Does Trump’s New York Indictment Hold Water?: A Roundup

Surprisingly, views don’t fall along standard partisan lines

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Donald Trump was recently indicted by a Manhattan grand jury on 34 counts of felony, following charges put forward by District Attorney Alvin Bragg. It was the first indictment of a sitting or former U.S. President in American history, and it predictably sparked controversy—though not necessarily along predictable partisan lines.  

The charges center on Trump’s alleged falsification of business records regarding payments to adult film star Stormy Daniels, meant to secure her silence about her purported affair with him. Such falsifications would normally be misdemeanors, but under New York law, they can be charged as felonies if they are meant to camouflage another underlying crime—in this case, alleged violations of the campaign finance laws Trump was subject to during his 2016 presidential campaign.

Some believe that the charges have a weak legal justification, particularly because election finance laws are vague and unclear. Andy Craig, an analyst at the centrist Rainey Center, an adjunct scholar at the libertarian Cato Institute, and a Trump critic who has written for The UnPopulist, observes in the Daily Beast:

The theory goes that paying Stormy Daniels was really a campaign expense, just like buying TV ads or hiring a pollster or paying your campaign manager. There has been widespread confusion on this point. A common misunderstanding is that Trump used campaign funds to buy Stormy’s silence and that’s the problem. That’s not an unreasonable intuition, because that would be obviously improper. But prosecutors have actually advanced the opposite interpretation: that Trump should have used his campaign to pay Stormy. …

… There’s something patently absurd about treating such matters as legitimate campaign expenses. Candidates still have their own personal and business capacities outside of their FEC-regulated campaign committees. They’re allowed to enter into contracts, execute transactions, and other normal business without routing everything through their campaign. In fact, the law forbids treating improper personal expenses as campaign expenses. Others have gotten in trouble for that, including other cases involving sex scandals and extramarital affairs.

As unsympathetic as politicians covering up their affairs are, the legal interpretation that doing so amounts to a campaign finance violation creates an untenable Catch-22. Something which isn’t itself illegal becomes effectively banned because the government provides contradictory rules on how it’s to be treated for book-keeping purposes.

Craig argues there are more solid grounds for charges based on Trump’s other transgressions, such as his attempt to manipulate election results in Georgia and his incitement of the failed insurrection of Jan. 6. Using poor legal arguments to indict Trump in Manhattan undermines the reason for which he should be indicted—protecting the rule of law and ensuring no one is above it. Craig contends:

Giving the devil the benefit of law isn’t about protecting the devil. It’s about protecting ourselves. Upholding the rule of law by holding Trump accountable should not be done by undermining the rule of law as it regards the state’s ultimate power to impose criminal punishments. To the degree there’s a moral and constitutional point to be made about how no man is above the law, a bogus prosecution based on the Stormy Daniels affair would defeat the whole purpose.

Likewise, Jacob Sullum, an indictment-skeptic at the libertarian Reason magazine points out that the New York indictment alleges that Trump "violated election laws" when he instructed Cohen to pay Daniels. But, he notes:

That claim is based on the assumption that the payment was aimed at influencing the election rather than avoiding personal embarrassment and/or sparing Melania Trump's feelings. While that inference seems plausible given the payment's proximity to the election, it is not clear that the Justice Department's reading of the law in Cohen's case was correct.

Former FEC Chairman Bradley Smith thought not. "The best interpretation of the law," he wrote after Cohen's guilty plea, "is that it simply is not a campaign expense to pay blackmail for things that happened years before one's candidacy—and thus nothing Cohen (or, in this case, Trump, too) did is a campaign finance crime." At the very least, Smith said, "it is unclear whether paying blackmail to a mistress is 'for the purpose of influencing an election,' and so must be paid with campaign funds, or a 'personal use,' and so prohibited from being paid with campaign funds."

It is also unclear whether Trump, who seemed confused about what federal election law requires, "knowingly and willfully" violated it, as would be required for a criminal conviction.

Skepticism of the indictment can also be found on the left side of the aisle. In the Intelligencer vertical at the progressive magazine New York, the liberal journalist Jonathan Chait argues that the indictment rests on highly questionable logic:

To imagine this particular combination of campaign-finance charges and business-records enforcement as simply “the law” is wildly naïve. Prosecutors have some cases that clearly constitute crimes (say, tax fraud), others that clearly do not constitute crimes, and a nebulous middle ground in which judgment is required. …

… The specific danger that Comey avoided, but that Bragg wanders directly into, is the criminalization of politics. Elected officials ought to be held to the same standard as other Americans. While their standing does not give them license to commit crimes, it also shouldn’t expose them to criminal liability that a regular person would never face.

