Eisen, Perry, & Wertheimer: Trump’s Hush Money Is News Again. Here’s Why We Should Care.
A criminal investigation of former President Donald Trump being restarted by Manhattan DA Alvin Bragg, and discussed in a new book by one of his former prosecutors, Mark Pomerantz, raises vital issues of both election integrity and accountability, Ambassador Norman Eisen (ret.), E. Danya Perry, and Democracy 21 President Fred Wertheimer write in a deep dive published today on Just Security.
The Manhattan DA’s criminal investigation addresses Trump’s hush money payments in the last days of Trump’s 2016 campaign and related matters.
“While many would have liked to see Bragg push this case forward long ago, we are hopeful that justice delayed will not be justice denied,” Eisen, Perry, and Wertheimer write.
Trump’s personal attorney Michael Cohen went to prison for making illegal campaign contributions on Trump’s behalf. But, Trump, identified as “Individual-1” by the Justice Department in court filings, emerged legally unscathed. That may now change, the authors write, if Bragg can overcome several major legal hurdles.
“As a baseline matter,” they write, “the evidence that the former President committed crimes seems powerful [but] Bragg faces a series of hurdles in charging and convicting Trump.”
The legal obstacles “are real,” Eisen, Perry, and Wertheimer write, “but we think can be overcome.”
The authors explain in detail the central legal hurdles that Bragg will face, including:
The core underlying conduct occurred at the end of 2016, more than six years ago, whereas charges in a case of this kind must usually be brought within five years.But there are exceptions that allow Bragg to overcome this hurdle, the authors write, including how under New York law the statute of limitations is “tolled” (that is, stops running) when a defendant is “continuously” outside of the state.
The clock definitively stopped running once Trump officially became a Florida resident in 2019, and may even have stopped for bulk of his presidency, they note. “The Manhattan DA therefore has ample time to prosecute — despite a number of recent statements by Trump proclaiming that the statute of limitations has run out,” Eisen, Perry, and Wertheimer write.
Hurdle 2: Nexus To “Another Crime”
“Even if Trump committed the crime of keeping false books and records, the statute requires proof that he did so to further ‘another crime’ for the violation to be a felony,” the authors write.
The problem, the authors explain, is that the clearest example of other crimes are violations of federal law, including federal campaign finance laws and potentially mail and wire fraud that could also trigger money laundering statutes. Some in the DA’s office, they write, “questioned whether falsifying a business record to commit a federal crime — rather than a New York crime — meets the requirements of the relevant statute.”
There is no statement that the statute applies only to state offenses, and there is no exclusion of federal crimes, Eisen, Perry, and Wertheimer write.
Moreover, the authors write, “the DA can also rely on principles of statutory interpretation. […] Nor should Bragg give up on developing evidence of state crimes that could elevate Trump’s possible books and records violation into a felony.”
Hurdle 3: Evidence At Trial
Another hurdle in any prosecution of Trump, according to Eisen, Perry, and Wertheimer, is “the means by which Bragg will have to present his case to a jury. The DA would likely rely heavily on the testimony of the go-between for the payments, Michael Cohen — a convicted felon and a controversial figure who some say is tarnished as a witness.”
Prosecutors, however, they write, “often have to rely on cooperating witnesses who participated in a crime to prove their case. Cohen accepts responsibility for his wrongdoing, which goes a long way with a jury. Moreover, Cohen has already served his time, so he does not stand to benefit from a potential sentencing reduction — and therefore, the prosecution will argue, is less motivated to fabricate testimony in the way that a typical cooperator praying for leniency is.”
The authors continue: “We also expect a jury to find his testimony credible because the alternative is too implausible. Who would believe that Cohen decided to spend $130,000 of his own money without discussion or direction from his boss, the beneficiary of the scheme?”
Hurdle 4: Advice Of Counsel Defense
Another hurdle will be overcoming the defenses Trump may raise, and is already advancing, including the “advice of counsel” defense.
“Under New York law,” Eisen, Perry, and Wertheimer write, “that defense would require Trump to prove not only that Cohen told him the hush money payments were legal but also that Trump relied on that advice in good faith. The defense has some surface plausibility, and Trump is undoubtedly echoing what his lawyers are telling him now that Bragg seems to be moving ahead.”
The authors continue: “But Cohen himself will surely deny he made any such claim to Trump. If Trump testifies to the contrary (and taking the stand will be a most risky proposition), it is fair to wonder who the jury will believe particularly when prosecutors will cross-examine Trump using at least some of the more relevant among his 30,000 proven lies. If Trump does not testify, it would be difficult or impossible for him to establish this defense.”
Hurdle 5: Sentencing And Jail Time
“If Bragg charged Trump only with a books and records violation based on the hush money payments,” Eisen, Perry, and Wertheimer write, “Trump would likely not be looking at jail time. That is true even if the charge were elevated to a felony.”
But, the authors write, if “Bragg were to situate the hush money charges in a broader context of other financial frauds and charges, that could substantially increase the sentence Trump would be facing and make jail time much more likely. That likely explains why the DA is putting the possibility of [Trump Organization CFO Allen] Weisselberg’s prosecution or cooperation back on the table with reports that Trump’s former aide is facing new potential insurance fraud charges.”
If Weisselberg subsequently “flips,” they write, further charges against Trump may include additional counts of falsifying business records, tax fraud, and enterprise fraud.
“Whether or not those broader additional charges are brought the facts and law afford DA Bragg a path to Trump’s indictment and conviction for his role in the hush money payments,” Eisen, Perry, and Wertheimer write.
Read the full report online at Just Security.
