The Washington Post

Experts: Prosecutin­g Trump for Stormy Daniels money may include hurdles

Michael Cohen’s testimony might be key to charges, analysts say


Manhattan District Attorney Alvin Bragg’s investigat­ion into Donald Trump’s payment to an alleged mistress in 2016 appears to be wrapping up, but legal experts say it remains unclear what a criminal case against the former president would look like.

The district attorney could seek charges in coming days or weeks from a grand jury that heard testimony Monday afternoon from Michael Cohen, a former Trump confidant, who spent about three hours there and is expected to resume on Wednesday.

Cohen paid $130,000 to adultfilm actress Stormy Daniels in 2016 with the goal of keeping her from publicly claiming she had an affair with Trump years earlier. Bragg (D) is examining whether Trump broke campaign finance laws by using what appeared to be routine legal fees to reimburse Cohen the money he paid to Daniels. Trump denies the affair and maintains that Daniels was an opportunis­t shaking him down because of his stature and his vulnerabil­ity as a presidenti­al candidate.

If Bragg seeks to charge the former president — a move that appears likely based on his recent invitation to Trump to appear before a grand jury — he will face several potential hurdles, legal analysts say. It would be unusual for a state prosecutor to use an alleged violation of a federal law, rather than of a state campaign finance law, as grounds to elevate a false-paperwork case from a misdemeano­r to a felony. But it would also be unusual to prosecute a presidenti­al candidate for violating state — as opposed to federal — campaign finance law.

“If there’s an indictment, I look forward to seeing how DA Bragg has crafted his allegation­s,” said Jerry H. Goldfeder, a veteran election lawyer based in New York. “What appears to be untested is a state prosecutor hanging his hat on a state-law crime to prosecute a federal candidate.”

Either way, Bragg probably would have to rely at least somewhat on testimony from Cohen, an avowed Trump critic who served time in prison for the Stormy Daniels payments, tax evasion and lying to Congress about plans to build a Trump property in Russia. Trump’s defense lawyers would be likely to use those facts to undermine Cohen’s credibilit­y before a jury.

Outside the city building where Cohen testified Monday, he told reporters that his participat­ion in the case was not about “revenge” for him. Rather, he said, Trump should be “held accountabl­e for his dirty deeds.”

No former president has ever been indicted for a crime, though many political candidates and other officehold­ers have been charged and convicted of crimes — and for some it has not derailed their political careers. Trump, who lost his bid for reelection in 2020, is seeking the White House again in 2024.

Bragg has given Trump until Thursday to say whether he wants to appear in front of the grand jury — an opportunit­y available to targets of an investigat­ion in state court in New York if that person’s attorney knows about a grand jury and notifies the district attorney that they want to be invited.

Legal experts have said that extending the grand jury invitation to a potential defendant is typically the last thing that happens in a grand jury probe. It is considered very risky for any defendant to testify in a grand jury proceeding.

“Alvin Bragg, through his actions, is clearly signaling that he’s at the one-yard line to indict Trump,” said Karen Friedman-agnifilo, who served as chief assistant district attorney under Bragg’s predecesso­r, Cyrus R. Vance Jr. (D).

Under Vance, the Daniels case was tabled and referenced internally by some as the “zombie case,” an apparent reference to its lifeless state. Prosecutor­s instead brought a tax-fraud case against the Trump Organizati­on, the former president’s family business, which resulted in a conviction in December of the company. Longtime Trump Organizati­on chief financial officer Allen Weisselber­g was also indicted and pleaded guilty.

After the tax indictment was filed, Vance’s team pivoted to investigat­e whether Trump and his company illegally misled lenders and insurance companies by inflating asset values to obtain better rates, while reducing his tax liability by deflating those values. Neither Vance nor Bragg sought a grand jury indictment on those allegation­s. But New York Attorney General Letitia James (D) filed a $250 million civil lawsuit last year against Trump, his family and the Trump Organizati­on based on them.

Any charges that Bragg may seek in the Daniels matter would be relatively low-level. He could ask for an indictment on a felony charge of falsifying business records, which requires allegedly erroneous paperwork to have been created in the course of covering up or committing another crime.

Trump is separately under criminal investigat­ion by the Justice Department for his handling of highly classified material at Mar-a-lago, his Florida home and private club, after leaving the White House; and by the Justice Department and the district attorney in Fulton County, Ga., over his efforts to block President Biden’s 2020 election victory.

In the New York investigat­ion, Cohen’s attorney, Lanny Davis, said the investigat­ion of his client’s payments to Daniels by Trump’s own Justice Department five years ago would lay the foundation for any case Bragg might choose to bring against the former president.

Documents filed by federal prosecutor­s in Cohen’s case referenced him paying Daniels at Trump’s direction. Trump was not charged in that case, but his alleged role was establishe­d in the court record. The Justice Department has a long-standing policy of not charging a sitting president, and the U.S. attorney’s office in Manhattan did not appear to revisit the case after Trump left office.

Although Cohen’s plea was based on an admission that campaign laws were violated, the issue of whether the payment to Daniels amounted to a donation was never litigated. Trump has said he was the victim of extortion and could argue at trial that the payment to her cannot be construed as a donation.

Prosecutor­s would also have the burden of proving Trump intended to violate election law, which would probably mean showing Trump was personally knowledgea­ble about the rules. Election laws are complex, and candidates generally rely on attorneys well-versed in campaign finance matters.

The former president could also use a newly published book by a former prosecutor in Bragg’s office to undercut any indictment related to Daniels. Mark Pomerantz, who quit the district attorney’s office last year in protest of Bragg’s decision not to seek a fraud indictment based on asset valuation, includes in the book internal deliberati­ons about not pursuing charges against Trump related to Daniels.

Joe Tacopina, an attorney for Trump, cited the book in a letter sent to New York City’s Department of Investigat­ion on Friday that accuses Bragg of prosecutor­ial misconduct and asks for his office to be investigat­ed. The letter argues that the animus Pomerantz says he felt toward Trump, and his extensive criticism of the former president, prove that the district attorney’s investigat­ion is nothing more than “a patently political prosecutio­n, at the unwarrante­d expense of this city.”

 ?? Yuki IWAMURA/AP ?? Michael Cohen talks to reporters as he arrives to testify before a grand jury in New York. Cohen spoke to the jury for three hours Monday and is expected to return for more testimony Wednesday.
Yuki IWAMURA/AP Michael Cohen talks to reporters as he arrives to testify before a grand jury in New York. Cohen spoke to the jury for three hours Monday and is expected to return for more testimony Wednesday.

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