The case against Trump: A porn star, a conspiracy, a payoff, a cover-up

Donald Trump feared that porn star Stormy Daniels could damage his presidential candidacy in 2016 by discussing their alleged sexual encounter some years earlier. So he conspired to illegally influence the 2016 election by falsifying business records of the hush-money payments made to Daniels by way of attorney Michael Cohen. Or at least that's the theory that New York prosecutors laid out Tuesday in charging the former president with 34 counts of felony fraud. Those charges, originally filed last Thursday by Manhattan District Attorney Alvin Bragg under sealed indictment, have sparked a frenzy of speculation and conflicting opinions among legal experts — as did the more telling statement of facts Bragg filed. (Trump, for the record, has pleaded not guilty.)

At a press conference following Trump's arraignment, Bragg's allegations against Trump went beyond the well-known details of the Daniels payoff. They included a similar $150,000 hush-money payment to another woman, and $30,000 paid to a Trump Tower doorman who supposedly knew about an alleged illegitimate child of Trump's. (Bragg's allegations do not rest on whether or not any of these salacious rumors have any merit.) Bragg further alleged that Trump engaged in a "catch and kill" agreement with National Enquirer publisher David Pecker, under which Pecker would pay for the rights to potentially damaging stories about Trump but never publish them.  

Because Trump used his business records to conceal those payments, Bragg alleges, the case amounts to conspiracy, tax fraud and violations of state campaign finance laws. But those specific charges do not appear in the indictment. Rather, the Manhattan grand jury was convinced by the evidence it heard to elevate the charges to felonies. Normally, falsifying business records would be a misdemeanor charge unless it was part of an attempt to cover up another crime. That makes it a case of Class E felony fraud, which is what Bragg is alleging. Class E felonies carry a potential five-year prison sentence in New York, and Donald J. Trump faces 34 of them. (In the real world, the likelihood of significant prison time for low-level nonviolent felony offenses is very small.) 

More information about the charges is expected to emerge in coming days. New York Supreme Court Justice Juan Merchan has given Bragg 15 days to hand over his office's evidence. Prosecutors are reportedly worried, however, that Trump will post discovery evidence online before that time, perhaps in an effort to disrupt the proceedings. 

Trump's defense team tried to put those worries to rest Tuesday, as captured by the Washington Post's J.M. Rieger. 

Trump attorney Joe Tacopina previously said he did not expect the judge to impose a gag order on Trump, and told Savannah Guthrie of "Today" that if the case actually goes to trial Trump will not accept a plea deal. Tacopina continued to command much of the spotlight Tuesday in televised appearances and impromptu press conferences, but the Trump team may be divided about him. 

"I know Joe has certain potential conflict issues given his prior contact with Stormy Daniels," Trump attorney Tim Parlatore told CNN's Kaitlan Collins. 

In any event, Trump's defense team now has 45 days to file preliminary motions — such as an apparent request to move the proceedings to another jurisdiction, such as Republican-friendly Staten Island. 

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Legal analysts on the right, unsurprisingly, have largely denounced Bragg's charges. But others have expressed caution as well; these charges rest on an untested legal theory that will rely heavily on Merchan's discretion. 

"I think it will be difficult to prevail on the felonies," Cornell Law professor Randy Zelin told CBS News on Tuesday. "The falsifying of entries misdemeanor — that's a slam dunk." 

The Nation's Elie Mystal has repeatedly raised the question of whether the statute of limitations has expired for some of these alleged crimes, even while expressing confidence that Bragg's case "is strong, and, it would appear, is backed up by ample documentary evidence."

"As class E felonies, all the counts in the indictment must be brought within five years of the act. Bragg largely describes criminal bookkeeping that took place in 2017, but the statement of facts details all of the measures Trump took in 2018 to delay and obstruct an investigation into those false records, including ordering his former lawyer Michael Cohen to lie about it," Mystal wrote in a Tuesday analysis.  

"That delay could convince a judge that the statute of limitations was tolled (which means paused) while Trump was obstructing the investigation. Another wrinkle is that Governor Andrew Cuomo paused the statute of limitations in New York for 228 days during the Covid pandemic. It's possible that under this theory, Bragg has just enough time to bring 2023 charges six years after 2017 crimes."

In an interview with USA Today, however, seasoned tax prosecutor and 30-year Justice Department lawyer Gene Rossi read between the lines of the indictment and said he believed Bragg's case was stronger than it seemed on its surface. 

"When you have documents that are blatantly false, and apparently you have that here, and you have witnesses that corroborate each other, that combination is very powerful for a jury," Rossi said. 

"That's a bold allegation. And if it's proven, it has a lot of jury appeal," he added. "Because remember this: Al Capone dodged a lot of crimes, but he couldn't dodge tax crimes. And he served eight years for it."

Given the amount of legal theory resting on Merchan's gavel, it's clearly relevant that this isn't his first Trump rodeo. Merchan has presided over two previous cases where the CEO and CFO of Trump's real estate company were found guilty of criminal tax fraud. 

Trump, meanwhile, has taken to attacking Merchan online, which any respectable defense attorney would view as unwise. 

"The Judge 'assigned' to my Witch Hunt Case, a 'Case' that has NEVER BEEN CHARGED BEFORE, HATES ME," Trump claimed in recent Truth Social posts. 

In another, he went on to call Merchan a "Trump Hating Judge, hand selected by the Soros backed D.A."

Trump's team, and many of his Republican political allies in office, have unleashed a torrent of social media backlash against Bragg, accusing him of blatant overreach and political persecution. 

But in fact Trump enjoyed privileges not typically afforded to other felony defendants in New York. He was escorted to and from the arraignment in a presidential-style motorcade supervised by Secret Service agents, was not handcuffed and got to skip the otherwise mandatory mugshot.    

"Republicans want you to believe our legal system is targeting Trump," Rep. Cori Bush, D-Mo., tweeted Tuesday. "But at every step of this process, we're reminded that the rich and powerful are treated better than the Black & brown communities who are actually targeted by the criminal legal system."

Trump's next expected court date in this case won't be until December, and it's not clear whether he will have to appear in person.