Alvin Bragg’s Case Against Trump Is Still a Mystery
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If you wrote a list of American political virtues, “patient” would not figure prominently. So when we learned last week that Manhattan District Attorney Alvin Bragg had secured a grand jury indictment of former President and prominent Truth Social poster Donald Trump, nobody wanted to wait before jumping to conclusions. Speculation on the contents, strategy, and strengths of the unseen indictment was rife. Some legal commentators urged patience. Wait, we said. Wait to read the indictment. Then we’ll know so much more about the District Attorney’s theory and strategy.
Well. Don’t we have egg on our faces. Alvin Bragg released the indictment today after Trump’s terse and grumpy arraignment, supplemented it with an unusual “Statement of Facts,” and topped it off with remarks at a press conference. But we still don’t know everything we need to know to evaluate the prosecution. We only know the bare bones and the details the District Attorney decided to share.
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We know that Trump stands charged with 34 counts of violation of New York Penal Law § 175.10, which prohibits making false entries in business records with intent to defraud. We know that the District Attorney charged these crimes as felonies, thus assuming the burden of proving that Trump made the false entries in order to commit or conceal another crime. We know where the allegedly fraudulent entries were made — in general ledgers and checkbooks of the Trump Organization and the Trump Revocable Trust — and the dates they were made. We even know (as we’ve known for months) the very general theory of the case: Former Trump fixer and rehabilitation-tourist Michael Cohen paid $130,000 in hush money to Stormy Daniels so she wouldn’t reveal a series of memorable-but-not-in-a-good-way sexual encounters with Trump, and when Trump reimbursed Cohen (surprisingly) he falsely classified the reimbursement as payment of legal fees. The Statement of Facts even has allegations about which transactions happened when, and what the participants discussed.
What we don’t know — at least with the precision necessary to evaluate the case’s strengths and weaknesses — is the District Attorney’s specific legal theory of how Trump was defrauding anyone and how he was promoting or concealing a crime by doing so. That may sound like law pedantry, but it’s crucial to understanding the case.
Commentators disagree, but some argue that Bragg will have to prove that Trump conned someone out of money or property, or at least impeded the government’s functions, to prove he falsified his books with intent to defraud under the statute. We don’t know Bragg’s theory of how he’d meet that burden, because neither the indictment nor the Statement of Facts spells it out.
Moreover, different crimes have different intent and knowledge requirements. Is the District Attorney arguing — as Bragg and his Statement of Facts imply — that Trump cooked the books to hide that he was committing federal campaign finance violations, because the payoff to Stormy Daniels was a prohibited contribution to his own campaign? That’s a heavy lift: Campaign finance violations generally require the government to prove that the defendant acted “knowingly and willfully,” meaning that the defendant knew their action was illegal. (As a rule, crimes mostly committed by rich people have daunting intent requirements, crimes mostly committed by poor people are easy to prove.) But we don’t know their theory because they don’t spell it out.
Is the District Attorney asserting that Trump was promoting tax fraud by making false entries in the Trump Organization’s otherwise-no-doubt-irreproachable books? I don’t know, and I do this for a living. The Statement of Facts says that the participants “also took steps that mischaracterized, for tax purposes, the true nature of the payments.” But whose taxes were changed, and how? We don’t know, so again we can’t evaluate the intent requirements the DA will have to meet or how unlikely it is that Trump understood them enough to be criminally liable.
Bragg also said that Trump promoted a candidate (himself) by unlawful means through these false entries. That’s probably a reference to New York Election Law § 17-152, a misdemeanor that prohibits conspiring to promote or prevent someone’s election through unlawful means. But what are the unlawful means? Are we back to the campaign finance violations? Is this merely circular? The indictment doesn’t say.
To understand Bragg’s burden of proof, the challenges his office will face, and Trump’s likely defenses, we need to know more about his legal theory of the case. This is a common problem with state prosecutions. District Attorney’s generally don’t offer “speaking indictments” that both narrate the government’s version of the facts and apply them to the law. That’s in sharp contrast to many federal indictments, and particularly Special Counsel Robert Mueller’s verbose indictments of various Trump associates. Mueller would have explained how Trump intended to defraud and what specific crimes — with citations — he intended to promote or conceal.
One thing is absolutely certain — we don’t know anything about the strength or provenance of the case because the District Attorney brought 34 counts. That’s puffery — the number of counts doesn’t have a material impact on the sentence and won’t significantly alter what evidence is admissible. The DA could have brought a half-dozen counts and covered his bases and lost nothing. Nearly 30 years ago, federal judge William Matthew Byrne Jr. — who famously presided over the Daniel Ellsberg Pentagon Papers trial — hollered at me for about 10 minutes for bringing a 21-count grand jury indictment for fraud. He accused me of piling on counts so I could impress women in bars. At the time, I thought the criticism was unfair (and that Judge Byrne’s grasp of what women want was somehow worse than mine). Now I realize that gratuitous count-padding is performative and time-wasting. Prosecutors do it because it works — how many breathless references to 34 counts did you read this week?
As the cases progresses, Bragg will be forced to show his hand (likely in response to motions by Trump) and we’ll learn more about his specific theories and their chance of success. For now, be skeptical of certain predictions.
Ken White, a partner at Brown White & Osborn in Los Angeles, is a former federal prosecutor, a criminal defense attorney, and a First Amendment litigator. He co-hosts the “Serious Trouble” podcast about legal tumult like this.
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