Bragg’s bombshell

Camera shutters exploded like machine gun fire as former President Donald Trump walked into a Manhattan courtroom on April 4 to be arraigned on 34 charges of falsifying business records. The presidential perp walk marked a historic low for U.S. politics—the first current or former Oval Office occupant ever to be indicted on criminal charges.

The charges stem from a series of payments made to women who claimed to have had affairs with Trump, accounts widely circulated since 2018. Trump calls the criminal charges a political witch hunt. In a statement issued after Trump left the courthouse, Manhattan District Attorney Alvin Bragg said true and accurate business statements are especially important in Manhattan, the “business capital of the world.”

But the case against Trump is about far more than the alleged hush money payments at its center. The White House is at stake, as are the political careers of everyone involved.

Bragg impaneled the grand jury two months after Trump announced his bid for the presidency in 2024. The district attorney’s predecessor, Cyrus Vance Jr., opened an investigation into the payments in 2019 but dropped the case in favor of pursuing charges against the Trump Organization over its business dealings.

Two Trump Organization companies were convicted on 17 felony charges last year. But that did not turn aside attempts to hold Trump personally accountable for other claims of wrongdoing levied against him.

News about an alleged hush money payment to Stephanie Clifford, better known as Stormy Daniels, broke in 2018. Trump’s former lawyer, Michael Cohen, said he paid Daniels $130,000 just days before the 2016 election to keep her from going public with her claims of having an extramarital affair with Trump. He also admitted to paying another $150,000 to the National Enquirer to pass along to former Playboy model Karen McDougal. That payment gave the tabloid exclusive rights to publish McDougal’s story, although it never did.

Cohen said he made the payments from his own funds and then Trump reimbursed him after taking office. Trump denies any extramarital involvement with Daniels or McDougal. He also says Cohen can’t be trusted as a witness. Trump pointed out that Cohen pleaded guilty to eight separate crimes—including making false statements to a bank and unlawful campaign contributions. Cohen testified for several hours before the Manhattan grand jury in March.

Paying someone to keep a secret isn’t illegal in New York, but falsifying records is. Normally, it’s only a misdemeanor, but if records are falsified to conceal an underlying crime, it can be charged as a felony. Under the state penal code, it could be a Class E felony, punishable by up to four years in prison.

To find out what might happen in this case in the next few months, WORLD editors sat down with two lawyers well-versed in the federal legal system. Bobby Hidgon is a former U.S. attorney whose office handled numerous high-profile matters involving ­public corruption and financial fraud. Daniel Suhr is managing attorney for Liberty Justice Center, where he handles cases involving civil liberties and ­government overreach.

WORLD: Mr. Higdon, we learned on April 4 that many of the charges against Trump relate to alleged campaign finance violations, which you’ve prosecuted before. What are the challenges for the prosecutor here? And what are the defenses that the Trump attorneys can raise?

Higdon: I think anytime a prosecutor pursues a well-known public figure, and then add on top of that someone who’s in the political arena, you have a number of challenges. No. 1 is that jurors are sometimes reluctant to convict people they think they know. And so when you have a significant public figure—and you can’t really get more significant than a former president of the United States—and jurors come face-to-face with them in a courtroom, you have to overcome the feeling jurors have that they know this person. And that works both ways—that they know them and like them, or know them and don’t like them.

In terms of campaign finance laws, they’re oftentimes very technical, and they’re also subject to interpretation based upon the intent: What was the point of the expenditure? We saw in cases we prosecuted that when it involves what we would view as improper, immoral conduct that occurs in society writ large and is now imposed in the campaign context, jurors are often reluctant to convict because, I think, they feel like it’s too personal. That may work against Mr. Bragg—it just depends on how it strikes jurors.

Also, I’ve seen in the cases I’ve prosecuted where there’s intense media interest—the constant reporting, the constant analysis of your legal theories—it produces really significant hurdles both for and against conviction. So that’s the kind of thing Mr. Bragg is going to be dealing with. But he’s going to be dealing with it in a way that no one else ever has, because this is the highest public official ever indicted in this country. And so whatever any of us may think about the challenges he faces, I don’t think we can quantify them because it’s never happened before.

WORLD: Mr. Suhr, you specialize in civil liberties and constitutional law. Conservative commentators have said Manhattan District Attorney Alvin Bragg is engaged in a political persecution and not a legitimate prosecution. Can you speak to the issue of potential government overreach in this case?

