ALAN DERSHOWITZ: I’m not a Trump voter – but this laughable indictment over a porn star payoff is the most ridiculously weak, contorted case I’ve ever seen. DA Bragg has disgraced his office
Alan Dershowitz is a lawyer, Harvard Law School Professor and author of ‘Get Trump: The Threat to Civil Liberties, Due Process, and Our Constitutional Rule of Law’
In all my 60 years of criminal defense litigating and teaching, I have never heard of a case based on such a ridiculous stretching of the law than the reported indictment of Donald Trump.
Although the indictment remains sealed, it is highly likely that New York City District Attorney Alvin Bragg is attempting to charge Trump for conduct related to his alleged $130,000 payment to porn star Stormy Daniels in exchange for her promise not to disclose a consensual, adulterous affair during his 2016 presidential campaign.
Bragg has disgraced a once proud office.
To state the obvious, while immoral, it is not illegal to pay hush money. So, to turn this relatively benign payment into a state felony, the District Attorney must perform a series of legal contortions.
First, he must prove that the payments were fraudulently described in business records.
Generally, one wouldn’t be expected to dutifully document ‘hush money paid to a porn star to remain silent about an adulterous affair,’ as the whole point of the payoff is to keep it hush-hush. But Bragg wants to make it criminal.
In any event, even if the DA convinces a jury that Trump falsified business records, the worst-case scenario is that this crime is a minor misdemeanor.
That’s hardly the scalp that Bragg desires. And so, he must perform another magic trick.
The DA would have to prove that the records were falsified for the purpose of covering up an unreported campaign contribution.
If Trump secretly paid Daniels to keep quiet for the sole benefit of his presidential campaign, then that may well be a federal crime.
In all my 60 years of criminal defense litigating and teaching, I have never heard of a case based on such a ridiculous stretching of the law than the reported indictment of Donald Trump.
In any event, even if the DA convinces a jury that Trump falsified business records, the worst-case scenario is that this crime is a minor misdemeanor.
And presto! According to Bragg’s novel legal theory, that concocts a state felony for which he can prosecute Trump.
Don’t try to make sense of it – it’s nonsensical.
As it’s said – a prosecutor can indict a ham sandwich. Winning at trial is something else entirely.
Bragg’s whole argument hinges on a psychoanalyst’s Freudian diagnosis of Trump’s motivations. Why did he do, what he allegedly did?
At trial, if the defense raises a reasonable doubt that Trump inaccurately recorded the alleged hush payment to prevent damaging embarrassment to his wife, his family, his business ventures, or for any reason other than his campaign, then the charges will not stick.
This case rises and falls on credibility. Unfortunately for Bragg, his key witness, former Trump lawyer and so-called fixer, Michael Cohen, doesn’t have much.
If anyone has first-hand knowledge to back up Bragg’s theory that Trump paid off Daniels to protect his political aspirations, it would be Cohen, who has already testified before the grand jury. He was the apparent conduit through which Trump paid Daniels. And he existed inside Trump’s inner circle for years as a trusted – if not derided – employee.
If the Manhattan DA had any brains, he will tell Cohen to stay home.
After all, he’s a convicted liar.
In December of 2018, Cohen plead guilty in Manhattan federal court to campaign finance violations for coordinating a payment to Daniels and another woman with whom Trump was alleged to have had an affair.
A letter, obtained by DailyMail.com, shows Cohen’s lawyer informing the Federal Election Commission in 2018 that Trump wasn’t involved in the hush money scheme.
The letter reads quote: ‘Neither the Trump Organization nor the Trump campaign was a party to the transaction with Ms. Clifford, and neither reimbursed Mr. Cohen for the payment directly or indirectly.’
The obvious question for Cohen is: where you lying then, or are you lying now?
Last week, Cohen’s former legal adviser, Robert Costello, testified before the grand jury. After he left the court, he told the media that he informed the jurors that Cohen, ‘couldn’t tell the truth if you put a gun to his head.’
Cohen also plead guilty to concealing more than $4 million in personal income from the IRS and lying to a bank to secure a home loan.
As it’s said – a prosecutor can indict a ham sandwich.
To state the obvious, while immoral, it is not illegal to pay hush money. So, to turn this relatively benign payment into a state felony, the District Attorney must perform a series of legal contortions.
He was sentenced to three years in federal prison and ordered to pay a $50,000 fine.
To suggest that Cohen has an axe to grind against Trump would be an understatement – in fact, he wrote two books about it.
In the aptly named ‘Disloyal’ and ‘Revenge,’ Cohen describes Trump as a power mad, wanna-be dictator. No matter how inclined a jury is to punish Trump, they can’t be completely blind to Cohen’s bias.
Even if they are sympathetic to Cohen’s antipathy – they can’t ignore that he did help Trump when it was convenient.
Cohen plead guilty to lying to Congress about an abandoned project to build a Trump Tower in Russia. In his plea, he said he misled the U.S. Senate Select Committee on Intelligence to protect Trump’s campaign messaging.
Finally, Cohen is on tape threatening a journalist investigating the claims of Trump’s first wife, the late-Ivana Trump, who once accused Trump of spousal rape. She later retracted the claim.
‘I will take you for every penny you still don’t have,’ Cohen is heard telling then-Daily Beast reporter Tim Mak. ‘And, of course, understand that by the very definition, you can’t rape your spouse,’ Cohen continued.
Of course, that’s not true. And it won’t look good in front of jury either.
It is still unknown whether there are other, more credible witnesses, who can incriminate Trump.
The publisher of the National Enquirer, David Pecker appeared before the grand jury this week and he may testify at a potential trial. He was also caught up in the alleged payments.
Pecker was fined $187,500 by the Federal Election Commission for ‘knowing and willfully’ violating campaign finance law by paying a Playboy model for her story about an alleged affair with Trump for the purpose of never publishing it.
In December of 2018, Cohen plead guilty in Manhattan federal court to campaign finance violations for coordinating a payment to Daniels and another woman with whom Trump was alleged to have had an affair.
Daniels may also be called to the stand although her testimony would not be directly relevant to how Trump recorded the payments.
I would also advise the defense not to deny in court what Trump’s lawyer has already denied to the media: that Trump had an affair with Daniels.
The jury will not believe that claim, and it would affect the credibility of the entire defense.
Nor should Trump take the stand in his defense, because to do so would open him up to embarrassing questions which he might be tempted to answer falsely.
If this type of prosecution, with the same facts and law, were directed against an ordinary citizen it would have virtually no chance of succeeding. But because the target is Trump and the location is the very blue city of New York, the likelihood of an indictment and conviction is better than even.
Even so, it would likely be reversed on appeal. In fact, Americans may be voting for president in 2024 as a court considers overturning.
But Bragg probably doesn’t care what an appellate court would do in two years. He’s looking for his 15 minutes of fame now and for the political benefits that will result from a politically popular “get Trump” prosecution in heavily Democratic N.Y.C.
Trump may also benefit nationally from the backlash of voters who see this as a political prosecution, which it is.
The only real harm that will come from this case is the damage it will do to the country, as our society spirals deeper and deeper into division and distrust.
No matter the outcome of Bragg’s case – we all lose.
This piece is an update from an article that first appeared on March 24, prior to a Manhattan grand jury’s indictment of Donald Trump
Source: Read Full Article
