Why Trump Indictment Is Being Criticized as Weak ‘Zombie’ Case

(Bloomberg) -- The indictment of Donald Trump over a $130,000 hush money payment to porn star Stormy Daniels has provoked fresh skepticism over whether Manhattan District Alvin Bragg chose the right case to prosecute the former president.

While details of Thursday's indictment remain secret, critics suspect Bragg is resurrecting a weak “zombie case” that languished in his office for years. They say it relies on an untested legal theory as well as the testimony of Trump's former attorney and fixer, Michael Cohen, who went to prison for tax evasion, lying to Congress and campaign finance violations tied to the payout.

The criticism of the Manhattan DA's decision hasn't just been from Trump supporters. After the indictment was disclosed, the Washington Post published an editorial calling the choice a poor first case for prosecuting a former president. 

What are the charges against Trump?

Bragg hasn't disclosed them yet. But Cohen claims Trump approved the hush money and reimbursed him through his company, which falsely recorded the checks to him as legal fees. That would be a criminal misdemeanor of falsifying records. To elevate those claims to a felony, prosecutors would have to prove the record falsification was done to commit or hide a second crime. Bragg may allege that crime was a campaign-law violation designed to help Trump's candidacy in the final days of the 2016 presidential race. 

What's so unusual about Bragg's case?

New York state and the federal government have their own campaign finance laws, and Bragg is a state prosecutor enforcing New York laws. If he's alleging Trump was falsifying records to cover up his federal election law violation, that would be a novel legal theory. If Bragg's argument is rejected by the courts, it would leave Trump facing only misdemeanors. Mark Pomerantz, a special assistant district attorney who quit in 2022 over Bragg's handling of the Trump probe, called it a “gnarly legal question.” Federal prosecutors who looked at the payments never brought a case against Trump, although the Justice Department has concluded that a sitting president cannot be charged with a federal crime.

What is the risk of relying on Cohen as a witness?

Cohen, as Trump's former fixer, claims he's the one who made the payments to Daniels on behalf of his boss. His credibility as a convicted felon would come under sharp attack by Trump's lawyers. Cohen says the payment was a campaign-finance violation made at Trump's direction. Trump, who denies having an affair with Daniels, has said he was extorted and doesn't concede it was a political donation. Bragg would have to prove Trump knew he was violating election laws, and proving intent is usually the hardest part for prosecutors. 

Did Bragg have other choices?  

Pomerantz argued Bragg should prosecute Trump over false financial statements that misstated his company's assets and liabilities, and had even considered adding the hush-money charges to that case. The Trump Organization and its former Chief Financial Officer Allen Weisselberg were convicted of state tax fraud crimes at trial last year. But Pomerantz said the hush-money charges were too problematic as a stand-alone case. 

What are the other potential cases against Trump?

Critics of Bragg say charging Trump over a hush-money payment before he was even in office is a poor choice for a first-ever indictment against a former president, given the prospect of more serious charges in Georgia and Washington, D.C.

Jack Smith, a special counsel appointed by US Attorney General Merrick Garland, is leading two federal criminal investigations. One is examining efforts by Trump and his allies to undermine the results of the 2020 presidential election. The other is into whether Trump and others mishandled classified information after he left the White House or if they tried to obstruct the US inquiry. In Atlanta, Fulton County District Attorney Fani Willis is investigating whether Trump and his allies broke the law in trying to overturn the results of the 2020 election. 

--With assistance from Erik Larson and Patricia Hurtado.

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