Several former prosecutors said Manhattan District Attorney Alvin Bragg’s case against former President Donald Trump faces major hurdles, coming more than a week after his unprecedented arraignment at a Manhattan courthouse.
Since his arrest, a number of legal experts have publicly said that if the case didn’t involve Trump, charges likely wouldn’t have been brought.
“If it wasn’t Donald Trump, no prosecutor in the world would have touched this,” former Manhattan assistant district attorney Daniel Bibb told Fox News. “If you and I did what Trump did, we never would have been charged.”
And former Manhattan prosecutor-turned-criminal defense lawyer Mark Bederow said that “if you bring an unprecedented case like this against a former president and current presidential candidate, it’s essential for the credibility of the criminal justice system to present a clear and cogent explanation of your theory as opposed to saying I don’t have to tell you.”
Bederow noted that Bragg’s office will have to call in former Trump attorney Michael Cohen, who spent several years in a federal prison after pleading guilty to a range of charges, to testify against Trump. It would be easy to call Cohen’s credibility into question—based on his prior convictions.
“If Michael Cohen told you today was Wednesday would you believe that unless you looked at your own calendar?” he said.
Prosecutors, he added, would also have to call in Stormy Daniels, an adult film actress, to the stand to testify. The lawyer noted that Daniels, who recently was ordered by a court last week to pay Trump legal fees, has made contradictory statements about the payments.
During a news conference after Trump’s arraignment, Bragg’s office said that Trump falsified business records—normally a misdemeanor—but those charges were raised to the level of a felony. It alleged that the former commander-in-chief was trying to conceal a second crime, which Bragg did not disclose.
Bragg said that he is legally not required to disclose the second alleged offense. The indictment against Trump also does not say what the crime is, which legal experts say could be problematic.
Richard Hasen, an election law expert who works at the University of California – Los Angeles, told The Associated Press in a recent interview that the fact that the second crime wasn’t outlined makes it “murky,” noting that it’s not clear if a federal election law case can be brought in a state court. Meanwhile, Bragg “did not offer a detailed legal analysis as to how they can do this,” he said.
Bragg also did not provide a way “how they can get around these potential hurdles,” Hasen said. “And it could potentially tie up the case for a long time.”
In Trump’s case, Bragg said the phony business records were designed to cover up alleged state and federal election law violations. The $130,000 payment to Daniels exceeded the federal cap on campaign contributions, Bragg said. He also cited a New York election law that makes it a crime to promote a candidate by unlawful means.
“That is what this defendant did when he falsified business records in order to conceal unlawful efforts to promote his candidacy, and that is why we are here,” one of the case prosecutors, Chris Conroy, told the judge Tuesday.
“There are an awful lot of dots here which it takes a bit of imagination to connect,” said Richard Klein, a Touro Law Center criminal law professor. Bragg said the indictment doesn’t specify the potential underlying crimes because the law doesn’t require it. But given the likelihood of Trump’s lawyers challenging it, “you’d think they’d want to be on much firmer ground than some of this stuff,” said Klein, a former New York City public defender.
But while Bragg’s case appears to be flawed, Bederow argued, he has an advantage because of Manhattan’s overwhelmingly Democratic jury pool.
“This is Manhattan, so the DA has an overwhelming home-court advantage,” the attorney told Fox News. “If you put Donald Trump on trial for the Kennedy assassination, a Manhattan jury would probably find he’s the guy in the grassy knoll.”
Trump, a candidate for the Republican presidential nomination in 2024, says he did nothing wrong and that the case is a political persecution. In remarks from his Florida home just a few hours after his court appearance, he said, “This fake case was brought only to interfere with the upcoming 2024 election and it should be dropped immediately.”
The Associated Press contributed to this report.
