unanimous decision is that the Court does not want claims of political favoritism to be prosecutable under the law of fraud. Favoritism and conflicts of interest are deeply woven into the heart of American politics, and there could be a chilling impact on the First Amendment if such claims could be alleged to constitute criminal frauds. For this reason, the original theory that Trump was defrauding banks and lenders was the safer and superior theory.

But now add to this problem a new one involving federalism. Currently, the U.S. has over 3,140 counties, each with a district attorney, and politically we have become increasingly partisan and polarized as a nation. If the district attorneys of New York and Atlanta can indict a former president (at least once he is out of office), it is hard to believe that they will not be emulated by other district attorneys, on both the right and the left, each indicting high officials (including former presidents) to curry political favor, to settle old scores, or just to attract publicity. Although the Atlanta investigation does involve a serious claim that Trump was soliciting others to stuff the Georgia ballot box, the truth is that the New York case is little more than a side show to the main event. That main event was the attempt to overturn the outcome of the 2020 election. History and justice care about the January 6 insurrection and the attempt to prevent certification of the election results by Congress because these attempts severely tested American democracy. But in the years to come issues involving Donald Trump’s sex life will elicit only yawns.

In fairness to Bragg, several concessions need to be made. First, his stripped-down, incomplete indictment is consistent with a pattern often seen in New York State courts. But this is an extreme example of that pattern in an extraordinarily high-profile case where more was obviously needed. Second, even a cursory review of the New York cases under Section 175.10 reveals some cases in which the Section 175.05 misdemeanor has been linked to an attempt to conceal a federal crime. But allowing a state government to construe the scope of a federal election statute (particularly one applicable to presidential elections) seems suspect because it will permit disparities in interpretation in an area where the law most needs to be uniform. Even if the New York State courts allow this, it will be extremely vulnerable in federal court. Should this case go to the Supreme Court, this prosecution is in trouble.

A third point that can be made in Bragg’s favor is that there may be some New York election statutes that are not preempted by federal law. While we do not yet know, it seems likely that he is relying on New York Election Law Section 17-152, which prohibits any conspiracy “to promote or prevent the election of any person to a public office by unlawful means.” This is broad and vague and can only be upheld if construed narrowly.

A fourth concession is that New York law’s construction of “intent to defraud” is probably broader than federal law’s narrow construction of that term, which requires an intent to obtain money or property. But federal law was also once similarly broad until the Supreme Court repeatedly cut it back. If the Court gets its hands on the New York statute, I think it is likely that it will perform similar surgery in the belief that a narrow construction to such a statute permits a more robust political debate.

Finally, the prospect of thousands of district attorneys even considering whether to prosecute candidates for federal office based on a broad anti-fraud statute will likely concern federal courts. In that light, what can be done to mitigate this problem without invalidating a statute like New York’s? One answer that I think some courts will favor is to confine the statute so that the second crime cannot be a federal one; thus, the state court is not permitted to construe the scope of federal law. Similarly, insisting on an attempt to obtain money or property as the goal of the fraud greatly reduces the scope of such a statute (and is fully consistent with what the Supreme Court has done in interpreting federal statutes). These are predictions for the long term, but federal courts are likely to view skeptically attempts by district attorneys in state courts to prosecute candidates for federal office for “lying” to the voters.

To sum up, the New York prosecution may be misguided. This is not because Trump is an innocent victim, as no one in contemporary public life has shown the same continuing disregard for the law or more deserves to be held accountable. Rather, it is because:

• This is largely a victimless crime. No identifiable person was injured, and a claim that Trump was deceiving the voters seems vulnerable to constitutional attack because it chills political speech;
• In the absence of any clear victim, Trump supporters are more likely to see this prosecution as politically motivated; and
• Although the case is important (primarily because it is the first attempt to hold Trump criminally accountable), it is a weaker case – both factually and legally – than the likely prosecutions in Washington and Atlanta. Worse still, the impact of a loss in New York could be devastating for the other prosecutions and would support Trump’s claim that he was being politically persecuted.

This does not mean that Trump cannot be convicted. But the simplest route to that end would be to drop the attempt to prove a second crime and just convict him of the 34 misdemeanor charges involving falsification of documents. Today, too much is being risked on a novel legal theory advanced in a case with little historical significance. The side show should be presented as a side show and not as the main event.

ENDNOTE

[1] 140 S. Ct. 1565 (2020).

This post comes to us from John C. Coffee, Jr., the Adolf A. Berle Professor of Law at Columbia University Law School and Director of its Center on Corporate Governance.