That was clear from the nature of the indictment of Trump. Manhattan District Attorney Alvin Bragg went before the media after the day’s proceedings against Trump were completed, and announced: “Donald Trump was arraigned on a New York Supreme Court indictment returned by a Manhattan grand jury on 34 felony counts of falsifying business records in the first degree. Under New York State law, it is a felony to falsify business records with intent to defraud and an intent to conceal another crime.” Bragg claimed that Trump lied 34 times in order to “cover up” other felonies he had committed, but didn’t specify what those felonies were. Besides the hush money to prostitute Stormy Daniels, Bragg alleged that “Mr. Trump said that he was paying Mr. Cohen for fictitious legal services in 2017 to cover up an actual crime committed the prior year.”
Bragg was, however, short on specifics. What other felonies? What actual crime? Former U.S. attorney Andy McCarthy said that this lack of specificity torpedoed Bragg’s whole case, which, said McCarthy, “should be dismissed and actually should be dismissed quickly.” McCarthy explained that Bragg’s case “is actually worse than what we anticipated, because what we anticipated was that they were trying to bootstrap a misdemeanor, which, by the way, they’d have a good deal of difficulty proving if it was just a misdemeanor.”
Indeed. Michael Isikoff reported at Yahoo News Monday that Bragg would “charge Trump with falsification of business records,” and that “the charge of falsification of business records can be prosecuted in New York state as a misdemeanor. But Bragg’s office bumped up all the charges to Class E felonies — the lowest level of felonies in the New York state penal code — on the grounds that the conduct was intended to conceal another underlying crime.”
The problem is that the “underlying crime” has not been named. McCarthy explained: “And what we’ve thought up until now is that they were — he was going to use that as an avenue to enforce federal campaign [law]. But he’s got to tell us what he’s planning to do. And more importantly, he’s got to tell Donald Trump. So I think this indictment, even before you get to the statute of limitations and whether he’s got jurisdiction to enforce federal law, I would dismiss it on its face because it fails to state a crime.”
McCarthy added: “It is the function of an indictment in the criminal justice system to do two things. It has to put a defendant on notice of exactly what he’s being charged with, which is to say which crimes he’s being accused of committing, and it then gives the defendant — this is the second part of the vehicle — so if he’s ever charged with that again, he can use the first indictment to plead double jeopardy. So in order to make that work, you have to tell the defendant what it is that you’re accusing him of. And if an essential element of the offense is that you have to prove as the prosecutor beyond a reasonable doubt that he was trying to conceal another crime, you have to tell the defendant what the other crime is that he has, that he supposedly is concealing. This indictment fails to do that. This is the heart of the case. It’s not a felony unless he was trying to conceal another crime and if you don’t tell them what the crime is, how does that put him on notice and allow him to prepare his defense?”
The case against Trump is thus even weaker than it was expected to be. But Bragg and his handlers are likely calculating that the substance of the case doesn’t matter. Whoever is behind Bragg’s reckless and destructive persecution of Trump is apparently calculating that the prospect of a presidential candidate battling such a long list of felony charges will give distracted and indifferent voters the impression that Trump must have committed some terrible crime, and frighten them away.