Prosecute Donald Trump for payment of Stormy Daniels? Manhattan District Attorney Alvin Bragg’s Dilemma

Manhattan District Attorney Alvin Bragg is said to be closing in on an impeachment of Donald Trump over the Stormy Daniels case. It’s time.

You remember Stormy. She is the porn star who claimed to have had an affair with Trump at the Beverly Hills Hotel in 2006, but she waited until he ran for president in 2016 to threaten to go public on the eve of the presidential election. She received $130,000 in hush money to buy out her hush. Trump called it a “simple private transaction”. An extramarital sexual affair never looks good when you’re running for president, particularly when you’re trying to appeal to an evangelical MAGA base.

The circumstances of the bribery had enough insignia of fraud to raise the eyebrows of the most timid prosecutor. A “settlement agreement” was established to compromise non-existent “claims” between “Peggy Peterson” and “David Dennison”, fictitious names intended to conceal the actual parties involved. The payment would come from a fake company called “Essential Consultants,” set up by Trump’s fixer lawyer Michael Cohen.

Cohen borrowed at his house to raise the money. He remitted the funds only after Stormy informed Cohen that he was about to tell his story to the National Enquirer. In 2017, (after he became president), Trump wrote checks to reimburse Cohen. The payments were falsely referred to as “legal services rendered” under a fictitious “retainer agreement.” They were actually illegal contributions to the Trump campaign. It was a cover-up, pure and simple, to hide the true nature of the payments and a felony violation of federal campaign finance laws.

Cohen pleaded guilty in federal court to violating election laws and went to jail. It is said that he is now cooperating with the Bragg office.

Former federal prosecutor Elie Honig reports in his book “Untouchable” that the feds considered impeaching Trump in 2021 for this egregious violation of federal election laws, but decided against it because the events of January 6 “made campaign finance violations seem somehow trivial and outdated by comparison” . “We were very aware of the prudential reasons why you would not impeach a president, even after he was no longer in office,” a person in a position to know told Honig.

Under New York law, Falsifying Business Records (FBR) is a felony where the falsification is intended to cover up another “crime.” Otherwise, the offense is just a misdemeanor, punishable by a year in prison, small potatoes for a former president. Trump falsified transaction records to cover up the federal campaign finance breach. The question is what is a crime that authorizes the enrichment of a felony: a New York crime, clearly, but when the FBR criminal statute talks about a crime, does it include a federal crime?

Cy Vance, Bragg’s predecessor, left office leaving the Trump/Daniels case pending.

But FBR’s statute is ambiguous. It seems to give with one hand and take away with the other. There are strong policy reasons for converting the FBR offense to a felony where the underlying offense is federal. The reason for the policy is that we have a very negative view of people who falsify business records to hide illegal campaign contributions.

Judges interpret the meaning of an ambiguous law in light of other statutes on the same subject. Here, there is something useful in New York Judicial Law. In the context of the automatic disbarment of a lawyer upon conviction of a serious crime, the The New York Court of Appeals has emphasized that conviction of both a federal and state felony is sufficient to warrant automatic disbarment even if there is no New York law analogue, reaffirming its position that: “Judicial Law section 90(4) mandates the automatic disbarment when a lawyer is convicted of any crime “judged by Congress to be so serious and so offensive to the community as to warrant punishment as a felony.”

Cohen appeared before a New York County grand jury on Monday and will return Wednesday. Prosecutors also invited Trump to appear to give his side of the story. but Trump quickly refused to testifylosing his last clear chance to avoid prosecution.

We are all equal before the law, and criminal investigations are color blind. Nonetheless, Trump, feeling the heat of the reignited Stormy investigation, played the race card, calling Bragg a “racist.” a term reserved for certain investigative prosecutors. Bragg is black.

Bragg may well have bragging rights for being the first to finish in the prosecutor’s frustratingly slow race to indict Donald Trump.

Zirin is a former federal prosecutor in the Southern District of New York.