In the run-up to the formal indictment of former President Trump on Tuesday, many in the liberal media were chomping at the bit to see the statement of facts behind New York D.A. Alvin Bragg’s case. But following the release of the document, the wind was taken out of their sails early Wednesday night as even the most anti-Trump legal experts and talking heads were forced to admit the case was weak. Even former U.N. Ambassador John Bolton called it “distress[ing]” and “weaker than [he] feared it would be.”
Shortly after Bragg’s press conference following Trump’s arraignment, former assistant U.S. attorney Elie Honig seemed dismayed that Bragg didn’t explain what evidence he had that would bump the alleged false business records from a misdemeanor to a felony:
One of the complicated legal questions here is in order to bump that up from a misdemeanor to a felony. You have to show that those records were falsified to commit some other crime. Some second crime. Now, the indictment does not specify what that second crime is.
On Trump’s lawyers, Honig said they “rightly” complained that Bragg wasn’t being forthcoming with the evidence. “The whole purpose of an indictment is to serve notice on the defendant of what exactly you're charged with and what exactly, you're going to be defending yourself against,” he explained.
He also dismissed Bragg’s attempt to apply state election laws to a federal, presidential election and the tax fraud accusations since there was no apparent attempt to write off the hush money:
Now, D.A. Bragg – again who was a former colleague of mine – just clarified that a bit, he said federal campaign laws. There's going to be a legal question there. He said state campaign laws. I'm not sure how violations related to a presidential election would count as state campaign laws. There may be some creative argument there. And he did say in passing, and it's mentioned one time. In the statement of facts: tax fraud.
Now, there's no indication that they actually claimed a deduction. In fact, I believe they did not claim a deduction on this, but perhaps the theory is this was the plan.
It’s no surprise that faux conservative Alyssa Farah Griffin of The View was no fan of Trump, but when she was on CNN’s reaction panel, she too couldn’t believe how weak the case was. “We're going to see this play out, but I'm not sure in my interpretation, as a non-lawyer, this is quite as strong as I expected it to be,” she lamented.
She also pointed out how easy it was to argue the indictment was nakedly political given that “the next hearing … is scheduled for December 4” eight months away and “two months” before the Republican primary elections and caucuses.
But it was Bolton who gave the indictment the most damning critique.
“Well, speaking as someone who very strongly does not want Donald Trump to get the Republican presidential nomination, I'm extraordinarily distressed by this document,” he said. “I think this is even weaker than I feared it would be.” He went on the warn that that case was “easily subject to being dismissed or a quick acquittal for Trump.”
Like Honig, he too took issue with Bragg’s attempt to apply a state election law to a federal race:
And as what I understood the District Attorney to say that he thinks there's a New York election law involved here. All I can say is the Federal Election Campaign Act absolutely preempts any state or local law to the contrary. How could it be otherwise? You've got one law governing corporate finance and a presidential election at the federal level, you're gonna have 50 state laws interfering with it. So, he's just wrong on the applicability of the New York statute.
Bolton also deduced that “there is no basis in the statutory language to say that Trump's behavior forms either a contribution or an expenditure under federal law.”
Playing out Bragg’s argument to its logical conclusion, Bolton pointed out that “every single expenditure a candidate made could be taken to have something to do with his campaign” no matter how innocuous. “If you can construe the statute to cover this behavior, then I think it violates the First Amendment because you're deeply into territory that makes … the federal statute too vague for enforcement,” he warned.
The transcript is below, click "expand" to read:
CNN’s The Lead
April 4, 2023
4:28:34 p.m. Eastern(…)
ELIE HONIG: The core conduct that is charged in this indictment is the payment of hush money. Now, payment of hush money is not a crime. It's not a federal crime. It's not a state crime. So, how did they get here to state charges?
They're relying on a state law that makes it in the first instance a misdemeanor to falsify business records. These are the repayments to Michael Cohen. That were falsely logged within the Trump organization as legal fees when they were not legal fees.
One of the complicated legal questions here is in order to bump that up from a misdemeanor to a felony. You have to show that those records were falsified to commit some other crime. Some second crime. Now the indictment does not specify what that second crime is.
You heard the defense lawyers, I think, rightly complaining about that. The whole purpose of an indictment is to serve notice on the defendant of what exactly you're charged with and what exactly, you're going to be defending yourself against.
Now, D.A. Bragg – again who was a former colleague of mine – just clarified that a bit, he said federal campaign laws. There's going to be a legal question there. He said state campaign laws. I'm not sure how violations related to a presidential election would count as state campaign laws. There may be some creative argument there. And he did say in passing, and it's mentioned one time. In the statement of facts: tax fraud.
Now, there's no indication that they actually claimed a deduction. In fact, I believe they did not claim a deduction on this, but perhaps the theory is this was the plan.
(…)
4:30:49 p.m. Eastern
ALYSSA FARAH GRIFFIN: Listen Michael Cohen was always going to be challenging start witness, but the D.A. did a good job of laying out the facts that back it up. However, the court of public opinion matters here, and I think the politics that Donald Trump is going to lean into when we hear him speak tonight are going – There are some things that are in his favor here.
So, the next hearing, according to CNN's reporting is scheduled for December 4. So, if you're somebody at home who’s skeptical of this case you're saying, “So, they waited seven years to try it. Then they're waiting about eight months to have the second hearing on it. And by the way, it's going to fall two months before the Republican primary.”
If you're Donald Trump, you're gonna say it's a witch hunt. It's political. It's a partisan D.A. I’ve also seen some of his folks leaning into the fact that you know Alvin Bragg saying, “nobody’s above the law. We prosecute even these white collar crimes.” They're going to lean into the fact that you know, he’s decided to downgrade sub-felony offenses to misdemeanors. Things like marijuana. Things like trespassing. So, there's some fodder here for Trump to push back.
We're going to see this play out, but I'm not sure in my interpretation, as a non-lawyer, this is quite as strong as I expected it to be.
(…)
4:37:47 p.m. Eastern
JOHN BOLTON: Well, speaking as someone who very strongly does not want Donald Trump to get the Republican presidential nomination, I'm extraordinarily distressed by this document. I think this is even weaker than I feared it would be, and I think it's easily subject to being dismissed or a quick acquittal for Trump.
Just speaking – going back to the days when I represented Jim Buckley and Gene McCarthy and the constitutional challenge to the underlying federal statute here passed in 1974. I can say there is no basis in the statutory language to say that Trump's behavior forms either a contribution or an expenditure under federal law. The two key definitions and issue here.
If it did, it would mean that every single expenditure a candidate made could be taken to have something to do with his campaign. Do I buy a $1 comb to comb my hair or $10 comb to comb my hair? If you can construe the statute to cover this behavior, then I think it violates the First Amendment because you're deeply into territory that that makes this statute absolutely – the federal statute too vague for enforcement.
And as what I understood the District Attorney to say that he thinks there's a New York election law involved here. All I can say is the Federal Election Campaign Act absolutely preempts any state or local law to the contrary. How could it be otherwise? You've got one law governing corporate finance and a presidential election at the federal level, you're gonna have 50 state laws interfering with it. So, he's just wrong on the applicability of the New York statute.
(…)
