OPINION: This article may contain commentary which reflects the author's opinion.
A legal expert writing in The New York Times declared that Manhattan District Attorney Alvin Bragg’s ‘hush money’ case against former President Donald Trump will be a mistake of “historic” proportions.
Boston University law professor Jed Handelsman Shugerman contended that Bragg’s efforts to prosecute a federal election offense under New York state law constituted overreach. He criticized the Manhattan DA’s allegations against Trump as “vague,” pointing out the prosecution’s failure to specify “an election crime or a valid theory of fraud.”
Trump is facing 34 counts of falsifying business records in connection with alleged hush money payments made to adult film actress Stormy Daniels before the 2016 election. The presumptive GOP presidential nominee appeared in court on Wednesday as the trial continued.
Shugerman proposed that Bragg should pivot his argument to focus on the notion that “it’s not the crime; it’s the cover-up,” highlighting the alleged falsification of business records.
“Most of them were entered in early 2017, generally before Mr. Trump filed his Federal Election Commission report that summer. Mr. Trump may have foreseen an investigation into his campaign, leading to its financial records. Mr. Trump may have falsely recorded these internal records before the FEC filing as consciously part of the same fraud: to create a consistent paper trail and to hide intent to violate federal election laws, or defraud the FEC,” Shugerman noted in his op-ed.
However, the law professor noted that Bragg’s filing and Monday’s opening statements do not indicate prosecutors were following this approach. He also conceded that his own explanation could also encounter “significant legal problems.”
Shugerman also said Bragg’s election interference theory is “weak,” adding, “As a reality check, it is legal for a candidate to pay for a nondisclosure agreement.”
The law professor also raised three problems with Bragg’s effort to prosecute a federal crime in a state court. The first, he wrote, was that there was no previous case of “any state prosecutor relying on the Federal Election Campaign Act,” which he called an “overreach.”
The second issue he raised was that the prosecutors did not cite judicial precedents involving the criminal statute at hand.
“Mr. Trump’s lawyers argued that the New York statute requires that the predicate (underlying) crime must also be a New York crime, not a crime in another jurisdiction. The Manhattan DA responded with judicial precedents only about other criminal statutes, not the statute in this case. In the end, they could not cite a single judicial interpretation of this particular statute supporting their use of the statute,” Shugerman noted.
The third issue, he said, was that precedent in New York did not allow “an interpretation of defrauding the general public,” Shugerman wrote.
He then observed that it is reasonable for Trump and his supporters to question whether the case against the former president was about “Manhattan politics” rather than New York law.
“This case is still an embarrassment of prosecutorial ethics and apparent selective prosecution,” Shugerman concluded, adding that Trump could likely win on an appeal if he is convicted. “But if Monday’s opening is a preview of exaggerated allegations, imprecise legal theories and persistently unaddressed problems, the prosecutors might not win a conviction at all.”
Earlier, Trump warned Americans that they wouldn’t “have a country anymore” if they didn’t vote for him in the November presidential election.
During an interview on “One Nation, Trump, the presumptive GOP presidential nominee, weighed in on a variety of topics — including his anticipated rematch with Democratic opponent President Joe Biden on November 5.
“The most important day in the history of our country is going to be November 5,” Trump said. “Our country is going bad. And it’s going to be changed on November 5, and if it’s not changed, we’re not going to have a country anymore.”
