For DA Alvin Bragg, now comes the hard part: Securing a Trump conviction

The indictment itself is filled with potential problems for prosecutors but has notable differences from past cases involving hush money payments.

Former President Donald Trump sits in court with members of his legal team.
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For more than two years, there has been much talk about whether Donald Trump would ever be held accountable for his brazen efforts to overturn the results of the 2020 election to remain in office.

But it turns out the first criminal charges against the former president have nothing to do with the 2020 election, or the rampage by his supporters at the U.S. Capitol on Jan. 6, 2021. Instead, the case against him reaches back to 2016 and implicitly implies his victory over Democrat Hillary Clinton was tainted — not by Russian meddling, as was long alleged by Trump’s critics, but by something somewhat more tawdry:  payments to a porn star and a former Playboy model so they wouldn’t go public with claims that they had past sexual encounters with the man who was then the Republican candidate for president.

“The defendant DONALD J. TRUMP repeatedly and fraudulently falsified New York business records to conceal criminal conduct that hid damaging information from the voting public during the 2016 presidential election,” reads a “statement of facts” that accompanies the indictment of the former president brought by Manhattan District Attorney Alvin Bragg that was unsealed following Trump’s arraignment in a New York City courtroom Tuesday.

The indictment, as first reported by Yahoo News, is far more serious than Trump and his advisers expected: 34 felony counts of falsifying business records, a crime that, standing alone, is a misdemeanor but was bumped up by Bragg’s prosecutors to Class E felonies (the lowest level under New York state law) under the theory that the fraudulent records concealed election law crimes, both federal and state, and possibly New York tax law.

But the indictment itself is filled with potential problems for prosecutors. Federal election law on the question of whether so-called hush money payments constitute a crime is far from settled. Former Sen. and vice presidential candidate John Edwards was prosecuted by Justice Department officials for soliciting wealthy donors to pay his paramour while he was running for president in 2008. The jury acquitted Edwards on one count and was conflicted on the others, resulting in a hung jury and a later DOJ decision to drop the whole matter.

Manhattan District Attorney Alvin Bragg speaks at a podium.
Manhattan District Attorney Alvin Bragg speaks after Trump appeared in a New York City courtroom on Tuesday. (Brendan McDermid/Reuters)

More recently, the Justice Department under both Republican former Attorney General William Barr and Democratic Attorney General Merrick Garland declined to pursue Trump over his hush money payments despite the fact that his former lawyer Michael Cohen pleaded guilty to illegally making such payments at Trump’s direction in 2018.

In short, experts say, prosecutors who bring cases alleging the illegality of payments to keep somebody from talking during a campaign are taking a risk.

“It’s never been successfully prosecuted,” said Brett Kappel, a Washington lawyer who specializes in election law cases. “There are a couple of novel aspects of this case that will insure there will be quite a bit of litigation before a trial.”

Nor is it clear that Bragg, a New York state prosecutor, can seek to prosecute a federal campaign law violation in the first place or that New York state election law would even apply to a candidate for federal office. That said, Bragg’s statement of facts did lay out some damning evidence that his prosecutors can work with.

The key issue, according to Lawrence Noble, a former Federal Election Commission general counsel, is Trump’s “intent” in directing Cohen to pay off the porn star (Stormy Daniels) and the Playboy model (Karen McDougal) and, in the case of the $130,000 paid to Daniels, reimbursing the lawyer for making them and then falsely characterizing them in internal Trump Organization records as “legal expenses.”

As laid out in the statement of facts, the issue came front and center for Trump after the release of the “Access Hollywood” tape on Oct. 7, 2016. In that infamous clip, Trump is seen boasting, “When you’re a star, they let you do it. You can do anything. ... Grab ’em by the p***y. You can do anything.”

According to the charging document released Tuesday, the evidence shows “that both the Defendant and his campaign staff were concerned that the tape would harm his viability as a candidate and reduce his standing with female voters in particular.”

In the Edwards case, the former senator evaded conviction by arguing that he sought the hush money payments not to advance his electoral prospects but to keep the information from his wife, who was suffering from cancer. But Bragg’s statement of facts outlines a conspiracy that was all about protecting Trump the candidate — and had little to do with avoiding embarrassment for his wife or family, therefore rendering the expenditures illegal campaign payments.

“The Defendant directed Lawyer A [a reference to Cohen] to delay making a payment to Woman 2 [Daniels] as long as possible,” the statement reads. “He instructed Lawyer A that if they could delay the payment until after the election, they could avoid paying altogether, because at that point it would not matter if the story became public.”

David Pecker, former CEO of American Media, holds a microphone.
David Pecker, then-CEO of American Media, in New York City in 2014. (Marion Curtis/Reuters)

And then there is David Pecker, the former chief executive officer of American Media, owner of the National Enquirer, who met with Trump after he announced his candidacy and agreed to be the GOP hopeful’s “eyes and ears,” looking for stories that might damage his electoral prospects only to kill them. In one such case, he negotiated an agreement to pay a doorman at Trump Tower $30,000 to suppress a story that Trump had allegedly fathered a child out of wedlock (there is no evidence the story was actually true), as well as another agreement to pay off McDougal, the onetime Playboy model, to keep quiet about her alleged affair with Trump.

In what may have been one of the most significant assertions in the statement of facts, Bragg’s prosecutors tied everything Pecker did for Trump solely in the context of advancing his candidacy — and asserted they have evidence that can prove it.

“The Defendant [Trump] was inaugurated as President on January 20, 2017,” the statement reads. “Between Election Day and Inauguration Day, during the period of the Defendant’s transition to his role as President, the Defendant met with the AMI CEO [Pecker] privately in Trump Tower in Manhattan. The Defendant thanked the AMI CEO for handling the stories of the Doorman and Woman 1 [McDougal] and invited the AMI CEO to the Inauguration. In the summer of 2017, the Defendant invited the AMI CEO to the White House for a dinner to thank him for his help during the campaign.”

That statement alone suggests Pecker gave explicit testimony that connected all these payments to advancing Trump’s electoral prospects. There has been much speculation that the key witness against Trump would be Cohen, a potential problem for prosecutors since he was criminally prosecuted and imprisoned for multiple crimes, including perjury. But in fact the statement suggests that Pecker may be even more important. “The actual star witness,” said Kappel, “is going to be David Pecker.”