Suhr: Yes, absolutely. I think this is one of those moments where two classically American principles are in conflict. That on the one hand, we live in a country that’s defined by a creed that includes no man is above the law, right? And so even a president or a former president is still a citizen, which means if they break the law, they should be prosecuted just like anybody else. On the other hand, we also have this long-­established tradition in this country that we don’t use the criminal justice system as a tool for politics. That’s what happens in dictatorships where dictators hold on to power by prosecuting political opponents. And that’s just not our country. We’ve always had an especially high standard for criminal prosecution of a current or former public official because we don’t want prosecutors to decide who our leaders are. We want voters to decide.

WORLD: Mr. Higdon, you were involved in the 2011 prosecution of Democratic U.S. Sen. John Edwards of North Carolina, who paid his ­mistress hush money to conceal an affair. Some have pointed out parallels between the cases. For example, Trump’s attorneys say he used his own money to pay his alleged mistress, and Edwards’ defense team argued that the campaign donations Edwards used were actually personal gifts. Also, both cases involve star witnesses whose credibility is in doubt—in the Edwards case, a ­member of his staff, and in the Trump case, his former attorney Michael Cohen.

Higdon: There is a parallel in that you had star witnesses, if you will, that both carry a great deal of baggage. But I think there are a number of differences here. John Edwards was a candidate for federal office, and he was subject to campaign finance regulations, which included a limit on contributions that others could make to his campaign. And I think at the time it was a $2,300 limit. And so the charges were that Mr. Edwards had taken in over $1 million, and that some of those funds had been used to hide the affair and also hide a child born of the affair, so as not to negatively impact his campaign. So it was all very much campaign-related.

What’s also different between the cases is that Mr. Edwards was not a candidate for federal office at the time he was charged. In fact, the DOJ went to great lengths to conceal even the investigation until the 2008 ­election was completed—an election in which Mr. Edwards wasn’t even a candidate anymore. By contrast, the Trump indictment has been brought right at the beginning of the presidential primary season. They’re charging a candidate who is currently active in a campaign. They are also engrafting federal campaign finance violations, apparently, on state charges. Another difference is that Mr. Edwards’ case was not subject to statute of limitations, venue, or jurisdiction arguments, all of which exist in the Trump case. And so I think the cases are very, very ­different. I can understand people trying to draw those parallels, but I think some are doing it largely to ­justify what’s going on here.

WORLD: Mr. Suhr, you talked a bit about how this serves Mr. Bragg’s political career in terms of fulfilling many Democrats’ deeply held conviction that Mr. Trump has behaved criminally and is finally being indicted for it. But could it not also serve Mr. Trump’s political career? Aren’t his interests aligned in this case, too?

Suhr: The irony is that the one interest that’s being left out is the American people. We should be ­having the 2024 presidential debate among Republican primary voters about that right combination of who can win and who can best serve the country. But once again, instead, we’re going to have a media circus. But on whether this serves Mr. Trump’s interests, I do think this gives Mr. Trump two narrative opportunities. One is to say, “I have fought harder for my people than any other Republican president, and therefore have offended the ruling elites on the other side more than any other president. And that’s why they’re coming after me.” And then No. 2, I think it’s going to be an opportunity for him to say this is all part of the same overarching narrative we’ve had for the last five years from the Russia investigation to the two impeachments—that, you know, the other side just cannot get over their obsession with me, Donald Trump, and this will go down in flames just like those efforts did.

As for Alvin Bragg’s motives, that’s a judgment call that individual voters will make and one call that individual jurors will make. But for me, one of the easiest guideposts is the fact that the United States Attorney, the Federal Election Commission, and the previous Manhattan DA all looked at these same campaign finance allegations and declined to prosecute them. You have to ask, what changed? Is it some piece of new evidence? Or does it seem like it’s a prosecutor who has a track record of playing politics in his office as Mr. Bragg has?

Higdon: One of the infirmities that Mr. Bragg has is that in his statements as a DA candidate, he said one reason he should be elected was that he had been in litigation with Trump or his organization something like 100 times. In my mind, it’s such an improper thing to have a prosecutor campaign this way. In other words, if you elect me, I’m going to bring charges against this person—without any knowledge about the facts and evidence that he would have access to. I spent 30 years doing this. I never once looked for a crime to match up to a defendant. I found out about crimes and looked to find out who did them. The opposite is happening here, if you look at Mr. Bragg’s ­comments, and that’s what’s really troubling.

