George Washington University Law School professor Jonathan Turley described Manhattan District Attorney Alvin Bragg’s prosecution of former President Donald Trump as a “Frankenstein case” based on resurrected alleged misdemeanor business record violations.
Bragg indicted Trump last spring on 34 counts of falsifying business records in the first degree, taking what are normally misdemeanor violations and making them felonies, because the DA alleges that Trump was seeking to hide an underlying crime.
The felony charges allowed Bragg to extend the statute of limitations from two years to six.
But Bragg has not been entirely clear what the underlying crime is; although he suggested when he announced the charges, it had to do with a reported $130,000 in payments made to porn star Stormy Daniel ahead of the 2016 presidential election.
Trump is said to have paid Daniels through his personal attorney Michael Cohen as part of a nondisclosure agreement regarding an alleged sexual encounter they had in 2006.
On Fox News on Monday, host John Roberts asked Turley what would be criminal about Trump paying Daniels as part of a nondisclosure agreement, noting such contracts happen all the time.
“This is a Frankenstein case,” Turley responded. “They took a dead misdemeanor. They attached it to a dead alleged federal felony and zapped it back into life.”
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“So many of us are just amazed to watch this actually walk into court because it’s not a recognizable crime that any of us have seen,” he added.
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Turley explained that the payment to Daniels does not appear to be a federal crime.
At most, the business record violations would be state misdemeanors with a two-year statute of limitations, and Cohen was allegedly reimbursed in 2017, putting the records far outside the window of criminal liability.
“Then what Bragg said was, ‘Well, I’m going to allege that you did false filings on business records to hide a crime,’ but he was very ambiguous what that crime might be. He still is ambiguous, but it is assumed to be a federal election crime,” Turley said.
Jonathan Turley: “In this case, you’re taking this misdemeanor, reviving it because it was dead, suggesting a crime that doesn’t exist and then hitting Trump with dozens of counts. Most citizens…see that for what it is: it’s the weaponization of the criminal justice system.” pic.twitter.com/kMkFZHiStI
— MAGA War Room (@MAGAIncWarRoom) April 15, 2024
The theory is that Cohen was making an in-kind contribution to the Trump campaign in excess of federal campaign limits.
“The problem is the federal government doesn’t view it as a crime. They decided not to prosecute, and most election experts say that this is the type of thing that’s failed in the past,” Turley noted.
The $130,000 didn’t go to, nor did the alleged reimbursement come from, Trump’s presidential campaign. Further Trump could have had other reasons he didn’t want Daniels’ allegation made public besides whatever impact it may have had on his candidacy.
Prior to Bragg’s indictment, federal prosecutors and the Federal Election Commission had already reviewed the payments to Daniels and declined to charge Trump.
Turley and other legal experts contend the way Trump may win the case is by a provision in New York law that allows the defendant’s attorneys to ask the judge to instruct the jury that they may convict their client on lesser offenses.
In Trump’s trial, it would be the misdemeanor crime of falsifying records.
Former federal prosecutor Andy McCarthy argued in a Monday piece for National Review, “If the jury were to acquit Trump of the greater felony offense but find him guilty of the misdemeanor, I believe any convictions would have to be thrown out because the statute of limitations on the misdemeanor has lapsed.”
Fellow former prosecutor Ankush Khardori also made an argument in Politico that Trump’s best move would be the misdemeanor jury instruction route.
Khardori quoted an unnamed source familiar with Trump’s legal strategy indicating that is certainly something his attorneys are weighing.
“‘Now, obviously he doesn’t want’ to be convicted at all, the person familiar with Trump’s legal strategy said, ‘but a misdemeanor conviction in state court in Manhattan is going to have absolutely no effect on this guy’s ability to run for office or on his liberty.’”
