This is a first in more ways than one. Donald Trump not only became the first former US president to appear in criminal court on Tuesday, April 4. Alvin Bragg, the New York prosecutor who accuses him of "orchestrating" payments to cover up extramarital affairs before the 2016 election, is using a legal argument that has never been used before to turn it into a criminal case.
Alvin Bragg "has built one of the most controversial and high-profile cases in American history on the most uncertain legal basis possible," laments the American news analysis site Vox.
Minor crime?
The indictment is based on 34 cases of falsification of professional documents – "minor offenses under New York law," said Marc Scholl, a lawyer who worked for the New York prosecutor's office.
A type of offense that will not cost Donald Trump very much. "These offenses are punishable by a maximum of one year in prison, and generally the courts do not hand down imprisonment in such cases," said Christopher Phelps, a U.S. expert at the University of Nottingham. "Attacking a former president for simple petty crimes might seem a bit weak," the expert added.
Another New York law then comes into play. It specifies that this "simple" offense can become much more serious if "the forgery is used to cover up another offense or crime," says Stephen Dreyfuss, a New York lawyer and former prosecutor who was also the former president of the International Union of Lawyers (UIA). In this case, the law provides for a penalty of up to four years in prison.
It is this goal that Alvin Bragg, Democratic prosecutor elected to his post in January 2022, wants to achieve by prosecuting Donald Trump. And it is this two-step construction – establishing the forgery and then proving that it was used to cover up a more serious offense – that has never been tested before in American judicial history.
Look for crime
The problem is to know what is the offense that Donald Trump wanted to hide by creating false documents. "Alvin Bragg did not state the basis of his action in the indictment. He did throw out some leads during the press conference – the New York election law, federal campaign finance rules and a tax issue – but it's as if he himself had not yet chosen, "says Stephen Dreyfuss.
" READ ALSO on France 24: The prosecutor Alvin Bragg vs Donald Trump, the confrontation of two Americas
The most obvious avenue concerns the federal campaign finance law. The $ 130,000 paid by Michael Cohen, Donald Trump's former lawyer, to Stormy Daniels was not counted as campaign expenses "while it can be argued that he wanted to cover up a case that could have reduced Donald Trump's chances of winning the election," says Marc Scholl.
Jump that this option is also the most risky legally. First, it will be necessary to prove that Donald Trump wanted to help his electoral campaign by paying this sum. "He can very well say that his intention was to prevent his wife and family from learning about this extra-marital affair," says Christopher Phelps. Certainly, "circumstantial evidence – the fact that the payment was made during the campaign and the testimony of Michael Cohen – may suffice," says Marc Scholl. It is still necessary to convince a jury.
Above all, a question agitates the small American legal world: does the law of New York allow a judge of this state to take into account a violation of federal law? "There are no rules about this in New York law, and no strong opinion either," Scholl said. In other words: the judge can refuse to consider that Donald Trump has committed a crime simply because the facts do not fall under New York law.
This is probably why Alvin Bragg also invoked New York election law during the press conference. The latter prohibits the use of campaign funds to directly influence the outcome of an election. But here again, a problem remains: does this text target a local election or does it also cover the presidential election?
Leap into the legal unknown
Hence a third track "which could be the most promising," says Stephen Dreyfuss. This case can, indeed, also have a tax component: "If Alvin Bragg succeeds in demonstrating that Donald Trump falsified the documents to hide the real reason for the payment to Michael Cohen in order to allow him to evade the New York tax authorities, it would be a crime," summarizes this lawyer. The very media case of deception with a star of the X would then give birth to a simple story of tax fraud.
There is therefore no shortage of hypotheses in this procedure, which is based on an unprecedented legal basis. And this is the whole problem posed by Alvin Bragg's approach: "American law is based much more on case law than French law, and in this matter, there is no precedent, which makes the outcome all the more uncertain," summarizes Stephen Dreyfuss. The first criminal case against an ex-president is a real leap into the legal unknown. And which is not about to lead to a verdict: "The defense lawyers will take advantage of it to multiply the appeals for annulment and others, so that the real trial may not begin for a year," anticipates Christopher Phelps. A few months before the next presidential election in which Donald Trump is running...
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