Alvin Bragg's Trump Case - A Primer

All you need to know about the left's latest -- and lamest -- lawfare

Apr 14, 2024

So this week, Alvin Bragg will bring Donald Trump to trial on 34 counts of Falsifying Business Records — all felonies.

Let’s be blunt: with over 30 years of law enforcement and legal experience in and around the criminal justice system — much of it dealing with the Manhattan DA’s office — I can tell you with 100% assurance that there is NO WAY this case is made against anyone not named Trump.

Now, full disclosure: We published most of the below immediately after the case’s indictment. But it all still holds — including the obvious problems the case has.

Here’s why.

First: Understand that the case could only be made if the charges were felonies, because the misdemeanor version of that charge has a statute of limitations of two years. We are clearly past that.

The felony version of that charge has a statute of limitations of five years.

So: to get to the felony version of Falsifying Business Records — and to the five years he needs — Bragg has to show that the false business records were made with the intent to commit or conceal another crime (which is the felony requirement).

What Bragg Has Done

Bragg got the indictment on the 34 felony counts. That indictment has been released. Bragg also submitted a Statement of Facts that gives a loose accounting of actions that his office feels supports the indictment.

From a reading of the two documents, here are the problems.

Problem 1: The Lack of Specificity in the Indictment

Under New York Criminal Procedure Law 200.50, an indictment must contain

A plain and concise factual statement in each count which… (a) asserts facts supporting every element of the offense charged… with sufficient precision to clearly apprise the defendant or defendants of the conduct which is the subject of the accusation.

In other words: Each charge has to be sufficiently spelled out so that the accused knows exactly what he is accused of.

The misdemeanor aspect of the charges meets this threshold. But to get the felony, under this standard, Donald Trump needs to be apprised — in the Indictment itself — what other crime he “intended to commit or conceal.”

This second crime is not here, but instead hovers ghost-like in the Statement of Facts. There are possibilities for it vaguely alluded to there, as in Bragg’s (hurried and defensive) press conference.

But that is not specific enough — and it is not in the indictment itself. And by now — the case is going to trial! — this second charge should have been explicated. Certainly in a case of this magnitude.

Now, under NYS caselaw, a follow-on document called a “Bill of Particulars” could supply the missing ingredients.

But so far — and as a demonstration of the apparent contempt Bragg’s office has for the defendant and the public — none of that was included in the actual indictment. Nor has a Bill of Particulars outlining the second charge come to light.

As his office surely knew at least half the country would be asking this question — and that this is an unprecedented aspect of this charge — Bragg’s hiding the ball on this issue is telling.

(The Ghostbuster himself, spotted on the street in NYC recently)

Problem 2: Prosecuting This “Ghost Crime”

There appear to be three possibilities for this elusive secondary crime that bumped the misdemeanor to a felony: (a) A Federal Election Law violation; (b) A NYS Election Law violation; and (c) a tax crime.

(a) Federal Election Law: Put simply, Bragg has no jurisdiction over a federal campaign law violation. He’s a state prosecutor. Should he attempt to invoke this, this becomes the case’s most likely point-of-failure on appeal.

Secondly, as Andrew McCarthy has pointed out, if this construction were allowed — that is, that any “crime” could serve as the second crime to get the felony charge — then what is the limiting principle? If U.S. federal law is allowed, how about another nation’s laws? Tribal law? Sharia law?

Clearly, the legislative intent of the felony Falsification of Business Records statute was for it to cover New York State laws. Otherwise, the possibilities become limitless and ludicrous.

Lastly, as former FEC Chairman Brad Smith pointed out in the WSJ, the facts here don’t qualify as a federal campaign finance violation, because “the underlying obligation wasn’t created by the act of campaigning.” (In other words: even if it did occur, sleeping with Stormy Daniels wasn’t part of the campaign).

That’s the federal rule. Essentially, Trump — like so many others! — is allowed to clean up his past with an NDA for the purposes of running a campaign.

Bragg believes he knows this law better than the former head of the FEC?

(b) NYS Election Law: Trump wasn’t running in a NYS Election, so there is the question of whether these laws would even apply. But accepting that they do: Then why didn’t Bragg charge this? This is within his purview, and it would’ve cleared all this up.

It seems no accident that as soon as the questions during Bragg’s press conference after announcing the charges veered in this direction, he skedaddled.

Problem 3: The Statute of Limitations Still Doesn’t Work

Even if we accept Alvin Bragg’s theory of the case, there is a clear timeline issue with most of the charges.

Trump was indicted on March 30, 2023. The statute of limitations on the felonies, as noted above, is five years. That takes us back to March 30, 2018.

During the height of COVID, Gov. Andrew Cuomo “tolled” (stopped from running) the statutes of limitations on all NYS charges, because the courts were closed. That abeyance was in effect from March 20, 2020 to Nov. 3, 2020 — roughly seven-and-a-half months.

That addition takes us back to approximately mid-August, 2017 (give or take a day or two, which won’t matter here).

