Does Bragg believe he has a Felony case regarding the Stormy Daniels NDA against Trump?
Obviously there is a big hump to get from an indictment to actual charges and then from charges to an actual conviction in a trial. But regardless of all that, the DA appears to believe (or is leading people to believe) that he can get the indictment.
Now make no mistake. Getting an indictment is the easy part. After that Bragg will have to wrestle with the courts over what appears to be a murky loosely tied together plan to turn misdemeanor bookkeeping charges into a felony. The only way this can be done in New York would be to prove that the bookkeeping issues were in fact covering up another crime.
Legal experts from across the board are questioning that logic and are mostly "guessing" at what will be used to make this leap. But the best guess is that the prosecution will argue that the way Trump (and the organization) originally recorded the NDA was criminal because it used pseudonyms to hide the names of the parties involved. Then the manner in which they paid Cohen for his services (tying the NDA reimbursement to other legal fees) was the crime that was covering up the previous crime. If that seems like the same issue being separated into two by some form of dishonest semantics, then you are not alone. That seems to be a prevailing opinion of many.
Others (such as former Federal Prosecutor Andrew McCarthy) suggest that the original NDA was not even illegal and that the use of pseudonyms and such were to cover up personal embarrassment rather than covering up something criminal. NDA are not criminal in nature and there is nothing in the law that requires anyone to disclose anything specific about them. NDA are actually considered legal expenses so recording it as such should not be seen as criminal. McCarthy calls the concept of the NDA being criminal to be "dubious" which is about as hard core as McCarthy gets.
Update: The latest buzz on the "first" crime is supposedly that Trump violated New York Campaign Finance laws by not reporting it as a campaign expense. This (of course) was debated previously and determined not to be a crime.
The main trouble with this argument is that the law is clear that you cannot claim something as a campaign expense (and have your campaign pay for it) if whatever it is you are paying for benefits the candidate personally. If it jointly benefits the campaign and the person, then it still need to be paid for privately. It would be a better criminal argument if campaign finances were used to pay for a NDA (that benefitted Trump personally) and was then hidden through funny bookkeeping practices. But in this case, Trump paid for it personally and therefor he would not be required to disclose it as a campaign expense.
So why does the NY DA need to tie two crimes together to bump this up to a felony? Well that is not just for show because he wants bigger charges for the former President. He cannot charge Trump with a misdemeanor because the Statute of Limitations on misdemeanors is two years. This all took place in 2016-2017. So he must prove that the were two separate and distinct criminal acts and that the the second was committed to cover up for the first.
On top of that, the payments to Cohen all took place in 2017, meaning there is another argument that even a felony is past the five year statute of limitations. According to McCarthy and others, they believe that prosecution is going to argue that they entered some of the bookkeeping in 2018 that could extend that statute beyond the end of 2017. But while Trump signed these checks personally in 2017 putting him on the hook for those, one would have to also show that Trump was personally involved in any of the 2018 bookkeeping to really make that Statute of limitation bump work.
So here is my take. I could be entirely wrong, but hear me out.
Bragg (the New York DA) doesn't have all the elements of the case at this point (even by his own dubious standards of said crime). What he is probably missing is Trump's involvement in the bookkeeping itself. Having him sign the checks is important but that took place in 2017, which is beyond five years and it does not prove he was involved in any bookkeeping crimes. So proving he knew about, approved, or even ordered some form of criminal bookkeeping would be necessary for this to stick. There is obviously a reason why Bragg has been pressuring Weisselberg so hard to "turn" on Trump. Could it be that he needs someone to say that Trump was involved in whatever bookkeeping took place? That seems to make the most sense.
But Bragg is also running out of time. He has likely decided to go ahead with an indictment even if he is not sure he can make the case. He would then hope that he can put something together between the indictment and any trial. Worse case scenario, Trump gets his case dismissed by a Judge and Bragg gets up on the soapbox and declares it all unfair.
Why does this make sense to me? Well because none of the facts of this has changed and there has been no known "turning on Trump" by Weisselberg or anyone else. All of this happened years ago and this is the second of two investigations. If the charges were easy to make, then they could have pushed for this indictment the first time. If they were any easier the second time around, then they would have made them months ago.
The "only" thing different is that we are approaching the drop dead date for their theory of extended statute of limitations. If they let that pass, then they lose their chance to make the media splash of indicting Trump. This would make the liberal base of New York absolutely livid and Bragg turns from potential hero into someone for them to scorn.
What political choice does he have?
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