Has Alvin Bragg Entered the Legal Danger Zone?

While it is tempting to focus on the biases of Manhattan District Attorney (DA) Alvin Bragg and Judge Juan Merchan as the so-called New York hush money case is litigated against former President Donald Trump, the better approach is to follow the facts of the case, and explain why the DA's case is wrong as a matter of law.

Former Federal Election Commission Chairman Brad Smith lays out a well reasoned explanation of why Bragg's theory of the case as it relates to campaign finance law is faulty in The Federalist:

Misreporting business expenses is normally, at most, a misdemeanor. Bragg seeks to ratchet it up to a felony here by arguing that the misreporting was done to cover up a crime. That alleged crime is a violation of the Federal Election Campaign Act (FECA). The theory is that Trump’s payments to Daniels were campaign expenditures and thus needed to be publicly reported as such. By not reporting the expenditure, the theory goes, Trump prevented the public from knowing information that might have influenced their votes. There is one big problem with this theory: The payments to Daniels were not campaign payments.


Herein lies the most frightening part of this prosecution: Had Trump made these payments with campaign funds, it seems a near certainty he would now be facing criminal charges for a knowing and willful diversion of campaign funds to pay personal obligations. If Bragg’s prosecution is successful, it will mean a candidate can use campaign funds to pay almost any obligation that, the candidate might argue, would benefit his candidacy. Perhaps worse, zealous prosecutors could get a candidate coming or going — falsification of records if campaign funds are not used, and illegal personal use if campaign funds are used.

An op-ed by Professor Jonathan Turley's in the New York Post also shred's Bragg's legal arguments:

First, [the falsification of business records charge] expired as a chargeable misdemeanor after two years — and that was roughly five years ago.

Second, it was a mere misdemeanor that could be brushed off by Trump even if they succeeded.

Prosecutors then created a Rube Goldberg approach and suggested that the misdemeanor was committed to conceal a federal election law violation — a crime that the Justice Department declined to charge.

That theory has been widely ridiculed, even by many on the left. The bootstrapping of a federal crime under this statute appears unprecedented and likely unsustainable.

Noted political law expert and longtime RNLA leader Elliot Berke told RNLA members a year ago that Bragg's politically motivated case against Trump entered the legal "danger zone."

Bragg resurrected a so-called "zombie" case against President Trump using a fringe, untested legal theory. When prosecutors use legal jujitsu to bring a case, they often appear political, which Bragg does. Still, as Smith writes in The Federalist, Trump "has a defense on the merits, and his supporters should use it."