This is a first in more ways than one. Donald Trump is not only the first ex-president of the United States He is due to appear in Criminal Court on Tuesday, April 4. Alvin Bragg, a New York attorney accused of paying to cover up extramarital affairs before the 2016 election, is using a never-before-used legal argument to file a criminal case.
Alvin Bragg “created one of the most controversial and high-profile cases in American history on the most uncertain legal foundation”, American news analysis site Vox laments.
A petty crime?
The The charge sheet is based on 34 counts of falsification of professional documents – “Petty crimes under New York law,” underlines Mark Schall, a lawyer who worked in the New York attorney’s office.
The kind of crime that doesn’t cost Donald Trump dearly. “These offenses carry a maximum sentence of one year in prison, and courts generally do not impose a prison sentence in this type of case,” notes Christopher Phelps, an expert in the US at the University of Nottingham. “Attacking a former president for mundane minor offenses may seem a bit low,” says this expert.
Another New York law comes into effect later. It specifies that this “simple” crime can become more serious if it is “used to cover up another crime or a crime,” explains Stephen Dreyfuss, a New York lawyer and former prosecutor. He is also a former president of the International Lawyers Association (UIA). In this case, the law provides for a jail term of up to four years.
This is the purpose of Alvin Bragg. Elected in January 2022 to the position of Democratic Advocate, wants to accomplish by suing Donald Trump. This two-step construction—establishing damage, then proving it helped conceal a more serious crime—has never before been tested in American judicial history.
Look for the offense
The problem is knowing what crime Donald Trump was trying to cover up by creating false documents. “Alvin Bragg does not specify the basis of his action in the indictment. Tax – but it is as if he himself has not yet chosen”, Stephen Dreyfus underlines.
A very clear path regarding federal law regarding the financing of election campaigns. The $130,000 paid to Stormy Daniels by Donald Trump’s former lawyer Michael Cohen did not count as campaign spending, “even though it is arguable that she wanted to cover up a lawsuit that could hurt Donald Trump’s chances of winning the election,” the analysis finds. Mark Scholl.
This option is legally very risky. First, it is necessary to prove that Donald Trump intended to help his election campaign by paying this amount. “His intention was to prevent his wife and her family from learning of the existence of this extramarital affair,” underlines Christopher Phelps. Admittedly, “circumstantial evidence – payments made during the campaign and Michael Cohen’s testimony – may be sufficient”, underlines Mark Scholl. You still have to convince a jury.
Above all, one question agitates the small American legal world: Does New York law allow a judge in this state to consider a violation of federal law? “There is no provision in New York law on this point, and no clear opinion,” acknowledges Mark Schall. In other words: A judge can refuse to consider Donald Trump guilty of a crime because the facts don’t fall under New York law.
It was for this reason that Alvin Bragg invoked New York’s election law during the press conference. The latter prohibits the use of campaign funds to directly influence the outcome of an election. But here again there is a problem: does this text target the local ballot or does it also include the presidential election?
Jump into the unknown frame
Stephen Dreyfuss therefore believes that a third song “may be more promising”. In this case, there may actually be a tax claim: “If Alvin Bragg succeeds in proving that Donald Trump falsified documents to allow him to defraud New York tax authorities, to conceal the true reason for the payments to Michael Cohen, it would be a felony,” the lawyer sums up. A highly publicized case of cheating on star X would have given birth to a simple story of tax evasion.
So there is no dearth of hypotheses in this unprecedented law-based practice. This is the whole problem posed by Alvin Bragg’s approach: “American law is based on case law rather than French law, and there is no precedent in this area, which makes the decision very uncertain”, Stephen Dreyfus summarizes. The first criminal case against a former president is a real leap into the legal unknown. And it’s not going to lead to a verdict: “Defense lawyers will have the opportunity to mount appeals for the annulment and others, so that the actual trial won’t start for a year,” Christopher Phelps expects, before the next few months. Donald Trump is running for president…