Why the hush money case against Donald Trump is on shaky ground

The Manhattan district attorney’s case against former President Donald Trump aptly illustrates the prescient warning that Supreme Court Justice Robert Jackson issued in 1940, about the real danger that a prosecutor may “Pick the people that he thinks he should get, rather than pick the cases that need to be prosecuted.”

Now that the trial of Donald Trump is underway, it is clear that District Attorney Alvin Bragg, in his zeal to exact political revenge against a preselected target, has ignored a panoply of evidentiary matters that severely undermine the credibility of this prosecution.

First, the doubling of the amount paid to Michael Cohen in order to cover the taxes in the transaction is a significant fact that sheds light on Trump’s state of mind. This is powerful evidence that Trump was attempting to comply with the law and did not have the requisite criminal intent.

It is also evidence that Trump could reasonably rely on the fact that Cohen was structuring the transaction properly. If one’s counsel is fastidious enough to ensure compliance with tax statutes, it is reasonable to assume that he has also vetted the propriety of the totality of the transaction. Trump’s only misstep here may have been relying on incompetent counsel who couldn’t structure a simple settlement agreement.

Second, the district attorney’s statement of facts glosses over the fact that the payments in question also included a bonus for Cohen. If the prosecution of a former president rests on the flimsy assumption that a settlement payment cannot be characterized as a “legal expenses” payment, how then are we to account for the bonus paid to Cohen? The bonus was likely for Cohen’s legal services in negotiating and effectuating the settlement. The entry on the ledger of legal expenses is therefore correct. 

And even if, arguendo, it is not complete, is it credible to believe that Donald Trump somehow should have been aware of the precise nomenclature that the accountants would use on the general ledger?

Third, the prosecution is predicated on the notion that it was a crime to withhold damaging information from the American public before the election. Setting aside that all political campaigns by their very nature attempt to minimize potentially negative information, the allegations about Trump and Daniels were already in the public domain anyway, as they had been mentioned in a 2007 radio interview and had been published in a 2011 blog, The Dirty. In the parlance of insider trading, the information was already public.

For the mythical voters for whom the information about Daniels was material to their vote, they were certainly not unable to obtain it. Under Bragg’s convoluted theory, how were voters denied information that had already been made public a decade earlier? Was it Trump’s obligation to assist in publicizing what was arguably an extortion attempt?

Moreover, Bragg has asserted that Trump should have made this payment through campaign funds. But, of course, if he had made the payment with campaign funds, the Federal Election Commission would have cited Trump with the improper use of campaign funds. As the government learned in the prosecution of 2004 and 2008 Democratic presidential candidate John Edwards, just because a payment has the ancillary benefit of helping a campaign doesn’t render it a campaign expense.

Of course, Trump had very real personal and family reasons wholly distinct from his campaign to enter into a settlement agreement.

Bragg’s crusade also conveniently ignores that the campaign expense filing would not have been due until after the election. It ignores the fact that there are no victims in this matter and that Trump did not have any pecuniary gain. If Bragg adheres to his bizarre theory that the voters were victims by being denied information, then by definition there could not have been a single “victim” in New York state, as it was a foregone conclusion that Hillary Clinton would win New York’s electoral votes.

Similarly, Bragg’s ludicrous reliance on Cohen’s guilty plea to federal election charges cannot have evidentiary value with respect to Trump. The fact that one party is pressured by prosecutors to plead guilty to a federal crime cannot be used to blithely assert against another party that such a crime was committed. Rather, it is evidence that either Cohen did not mount a proper defense or that he was too compromised with other allegations and that it was therefore in his personal interest to plead guilty.

Mark Pomeranz, who worked at the Manhattan district attorney’s office, described in his book, “People v. Donald Trump: An Inside Account,” that it was an “aggravating factor” in this case that Trump was running for president. To put it another way, the aggravating factor of being Donald Trump therefore bestows up prosecutors carte blanche to charge him with purported crimes that no one else has ever been charged with. Indeed, Justice Jackson’s famous admonition has come to fruition. A jury in Manhattan has now been seated, and a jury of 300 million Americans will render their verdict on Nov. 5.

George G. Demos is a former United States Securities and Exchange Commission enforcement attorney and an Adjunct Professor at U.C. Davis School of Law where he teaches corporate and white collar crime.