In Trump case, Bragg pursues rarely used strategy
Charge can be a felony over a second crime
NEW YORK — A lawyer was accused of stealing $1.2 million from his law firm and covering it up. An insurance broker was accused of taking $350,000 from a client and covering it up. And a former president was accused of orchestrating a $130,000 hushmoney payment to a porn star and covering it up.
All three men were prosecuted by Manhattan District Attorney Alvin Bragg and each faced the same felony charge: falsifying business records.
The charge, a staple of his office’s white-collar work, can only be elevated from a misdemeanor to a felony if the defendant falsified the records in an attempt to commit or conceal a second crime.
Although the district attorney’s office is not required to identify the second crime at the outset of the case, Bragg prosecuted both the lawyer and the insurance broker for additional crimes — including grand larceny — telegraphing why their false records charges were bumped up to felonies. Only the former president, Donald Trump, was indicted for falsifying business records, and no other crimes.
A New York Times analysis of about 30 false business records cases brought by Bragg and his predecessor — based on court records, interviews, and information the office provided — shows that in this respect, the case against Trump stands apart. In all but two of the indictments reviewed by the Times, the defendant was charged with an additional crime on top of the false records charge.
The decision to charge Trump with 34 counts of falsifying business records — and no other crimes — highlights the unique nature of the case, the first indictment of a former US president. Bragg, a Democrat, has drawn criticism from Trump’s allies, who say that he bumped up the charges to a felony for political reasons.
But Bragg has argued that if the Trump indictment is unusual, it is only because the facts of this case are unusual as well, and the charge must fit the facts: Trump is accused of covering up a payoff to a porn star to bury a sex scandal in the days before a presidential election.
Bragg also said, at a news conference on the day of Trump’s arraignment, that an option for the second crime could be a federal election law violation, under the theory that the hush money illegally aided Trump’s candidacy.
And on Thursday, Trump’s lawyers sought to move the case from New York state Supreme Court to federal court, citing those comments as part of the justification for the legal change of scenery. The former president’s lawyers may in part be using the request to move the case as a way to gain more clarity on the second crime.
Bragg’s supporters, including former prosecutors with the district attorney’s office, have defended his decision not to explicitly mention the second crime in the indictment. They noted that even in the many cases where other crimes are charged, the district attorney’s office never specifies upfront which crime is being used to elevate the false records charge to a felony. In that sense, the Trump case is typical.
“The indictment doesn’t specify it because the law does not so require,” Bragg said, in his usual lawyerly fashion, at his news conference.
The somewhat unusual nature of the Trump indictment in some ways encapsulated both Bragg’s skills and shortcomings as district attorney. A career prosecutor, Bragg has a keen eye for legal strategy but something of a blind spot for the way his decisions are perceived by the public.
His maneuvering on the second crime could provide his prosecutors a strategic advantage in the courtroom, as he keeps Trump’s lawyers guessing about what it will be. If Trump’s lawyers convince the judge in the case, Juan M. Merchan, that an election law violation is not viable, Bragg can pivot to another, like a quarterback calling an audible.
“You’re not in the defendant’s head, so you have to be careful locking yourself into any one thing,” said Karen Friedman Agnifilo, one of the leaders of the office under Bragg’s predecessor. “And if you don’t have to, why do that?”
MANHATTAN DA
The charge of falsifying business records is a staple of Alvin Bragg’s office’s white-collar work.