WORLD: Both of you have alluded to a “targeted” prosecution. Isn’t that generally difficult to demonstrate to a court?

Higdon: It’s a heavy burden. But you don’t usually have a situation where the lawyers, particularly for the government, have been so overt about their desire to “get” a particular defendant. And so I think we’re in kind of uncharted territory. Mr. Bragg was pretty direct about his goals here. Now, we’ll see if the Trump attorneys attempt to raise that argument, and we’ll see what a judge does about it.

WORLD: Do either of you think Mr. Trump can get a fair trial in New York City?

Higdon: That is always the issue anytime there’s a high-profile matter in any location. And certainly there have been a number of commentators on both sides who’ve said that they don’t think that he can. I like to believe the American people are fair-minded, but he is such a well-known public figure in that city, even apart from being president. But then, of course, he has been a polarizing figure. I’m sure his attorneys’ questions to potential jurors will be very probing to see if they have preconceived ideas. It’s very hard to select a jury in any high-profile public case.

Suhr: I think this case ultimately is going to test the integrity of not just jurors, but a lot of people. I agree that the American people have the ability to be fair-minded, but I’m just as, if not more, concerned about the individual trial court and appeals judges. Are these judges going to act with integrity and do what they would do in any other case where the law leads? Or are they going to make decisions that allow them to avoid responsibility or placate some element that they feel they have to be subservient to? Are they going to ask themselves, If I rule for Donald Trump, what will that do to my career in New York politics or future public office? People are going to be tested. It’s going to be hot.

WORLD: How do you think Trump attorneys will argue the campaign finance issues before a jury?

Higdon: What I’ve seen in other campaign finance cases that turn on sort of immoral, improper personal conduct is that the real question comes down to, was I trying to hide this from my spouse or my family? Or was I really trying to further my electoral chances? There are also questions about whether it’s even a campaign finance violation for Mr. Trump to use his own money, because legally he can use as much of his own money to further his electoral goals as he wants. But I do think it probably comes down to the intent question.

Suhr: But that’s not just the hardest question—it’s also the one where it’s going to be the most difficult to get fair-minded jurors. Can we ask 12 New Yorkers a question like, “Was he the one holding the gun on the night of the murder?” That’s a judgment call they can make based on the witnesses they hear. But if you’re asking, “Do you think Donald Trump had a malevolent purpose in what he was doing on X date?” then your perception of who Donald Trump is comes into that question to a much greater degree. It’s much harder to have a fair trial on a question like that.

WORLD: Let’s say you’re reading this and you’re a Democrat or a Never Trumper? Maybe you’re saying to yourself, Well, they’re just saying that because it’s Donald Trump. Can you speak to what this precedent might do if it were broadly or even reciprocally employed?

Higdon: Anytime you open the door to anything improper, you need to keep in mind that the next time around, it may be you on the receiving end. So it is very easy to envision the next time around, where there is a Democratic office holder or candidate who has some type of issue similar to this, then the restraints would be off of the other side to pursue them. It would make it no more right if the Republican Party were pursuing a Democrat than it does right now.

Suhr: One of the things that’s striking here is that, in some sense, Alvin Bragg has already won. This is one of those where simply the fact of the indictment is almost as good as the conviction. Think about President Trump being impeached twice. In both cases, the Senate did not convict. And yet in terms of Nancy Pelosi fulfilling her pledges to her base, or the careers of people like Rep. Adam Schiff taking off, the impeachments were good enough. Alvin Bragg doesn’t have to win this case in front of a jury in the next year; he’s still going to be the most popular speaker at Democratic Party events. He’s still going to see a massive amount of small- and large-dollar donors contributing to his campaign from all across America. He’s still going to be on MSNBC all the time. That’s the victory Bragg gets even if he doesn’t ever get to the point of a jury trial.

WORLD: So what do we expect next? And how quickly do you think the Trump case will move forward?

Higdon: I gather that the Trump attorneys’ position is they would like to move this to the motions practice pretty quickly. And I would imagine that’s the right move to make. And they’ll attempt to get the indictment dismissed. For whatever reasons, they would argue that it’s barred by the statute of limitations, or it’s legally flawed because of this stacking of federal charges on top of state charges.