Trump is in this position because he maneuvered to keep quiet a tawdry story about his infidelity. That is not a crime. The alleged crime is disguising the source of the payment and, thereby, evading campaign-finance law. But it is not easy for a candidate to pay off a mistress while complying with campaign-finance laws. Trump is in a position where an activity he could have done legally became a crime simply because he was a candidate for office. The entire scheme follows from his effort to cover up an alleged affair. That is the definition of being below, not above, the law.

Others on the left are also doubtful. Writing for the progressive outlet Vox, Ian Milhiser argues that the legal basis for prosecuting Trump appears dubious:

Bragg built his case on an exceedingly uncertain legal theory. Even if Trump did the things he’s accused of, it’s not clear Bragg can legally charge Trump for them, at least under the felony version of New York’s false records law.

As Mark Pomerantz, a former prosecutor in the Manhattan DA’s office who played a significant role in the Trump investigation prior to his resignation in 2022, wrote in a recent book, a key legal question that will determine whether Trump can be charged under the felony version of New York’s false records law has never been resolved by any appellate court in the state of New York.

The felony statute requires Bragg to prove that Trump falsified records to cover up a crime. Bragg has evidence that Trump acted to cover up a federal crime, but it is not clear that Bragg is allowed to point to a federal crime in order to charge Trump under the New York state law.

However, some disagree. Various authors at the politically diverse Lawfare blog (co-published by the centrist Brookings Institution) hold that we don’t yet know enough to assess whether the charges are valid or worthwhile. Importantly, some key details point towards possible legal culpability, indicating the charges are not “mere politics”:

[The indictment] alleges serious misconduct: plotting to pay hush money to multiple people to avoid electoral consequences and falsifying documents to cover it up. And it does so with an apparently powerful array of witnesses and documents to back it up. This evidence appears both more diverse and more substantial than previously understood. …

… Most of those details have to do with Trump’s personal responsibility for the payments, a matter about which the federal government remained relatively circumspect throughout the Cohen prosecution.

The Lawfare authors also note, following District Attorney Bragg, that Trump’s attempt to quash the Access Hollywood tape story for electoral—as opposed to personal—reasons points to the possibility that similar campaign purposes, arguably subject to campaign finance law, explain the payments to Stormy Daniels:

As Bragg frames it, a key date in the story is Oct. 7, 2016: the day that news of the “Access Hollywood” tape broke. “[E]vidence shows that both the Defendant and his campaign staff were concerned that the tape would harm [Trump’s] visibility as a candidate and reduce his standing with female voters in particular,” according to the indictment.

Some have found that at least part of the Manhattan court charges have precedents—that there is reason to think that Trump’s case is not unique, and that charging his alleged bookkeeping fraud as a felony is a normal application of New York law. In a review of past prosecutions for falsifying business records, various legal experts at New York University’s Just Security blog conclude:

Prosecution of falsifying business records in the first degree is commonplace and has been used by New York district attorneys’ offices to hold to account a breadth of criminal behavior from the more petty and simple to the more serious and highly organized. We reach this conclusion after surveying the past decade and a half of criminal cases across all the New York district attorneys’ offices.

Amanda Carpenter of the anti-Trump conservative publication The Bulwark takes a more decisive view. She argues that former Trump lawyer Michael Cohen’s claim that the payments were meant to aid Trump in the election is critical evidence. For Carpenter, Trump is directly implicated by Cohen’s testimony, as well as that of former America Media CEO David Pecker, who was also involved in payments to a woman alleging an affair with Trump:

That was the purpose of the “hush money” payments—not to enrich the women or settle a personal matter, but, in the words of the man who went to prison for arranging the deals, “for the principal purpose of influencing the election.” ...

… There is no question that these deals were illegally made. We know this because the men who set them up have admitted their guilt, and further admitted to having done so to assist Trump’s campaign.

Carpenter’s argument, like the review of the case at Lawfare, suggests that while the New York charges against Trump may initially appear weak, the full strength of the Manhattan indictment requires more time to be properly assessed.

Still, on balance, serious reviews of the New York charges have tended to see them as questionable applications of the law and of Bragg’s prosecutorial discretion. If these assessments prove true, Bragg’s decision to bring the case to court could have unfortunate political consequences, particularly if it strengthens Donald Trump’s hand in the presidential election.

Yet in our highly polarized democracy, the general agreement about the case is not altogether a bad sign. As The UnPopulist’s Shikha Dalmia has observed elsewhere, the broad agreement about the Manhattan prosecution “shows that [the] epistemic infrastructure of [a] free society can still generate consensus when not overwhelmed by misinformation.” America’s liberal democracy may be going through unprecedented times, but its infrastructure in the rule of law and in a free press continues to show signs of life.