‘Thin Gruel’: Legal Experts Unimpressed by 34-Count Trump Indictment
A New York grand jury has formally indicted former president Donald Trump on 34 counts of falsifying business records in the first degree. The charges are the result of a lengthy investigation Manhattan District Attorney Alvin Bragg’s (D) has pursued into the former president’s past business dealings, which zeroed in on payments he made to adult film star Stephanie Clifford (a.k.a. Stormy Daniels) for her silence about an alleged affair Trump had with her, through his former lawyer Michael Cohen.
Trump arrived at the Manhattan courthouse on Tuesday and pled “not guilty” to all the charges.
But legal experts and other observers have publicly wondered whether Bragg’s case, both factually and legally, was strong enough to convince anyone. “To call this thin gruel is an insult to thin gruel,” wrote National Review’s Dan McLaughlin, when the indictment was unsealed. Former federal prosecutor Andrew McCarthy called it a “disgrace” and “even worse than I’d imagined.”
“They’re claiming that each check that Mr. Trump wrote to Mr. Cohen and identified it as legal fees was actually a form of an illegal campaign contribution to pay hush money to silence those who were accusing him in order to benefit his campaign,” said Liberty University professor Phill Klein, who previously served as Attorney General of Kansas, on “Washington Watch.” He added, “so, the 34 counts: it sounds like a lot of felonies. It’s just each individual check is an individual count.”
“Bragg not only charges each monthly installment separately; he subdivides the installments into installments (as if the invoice, book entry, and check were independent criminal events). Voilà, one transaction becomes 34 felonies!” wrote McCarthy.
McCarthy also expressed surprise that the indictment accused Trump only of bookkeeping crimes. Under New York law, he explained, such a crime would be a misdemeanor unless it was committed as part of a more serious crime, which would upgrade it to a felony. Each indictment does indeed allege that Trump falsified business records with “intent to commit another crime and aid and conceal the commission thereof.” But McCarthy noted, “nowhere in the indictment does the grand jury specify what other crime Trump fraudulently endeavored to commit or conceal by falsifying his records.” Such an “inexcusable failure” led McCarthy to conclude, “The worst due-process abuse of Bragg’s indictment, however, is that … it’s not an indictment” (ellipses in original).
“We needn’t speculate why Bragg is being so coy about this,” added McCarthy. “He doesn’t have another crime.”
In addition to the charge inflation, commentators also questioned the credibility of Bragg’s star witness. “The D.A. has made his case based on primarily Michael Cohen,” Trump’s lawyer who was reimbursed for the money he gave Clifford, summarized FRC president and “Washington Watch” host Tony Perkins. But “Cohen is the one who was convicted for lying and spent three years in prison.” Kline added, “It’s not that he’s just been convicted of lying. It’s that he’s lied about this. You can find statements by Mr. Cohen where he diametrically opposes what he’s saying now.” Perkins suggested, “I would think that he would be chewed up and spit out by the president’s defense attorneys.”
Other commentators pointed out another legal difficulty Bragg’s case will have to overcome — an expired statute of limitations. The New York statute of limitations for false bookkeeping is two years for a misdemeanor and five years for a felony. However, “the last payment, and last false record, charged in the indictment, came in December 2017, more than five years ago,” noted McLaughlin. This has generated speculation about various creative legal theories Bragg might use to defend his case against this statute of limitations. “It just highlights” the “unprecedented, hostile [nature of this] case,” said Judicial Watch President Tom Fitton on “Washington Watch,” “that we’re questioning whether he’s within the statute of limitations.”
“From legal people that I’ve talked to, [the Trump indictment] ought to be dismissed out of hand. It ought to be dismissed quickly,” said Representative Bob Good (R-Va.) on “Washington Watch.” “I hope the judge will do the right thing.”
The presiding judge in the case is Juan Manuel Merchan, an acting justice of the New York State Supreme Court (a trial-level court, not the state’s highest court). On Tuesday, he denied a motion from District Attorney Bragg to place a gag order on Trump, which would prevent Trump from speaking publicly about the case. “The former president is in a race for president. He’s already declared [as] a candidate,” noted Perkins. “Would that not have been a violation of free speech as well as campaign intervention?”
Fitton noted that “the judge did admonish Trump not to say anything that would cause violence, which, of course, isn’t protected speech anyway. … But he also, according to reports, had another standard about offending the rule of law or hurting the process.” Fitton reasoned, “even though it was a suggestion, it’s going to restrain or restrict [Trump’s] ability” to speak freely.
Outside the courthouse, a large crowd gathered to see the 45th president. It numbered several hundred around 11 a.m., but the “crowd grew to … many thousands of people,” Daily Signal reporter Jarrett Stepman, who was present, estimated on “Washington Watch.” “There was obviously tension” between Trump supporters and detractors, but “the police kept the pro- and anti-Trump groups” apart, and the gathering remained peaceful, Stepman said.
In the event, “there was really only a brief moment in which people could even see the former president,” said Stepman. “People didn’t really know what to expect,” and just “wanted to see what was going to happen.”
Joshua Arnold is a staff writer at The Washington Stand.