There’ll be an exchange of discovery, which may have to wait until those motions are decided or the judge could order to just go ahead and submit an exchange of discovery, which is basically exchanging the evidence that the two sides have. But it’s really the prosecutor disclosing his evidence to the defense, not as much the other way around. And then, they schedule a trial. I don’t know what type of pace the Manhattan District Attorney’s Office is calling cases for trial, but we’re talking about a matter of months, if not longer, before this would come to trial. So I expect that’s how it will play out.

High crimes & misdemeanors

Donald Trump’s indictment marks the first time in U.S. history a ­former president has been charged with criminal wrongdoing. But other American presidents and vice presidents have faced legal trouble while in office or after leaving, according to Mark Caleb Smith, director of the Center for Political Studies at Cedarville University.

The House of Representatives impeached President Bill Clinton in 1998 for perjury and obstruction of justice over his attempted cover-­­up of an affair with former White House intern Monica Lewinsky. The Senate acquitted him, but the threat of a grand jury indictment loomed until the last hours of his presidency, when Clinton admitted to lying under oath, surrendered his law license for five years, and agreed to pay a $25,000 fine.

A grand jury in 1974 named President Richard Nixon an unindicted co-conspirator for his role in the Watergate scandal. The grand jury planned to indict him for bribery, conspiracy, obstruction of justice, and obstruction of a criminal investigation but never formally charged him. He resigned, avoiding impeachment. One month later, President Gerald Ford pardoned Nixon, saying he didn’t want to polarize the nation further with a long, drawn-out trial.

An apologetic policeman arrested President Ulysses S. Grant in 1872 for speeding when he caught him a second time racing his horse-drawn carriage in Washington, D.C., this time around the corner of 13th and M streets. Grant, a lover of fast horses and an expert buggy driver, reportedly smiled sheepishly and dutifully paid $20 as collateral at the police station, but skipped his trial.

Smith says Trump is the only other U.S. president or former president to be arrested.

Vice President Spiro Agnew resigned from office in 1973 amid a corruption scandal. He pleaded no-contest to a single felony tax-­evasion charge in exchange for the government dropping corruption charges for alleged kickbacks he received during his Maryland political career. The judge fined him $10,000 and sentenced him to three years unsupervised probation. A year later, the Maryland Court of Appeals disbarred him.

Vice President Aaron Burr fatally shot Alexander Hamilton in a duel in 1804. He fled south to avoid arrest warrants but returned after New York and New Jersey dropped murder charges. He ­finished his vice-presidential term in 1805. Two years later, he faced treason charges for allegedly planning the secession of several Western states and trying to create an independent nation, but a Virginia federal court ultimately acquitted him. —Sharon Dierberger

Cases in the wings

Former President Donald Trump’s legal troubles transcend Manhattan. The case involving hush money is only one of four investigations swirling around the de facto Republican leader. Here’s a rundown of the others:

➤ A Fulton County, Ga., special grand jury concluded its work investigating Trump’s involvement in the 2020 election in January and submitted a final report, parts of which were released in February. But the bulk of the report, along with whether it recommended criminal charges, remains redacted. Prosecutor Fani Willis said decisions on indictments against several people are “imminent.” Prosecutors allege Trump tried to defraud the election when he called Secretary of State Brad Raffensperger and demanded he “find” 11,780 more votes. The jurors heard testimony for eight months but concluded some of the 70 witnesses perjured themselves.

➤ The Department of Justice is spearheading two probes into the 2020 election and classified documents found at Trump’s Florida resort, Mar-a-Lago. Special Counsel Jack Smith is leading both. In a raid of Trump’s private property, the FBI found hundreds of documents that belonged in the National Archives, and many had Top Secret markings. Smith is also investigating Trump’s actions around the 2020 election and 2021 riot at the U.S. Capitol. A House select committee recommended four criminal charges against Trump in December, but Smith has not said whether he will indict or how his investigation is progressing. 

➤ New York Attorney General Letitia James is also pursuing a civil lawsuit against Trump and the Trump Organization. She accuses the company of conflating wealth claims and assets to get loans and other business perks. James has referred criminal recommendations to Manhattan District Attorney Alvin Bragg. The civil lawsuit is set to go to trial in October. —Carolina Lumetta