A risky legal gamble for Attorney General Alvin Bragg

This is the first of many ways. Not only did Donald Trump become the first former US president To appear on Tuesday, April 4, before a criminal court. Alvin Bragg, the New York attorney general who accuses him of “orchestrating” payments to cover up extramarital affairs before the 2016 election, is using a legal argument not previously used to bring a criminal case.

Alvin Bragg “built one of the most controversial and notorious cases in American history on the most uncertain legal foundation possible”, American news analysis site Vox regrets.

misdemeanor?

the The indictment is based on 34 cases of forgery of professional documents – “Minor crimes under New York law,” asserts Mark Scholl, a lawyer who worked for the New York Attorney General’s office.

A kind of insult that wouldn’t cost Donald Trump dearly. “These offenses carry a maximum penalty of one year in prison, and generally the courts do not impose a prison sentence in this type of case,” explains Christopher Phelps, a US specialist at the University of Nottingham. “Attacking a former president for minor offenses might sound a little low,” adds this expert.

Then another New York law goes into effect. It specifies that this “minor” crime can become more serious if “the forgery is used to cover up one or another crime,” explains Stephen Dreyfuss, a New York attorney and former attorney general who is also past president of the Paris-based Union Internationale des Avocats (UIA). In this case, the law provides for a penalty of up to four years in prison.

That’s the goal Alvin Bragg said, The Democratic attorney general was elected to office in January 2022, he wants to achieve by suing Donald Trump. And this two-step construction—establishing the absurd, then proving it served to cover up a more serious crime—has never been tested before in American judicial history.

Look for the crime

The problem is knowing the crime that Donald Trump wanted to hide by creating fake documents. Stephen Dreyfuss asserts that “Alvin Bragg doesn’t state the basis of his work in the indictment. Taxes – but it’s as if he hasn’t made a choice yet.”

Also read on France 24: Attorney General Alvin Bragg v. Donald Trump, Confronting the Americas

The most obvious path concerns federal campaign finance law. The $130,000 payment to Stormy Daniels by Michael Cohen, Donald Trump’s former attorney, did not count as campaign spending “even though he arguably wanted to cover up a case that could have diminished Donald Trump’s chances of winning the election,” Analytics by Mark Scholl.

Jumping to this option is also the most risky from a legal point of view. First, it would be necessary to prove that Donald Trump wanted to help his election campaign by paying this amount. Christopher Phelps asserts, “He can very well say that his intention was to prevent his wife and her family from learning of the existence of this marital affair.” Admittedly, “the circumstantial evidence – the fact that payment was made during the campaign and the testimony of Michael Cohen – may be sufficient,” Mark Scholl asserts. You still have to convince the jury.

Above all, it raises the question of the small American legal world: Does New York law allow a judge of this state to consider a violation of federal legislation? “There is no rule on this subject in New York law, and no clear opinion either,” Mark Scholl admits. In other words: A judge can refuse to consider that Donald Trump committed a crime simply because the facts are not subject to New York law.

That’s likely why New York election law enforcer Alvin Bragg gave the press conference. The latter prohibits the use of campaign funds to directly influence the outcome of an election. But here again, a problem remains: Does this text target the local ballot, or does it also cover presidential elections?

Jump into the legal unknown

Hence the third path “which could be promising,” Stephen Dreyfuss believes. In fact, this case may also have a tax component: “If Alvin Bragg could prove that Donald Trump falsified documents to hide the real reason for paying Michael Cohen in order to allow him to defraud New York tax authorities, that would be a crime,” this attorney sums up. A highly publicized scam case with Star X would generate a simple story of tax evasion.

So there is no shortage of hypotheses in this procedure, which has an unprecedented legal basis. And this is the whole problem posed by Alvin Bragg’s approach: “American law is more based on case law than French law, and there is no precedent in this area, which makes the result even more ambiguous,” sums up Stephen Dreyfuss. The first criminal case against a former president is a real leap into the legal unknown. Which is not about to lead to a verdict: “Defense lawyers will take the opportunity to multiply the motions for annulment and others, so that the real trial does not begin for a year,” predicts Christopher Phelps a few months before the next. Donald Trump’s presidential election…