Which means: Even under Bragg’s current theory of the case, the first 22 counts in the Indictment don’t make the cut. It isn’t until count 23 — with a date of September 11, 2017 — that we are within the SOL.

There are stratagems likely forthcoming from Bragg to attempt to get around this — i.e, that Trump concealed his activities (thus tolling the SOL), that he was part of a continuing conspiracy (that’s yet to be charged, however), etc.

But how such a filing, as it currently stands, is expected to survive at trial and then appeal is yet another of the case’s glaring deficiencies.

In a general sense, Bragg seems to be leaving himself as much wiggle-room as possible — and distorting our system to its limits as he goes.

Problem 4: Michael Cohen

Ever wonder why numerous other agencies — including Bragg’s office itself! — previously turned this case down? As Chris explains here, one factor was undoubtedly that predicating your case on a convicted perjurer is generally a non-starter.

Michael Cohen as your star witness? Really?

(Michael “but I’m telling the truth this time!” Cohen, leaving court)

Especially when it was the role of Michael Cohen himself, as Trump’s lawyer, to advise Trump on how to handle the non-disclosure agreement with Stormy Daniels? And who in fact then negotiated that NDA?

Will Michael Cohen — who promises some “surprises,” by the way — testify that Trump is guilty because Trump followed Cohen’s own legal advice?

Problem 5: The Leak

As I noted in a previous substack, and here on foxnews.com, CNN’s reporting of the 34 counts almost a week before the indictment was unsealed is a black-letter violation of New York Penal Code § 215.70: “Unlawful Grand Jury Disclosure.”

The culpability there inures to the leaker — not CNN or its reporter. Somebody leaked the details of that indictment at a time when Bragg’s investigation was being assailed on all sides. It was almost certainly an attempt to change the narrative — and to besmirch the accused.

Ironically, that is an “E” felony — the same as the 34 charges against Donald Trump.

But it’s a felony better-demonstrated by current facts. Why Team Trump didn’t make a bigger issue of this escapes me.

Either way, the unprecedented use of the statute and the amateurish piling-on of 34 counts all telegraphs a barking dog of a case. As my colleague Chris Flanagan — former C.O. of Financial Crimes for NYPD — has stated on this forum, Falsifying Business Records is generally, at most, an add-on charge in a heavier case.

In all, the prosecution is a shameful embarrassment to our justice system — and one that will likely be overturned on appeal. And the fact that Judge Merchan has allowed it to go forward, thus wasting time, money, and the precious capital of our trust in the justice system, is equally a shame.

We’ve said it before, but it bears repeating: It’s not the job of this forum to operate as Donald Trump’s defense team. He has his own lawyers. But that said:

This case is an outrage.

Israel And The U.S. Homefront

At this writing, it looks like the attack on Israel from Iran and several of its proxies has failed to cause any appreciable damage. So — what now? Frankly, anyone who says they know for sure is wrong.

But what we can know: That we better start to think in terms of securing the homefront. If half of what FBI Director Chris Wray said recently — and we have to take him at his word on this, because we have no choice — our internal threat picture is unprecedented.

Is it me, or does it feel like the nation is on the precipice of something… bad? And that our weak leadership is not only not up to it… but has facilitated it?

Here in New York, I expect the NYPD is establishing a visible presence at sensitive locations like the Israeli and Iranian missions to the U.N. Israeli entities like El Al Airlines and others will also likely receive enhanced coverage.

There are also — hopefully — numerous measures underway on the ground to send a message to the Iranians and their proxies that we are aware of them… and that any nonsense will be detected and met.

At the federal level, the JTTF and DHS should be engaged in similar initiatives, utilizing classified operational and cyber intelligence from the three-letter agencies to guide them. NYPD elements embedded with the feds would be involved in this as well. Outside New York, other cities that are target-rich should be doing the same.

There are ways to send the message to our adversaries — but it takes work. So anybody of any value in the “IC” — the intelligence community — should have had their weekend ruined. This is an all-hands-on-deck moment.

Ultimately, however, the IC is directed by our political leaders — at the local, state, and federal level. Is that why I get the feeling that much of what needs to be done — and would have been done in the past — is not getting done now?

I hope I’m wrong.

And Speaking Of The Border….

Those of you with access please join us over on the podcast for a frank interview with Shawn Moran, just-retired Border Patrol Agent and former Vice President of the Border Patrol Union.

(Shawn Moran, 27-year Border Patrol Agent, in the field)

If you want to hear what goes on at the border — really goes on at the border — come join us. It’s the first of a two-part podcast that was, to say the least… revelatory.

And not reassuring. We thank Agent Moran for his service… and his candor.

Headline of the Day

From The Washington Times:

And no plan to house any of the 10 million illegals who’ve breached our border in these empty D.C. buildings? Hmm… wonder why?

Second Headline of the Day

Via The New York Post:

Preposterous. When have you ever heard of a wiseguy hit using knives? Too much effort and risk. And there’s no way one of the major mafia families would ever get involved in something so public. Ignore this.

O.J. did it. He got away with murder.

And finally…

I’m sure this scares Iran….

I know it scares me.

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