Ahead of Potential Trump Indictment Manhattan DA Faces Questions Over ‘Tenuous and Untested’ Legal Theory
Ahead of Potential Trump Indictment Manhattan DA Faces Questions Over ‘Tenuous and Untested’ Legal Theory

By Janice Hisle

America’s 45th president, Donald Trump, appears poised to become the nation’s first president to be indicted on criminal charges. Such a prosecution could have grave consequences for the nation’s justice system and the democratic election process, scholars and political leaders say.

After leaked information about the secret grand jury process made its way into news reports, talk of Trump’s impending indictment in New York ramped up last week. On March 18, Trump acknowledged that he expected to be indicted and arrested on March 21.

It was unclear whether the expected indictment could be delayed or changed after a new witness, attorney Robert Costello, came forward and testified to the grand jury on March 20. Costello raised concerns about the credibility and honesty of Michael Cohen, a former Trump attorney, who testified to the Manhattan grand jury on March 15 and is considered a key witness against Trump. Costello, Cohen’s former legal adviser, obtained an attorney-client privilege waiver from Cohen.

Even before any official criminal action has been taken against Trump, the prospect of an indictment has plunged Trump and the nation into uncharted waters as the world watches.

Bracing for Impact

Law enforcement officials erected barricades in Manhattan on March 20, preparing for possible protests, as Republican Congressional leaders chastised New York County District Attorney (D.A.) Alvin Bragg Jr., a Democrat, for pursuing charges against Trump.

An indictment of Trump would “erode confidence in the evenhanded application of justice and unalterably interfere in the course of the 2024 presidential election,” a letter from a trio of Congressional leaders said.

Trump, the frontrunner for the Republican presidential nomination, insists that like all the previous Democrat attempts to charge him with a crime, there is no crime here. He fired off a barrage of statements railing against the latest “witch hunt” targeting him; his supporters point to Democrat politicians who have evaded accountability for serious allegations of wrongdoing.

Meanwhile, Trump’s foes are salivating at the thought of seeing the former president indicted in a tawdry scandal.

Adult film star Stormy Daniels wrote a book, Full Disclosure, which describes her alleged affair with Donald Trump before he was elected president, pictured for sale at a Barnes & Noble store on Oct. 2, 2018, in Chicago, Ill. (Scott Olson/Getty Images)

During Trump’s successful 2016 presidential campaign, Cohen paid $130,000 in “hush money” to a lawyer representing Stormy Daniels. She is an adult film star who claimed she had an affair with Trump in 2006. Trump, who denies the affair, has faced scrutiny over the alleged misclassification of the Daniels payment in his business records.

Such payments are commonly made when famous people execute non-disclosure agreements with accusers to protect their reputations.

Legal scholars say laws are being twisted to turn such a scenario into a crime. Republican lawmakers, and others, including fellow Republican presidential hopeful Vivek Ramaswamy, worry the case could have a seismic impact on American democracy. Another potential Republican contender, Florida Gov. Ron DeSantis, denounced the impending prosecution as an example of “weaponizing” a prosecutor’s office.

Ex-Prosecutor Weighs In

Michael Bachner, a New York defense lawyer and former Manhattan prosecutor, told The Epoch Times that he sees two main opposing arguments about the possible prosecution of Trump.

Some see the pending case as an abuse of prosecutorial discretion, a waste of resources, and an inappropriate influence on the 2024 presidential campaign.

But, Bachner said, others may assert: “The law should apply to everybody, no matter who you are…Then the argument goes: Why shouldn’t you be charged just because you ran for president? Or you were the president?”

Former President Donald Trump addresses the annual Conservative Political Action Conference (CPAC) at Gaylord National Resort & Convention Center in National Harbor, Maryland, on March 4, 2023. (Alex Wong/Getty Images)

Bachner said that if Richard Nixon had been president in today’s political landscape instead of the one that existed in the 1970s, Nixon would have been indicted in the Watergate scandal.

