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Vox: The dubious legal theory at the heart of the Trump indictment, explained
Link to articleThe actual felony counts arise out of allegedly false entries that Trump made in various business records in order to make the payment to Daniels appear to be ordinary legal expenses paid to Cohen.
But Bragg built his case on an exceedingly uncertain legal theory. Even if Trump did the things he’s accused of, it’s not clear Bragg can legally charge Trump for them, at least under the felony version of New York’s false records law.
As Mark Pomerantz, a former prosecutor in the Manhattan DA’s office who played a significant role in the Trump investigation prior to his resignation in 2022, wrote in a recent book, a key legal question that will determine whether Trump can be charged under the felony version of New York’s false records law has never been resolved by any appellate court in the state of New York.
The felony statute requires Bragg to prove that Trump falsified records to cover up a crime. Bragg has evidence that Trump acted to cover up a federal crime, but it is not clear that Bragg is allowed to point to a federal crime in order to charge Trump under the New York state law.
The answer to this “gnarly legal question,” as Pomerantz put it, is simply unknown. So there is a serious risk that a New York judge will toss out the charges against Trump on technical legal grounds unrelated to the former president’s actual conduct.
And even if Bragg’s legal team convinces New York’s own courts that this prosecution may move forward, there is also a very real danger that the Supreme Court of the United States, with its GOP-appointed supermajority, could decide that it needs to weigh in on whether Trump should be shielded from this prosecution.
But Bragg built his case on an exceedingly uncertain legal theory. Even if Trump did the things he’s accused of, it’s not clear Bragg can legally charge Trump for them, at least under the felony version of New York’s false records law.
As Mark Pomerantz, a former prosecutor in the Manhattan DA’s office who played a significant role in the Trump investigation prior to his resignation in 2022, wrote in a recent book, a key legal question that will determine whether Trump can be charged under the felony version of New York’s false records law has never been resolved by any appellate court in the state of New York.
The felony statute requires Bragg to prove that Trump falsified records to cover up a crime. Bragg has evidence that Trump acted to cover up a federal crime, but it is not clear that Bragg is allowed to point to a federal crime in order to charge Trump under the New York state law.
The answer to this “gnarly legal question,” as Pomerantz put it, is simply unknown. So there is a serious risk that a New York judge will toss out the charges against Trump on technical legal grounds unrelated to the former president’s actual conduct.
And even if Bragg’s legal team convinces New York’s own courts that this prosecution may move forward, there is also a very real danger that the Supreme Court of the United States, with its GOP-appointed supermajority, could decide that it needs to weigh in on whether Trump should be shielded from this prosecution.
This is a little worrisome, as it's from someone who is generally reasonable. I want the case against Trump to have clear precedent and evidence-- I worry that a case based on a legal theory that hasn't been tested before won't have public trust behind it.
Edited to add: This thread contains an opposing opinion that the case is strong and not unprecedented.
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