Legal experts have clashed over the strength of the legal case against Donald Trump following his momentous court appearance in New York..
In an indictment unsealed on Tuesday, prosecutors say the 45th president falsified records about three hush-money payments to keep potentially damaging stories from coming to light as he campaigned for the presidency.
Manhattan District Attorney Alvin Bragg said it was his effort to cover up crimes related to the 2016 election that allowed prosecutors to elevate the charges to felonies.
However, experts said the indictment raises many thorny issues about state and federal law that could provide openings for the defence to attack the charges to try to get them thrown out before the case even gets to trial.
“The bottom line is that it’s murky,” said Richard Hasen, an expert in election law and professor at the University of California, Los Angeles law school.
“And the district attorney did not offer a detailed legal analysis as to how they can do this, how they can get around these potential hurdles. And it could potentially tie up the case for a long time.”
Mr Trump has railed against the charges, saying he did nothing wrong and the case is political persecution.
In remarks from his Mar-a-Lago home in Florida just a few hours after his court appearance, he said, “This fake case was brought only to interfere with the upcoming 2024 election and it should be dropped immediately.”
Analysts said that in the end, the case is not about the tawdry details of the hush-money payments. It is not about the porn star Stormy Daniels or Mr Trump’s acrimonious relationship with his lawyer-turned-government witness, Michael Cohen.
It is about a presidential candidate using his money and influence to silence potentially damaging stories that might make voters choose another candidate, particularly as Mr Trump’s reputation was suffering at the time from comments he had made about women.
The 34 counts of falsifying business records would normally be misdemeanours, lower-level charges that would not normally result in prison time.
But they were bumped up to felonies — which carry up to four years behind bars — because, Mr Bragg says, they were done in an effort to commit or conceal other crimes.
The 130,000 dollar payment to Ms Daniels exceeded the federal cap on campaign contributions, Mr Bragg said. He also cited a New York state election law that makes it a crime to promote a candidate by unlawful means.
“That is what this defendant did when he falsified business records in order to conceal unlawful efforts to promote his candidacy, and that is why we are here,” one of the case prosecutors, Chris Conroy, told the judge on Tuesday.
Prosecutors filed a “statement of facts” that told their story of a scheme to protect Mr Trump’s presidential prospects by buying and suppressing unflattering information about him.
Still, some legal observers were surprised that the indictment itself was not more specific about how each of the charges was elevated to a felony.
“There are an awful lot of dots here which it takes a bit of imagination to connect,” said Richard Klein, a Touro Law Centre criminal law professor.
Mr Bragg said the indictment does not specify the potential underlying crimes because the law does not require it. But given the likelihood of Mr Trump’s lawyers challenging it, “you’d think they’d want to be on much firmer ground than some of this stuff”, said Mr Klein, a former New York City public defender.
Mr Hasen said it is not clear whether candidates for federal office can be prosecuted in cases involving state election laws. The defence may also argue the case cannot be brought in state court if it involves a federal election law.
Prosecutors, however, also alluded to another accusation involving tax law: that Mr Trump’s scheme included a plan to mischaracterise the payments to Mr Cohen as income to New York tax authorities.
“They did talk about tax crimes, and I think that could be potentially more compelling for the jury,” Renato Mariotti, a former federal prosecutor, said on ABC News. “It’s a safer bet than the campaign finance crimes.”
While the prosecution’s case is unusual, it is not unwinnable, experts said.
Mr Bragg is “going to bring in witnesses, he’s going to show a lot of documentary evidence to attempt to demonstrate that all these payments were in furtherance of the presidential campaign”, said Jerry Goldfeder, a veteran election lawyer in New York and the director of Fordham Law School’s Voting Rights and Democracy Project.
“It remains to be seen if he can prove it beyond a reasonable doubt,” Mr Goldfeder said. But he added: “Do not underestimate District Attorney Alvin Bragg and do not overestimate Mr Trump.”