Instead, under pressure from his fellow Republicans, Nixon resigned because of his administration’s role in the break-in of the Democrat party’s national headquarters in Washington, D.C.

“The times we live in always impact the perceptions that we have,” Bachner said.

Bachner, who worked for the Manhattan District Attorney’s Office in the 1980s, points out that “prosecutors have discretion on whether or not they want to bring charges,” even when they believe they have enough evidence to support a conviction.

“There’s an old line we used when I was a prosecutor: Just because you can bring an indictment doesn’t mean you should,” Bachner said.

He said certain circumstances could make prosecution seem particularly unfair or unwise. But this time, Bragg apparently “came to a different conclusion with Trump, it appears.”

Reviving Dead Prosecution

Bragg, who became D.A. in January 2022, decided against prosecuting Trump for financial improprieties last year, drawing criticism and staff resignations in protest, Bachner noted.

Bachner thinks something has changed, and Bragg must now believe that he has sufficient evidence against Trump, or he would not be proceeding.

But the leaders of three powerful Congressional committees interpret Bragg’s actions differently. They think that Bragg seems to be bowing to critics’ pressure. The impending prosecution appears to be “motivated by political calculations,” according to a letter that U.S. Reps. Jim Jordan, Bryan Steil, and James Comer sent to Bragg on March 20.

“The legal theory underlying your reported prosecution appears to be tenuous and untested,” the letter tells Bragg.

Prof. Jonathan Turley listens during a House Judiciary Committee hearing on the impeachment inquiry against President Donald Trump in the Longworth House Office Building on Capitol Hill in Washington on Dec. 4, 2019. (Brendan Smialowski/AFP via Getty Images)

In a series of tweets, George Washington University Law Professor Jonathan Turley denounced the legal insufficiency of the impending prosecution.

“Bragg’s indictment is Frankensteinian in its effort to assemble parts of the federal and state codes to reanimate a dead criminal theory,” Turley wrote.

“It is the ultimate gravedigger charge, where Bragg unearthed a case from 2016 and, through a series of novel steps, is seeking to bring it back to life.”

Facts Known For Years

Bragg’s office has not publicly acknowledged what charge or charges are being considered. But based on publicly available facts about the Trump-Daniels payment, legal experts have offered their educated guesses about what accusations Trump might face.

An offense that could apply to Trump’s situation, known as “falsifying business records,” is a misdemeanor that must be prosecuted within two years of the alleged crime. But state law “allows a district attorney to ‘elevate nominal misdemeanor conduct’ to a felony charge if the ‘intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof,’” the Congressional letter says.

Under that approach, the statute of limitations would be five years.

Bachner said the “clock” on that five-year limit “would begin to run on the date of the filing of the document” in Trump’s business records.

“So it depends on when that was done,” Bachner said. “The D.A.’s office is sufficiently sophisticated that it would be mind-boggling” if the office brought a case outside the statutory limit, Bachner said. He said such an attempt would be “tossed out” by a court immediately.

Manhattan District Attorney Alvin Bragg in New York City on Jan. 13, 2023. (Michael M. Santiago/Getty Images)

The letter to Bragg says the five-year time limit “would likely expire soon,” explaining his alleged “rush to indictment.”

“This indictment comes after years of your office searching for a basis—any basis—on which to bring charges, ultimately settling on a novel legal theory untested anywhere in the country and one that federal authorities declined to pursue,” the letter says.

The New York County D.A.’s Office has been investigating Trump since at least 2018, “looking for some legal theory on which to bring charges.”

“The facts of this matter have not changed since 2018, and no new witnesses have emerged,” the letter says. The Justice Department declined to pursue charges in 2019. Yet, news reports indicated that Bragg’s office convened a new grand jury in January to investigate.

“The only intervening factor, it appears, was President Trump’s announcement that he would be a candidate for President in 2024,” the letter says. Trump announced his candidacy in November 2022.

