An article in yesterday's NY Times, titled "The Legal Intricacies That Could Make or Break the Case Against Trump" (see
https://www.nytimes.com/2023/03/21/nyregion/trump-indictment-legal-theory.html?searchResultPosition=10) does a nice job of laying out the legal complexities of Bragg's case against Trump. As the articles notes, DA Bragg "may have to pull off a difficult maneuver, connecting the hush-money cover-up — a potential violation of state law — to a federal election." The article goes on to explain:
The details of any indictment that may be handed up as soon as this week are not yet known, and Mr. Bragg could charge any number of crimes. But there is a possibility that the case will rely on a legal theory that has never been evaluated by a judge.
[ . . . . ]
The case could hinge on the way Mr. Trump and his company, the Trump Organization, handled reimbursing Mr. Cohen for the payment of $130,000 to Ms. Daniels. Internal Trump Organization records falsely classified the reimbursements as legal expenses, which helped conceal the purpose of the payments, according to Mr. Cohen, who said Mr. Trump knew about the misleading records. (Mr. Trump’s lawyers deny that.)
In New York, falsifying business records can be a crime, and Mr. Bragg’s office is likely to build the case around that charge, according to people with knowledge of the matter and outside legal experts. The false business records charge is the bread and butter of the district attorney’s office white-collar practice — since Mr. Bragg took office in 2022, prosecutors have filed 117 felony counts of the charge, against 29 individuals and companies, according to data kept by the office.
But for falsifying business records to be a felony, not a misdemeanor, Mr. Bragg’s prosecutors must show that Mr. Trump’s “intent to defraud” included an intent to commit or conceal a second crime. That crime could be a violation of election law, under the theory that the payout served as a donation to Mr. Trump’s campaign, because it silenced Ms. Daniels and shut down a potential sex scandal in the final stretch of the campaign.
Although the district attorney’s office need not obtain a conviction on the election law violation, or even include it in the indictment, that second crime might be the aspect of the legal theory that is most vulnerable to attack.
So why do I distrust Bragg?
Here's the thing: just over a year ago, two highly experienced prosecutors, Mark Pomerantz and Carey Dunne, resigned in protest over Bragg's refusal to proceed with a racketeering case against Trump and the Trump Organization, which they believed was strong and which was ready to go. So how is it that Bragg went from refusing to prosecute a case involving a much more legally significant charge that two much more experienced prosecutors believed was solid and were ready to prosecute, to a year later being willing to try a case based on an untested legal theory, involving a much lesser charge? That really doesn't make much sense, and it makes me wonder what game Bragg might be playing.