George Washington University law professor Jonathan Turley blasted the “made-for-TV Trump prosecution,” calling the case by Manhattan District Attorney Alvin Bragg’s office “legally pathetic.”
In an opinion piece published in The Hill, Turley reminded readers that the “hush money” case against the 45th president was already rejected by the Department of Justice and even Bragg himself essentially shut it down when he took office.
Although it may be politically popular, the case is legally pathetic. Bragg is struggling to twist state laws to effectively prosecute a federal case long ago rejected by the Justice Department against Trump over his payment of “hush money” to former stripper Stormy Daniels. In 2018 (yes, that is how long this theory has been around), I wrote how difficult such a federal case would be under existing election laws. Now, six years later, the same theory may be shoehorned into a state claim.
It is extremely difficult to show that paying money to cover up an embarrassing affair was done for election purposes as opposed to an array of obvious other reasons, from protecting a celebrity’s reputation to preserving a marriage.
In this case, Trump reportedly paid Daniels $130,000 in the fall of 2016 to cut off or at least reduce any public scandal. The Southern District of New York’s U.S. Attorney’s office had no love lost for Trump, pursuing him and his associates in myriad investigations, but it ultimately rejected a prosecution based on the election law violations. It was not alone: The Federal Election Commission chair also expressed doubts about the theory. (The Hill)
The state charges in the expected indictment are still unknown, but Turley suspects they would “fall under Section 175 for falsifying business records," which is typically a misdemeanor. Turning it into a Class E felony "requires a showing that the 'intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.' That other crime would appear to be the federal election violations which the Justice Department previously declined to charge," Turley said.
The linkage to a federal offense is critical for another reason: Bragg’s office ran out of time to prosecute this as a misdemeanor years ago; the statute of limitations is two years. Even if he shows this is a viable felony charge, the longer five-year limitation could be hard to establish.
However, all the legal problems with the case won't matter in the "coming frenzy," he argued. "The season opener of 'America’s Got Trump' might be a guaranteed hit with its New York audience — but it should be a flop as a prosecution."
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