In their letter to Bragg, the Congressmen are asking Bragg to provide documents and information from January 2017 to the present about the Trump investigation. They also requested that Bragg testify “as soon as possible” to Congress.

The letter says that Congress needs to examine how public safety funds are being used, considering Bragg’s decision to “pursue such a politically motivated prosecution,” while allowing “career criminals” to run free. Also, because Bragg decided to go forward with a case that federal authorities dropped, laws may need to specify the prosecutorial powers of federal and local officials and how they interact, the letter said.

The Epoch Times has sought comment from Bragg’s office.

Mugshot, Fingerprints Expected

If Trump is indicted, he likely would be allowed to surrender voluntarily, and his lawyer has publicly stated he would do so.

Bachner, whose law practice focuses mainly on white-collar crime cases, said people accused of financial crimes are customarily permitted to turn themselves in.

Afterward, Trump would have to go through the standard booking procedures, including having a mugshot and fingerprints taken. Given the level of security needed for a former president, it’s unclear how all that would be done.

Based on New York’s bail reform act, Trump would be freed pending trial, without having to post a bond, Bachner said.

While very complex white-collar-crime cases may take up to two years before going on trial, recently amended New York laws “require the prosecution to provide the defense with virtually all of their discovery within weeks of the arrest,” Bachner said. Therefore, Trump’s team could expect grand jury transcripts, emails, and bank statements very quickly.

Theoretically, a case against Trump could be ready for trial within six to eight months, which would mean it could hit before the 2024 election, Bachner said.

“Then the question becomes, does Trump want to delay it? Or does he want to be on trial while he’s running for office?” Bachner said. “And I think the answer is he’s probably going to want to delay it because if he gets elected, then the criminal case will go away. Certainly, a sitting president can’t go to jail.”

Defense Has Strong Arguments

If the case goes to trial, Trump would have strong arguments that can be made in his defense, Bachner said. Bachner said that the payment to Daniels could have been mistakenly entered into the wrong category, or there may have been valid, legal reasons for the way it was listed.

Trump has excellent attorneys in his corner, including Susan Necheles, whom Bachner knows. He called her “very tenacious, very smart.”

Bachner predicted that Cohen would be subjected to “a lot of target practice” from Trump’s lawyers. Cohen has many “credibility issues,” Bachner said. Cohen has made many anti-Trump public statements and admitted to several offenses, including lying to Congress. He spent time in prison and was disbarred.

One significant factor working against Trump: Jurors for any case against Trump in Bragg’s district would come from a Democrat-heavy jury pool, Bachner said. But he still thinks the jurors would make prosecutors prove their case.

Trump Cites Bragg’s History

In a series of posts on his Truth Social platform, Trump protested the absurdity of his current situation.

New York City Police “for the first and only time in history” endorsed a president–Trump–and honored him as “man of the year.” Yet, Trump said, New York police are forced to “defend and protect” people who called for defunding the police and others who “want to put their greatest champion and friend in prison for a crime that doesn’t exist.”

Also, in a preemptive strike, Trump’s campaign on March 20 issued a statement entitled, “Meet Manhattan D.A. Alvin Bragg.”

On his first day in office, Bragg directed prosecutors not to seek bail or jail time for criminals “to treat armed robbery as a misdemeanor, ignore retail thefts, to not prosecute people for resisting arrest and to deny felony charges in several violent attacks,” the statement says.

Since then, Bragg has been criticized “for prosecuting innocent victims and being soft on career criminals,” the statement says, alleging that he downgraded more than half of all felonies to misdemeanors.

Yet, in contrast, he seeks to do the opposite in Trump’s case, legal experts say.

Bragg is “a rogue prosecutor” who allegedly has tried “to take down Trump for many years,” Trump’s statement said. In one news article, Bragg stated that he was the most qualified candidate to prosecute Trump and that he had “sued the Trump administration over 100 times,” according to the statement.

The Associated Press contributed to this report.

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