Trump Indictment Is Vague About A Key Requirement – The Underlying Crime That Would Make It A Felony

Alleges that he committed a felony in part because his lawyer paid too much in taxes
Former US President Donald Trump Jr. arrives to the New York criminal court to face indictment brought by a grand jury assembled by Manhattan District Attorney Alvin Bragg, on April 04, 2023 in New York, United States.
Lev Radin/Anadolu Agency via Getty Images

When New York prosecutors charged former President Donald Trump with 34 felonies, they employed a law that can turn a misdemeanor into a felony if the misdemeanor took place while carrying out another crime. But the indictment provides little explanation of what that crime is, leaving some election lawyers scratching their heads.

“This appears to me to be a very weak aspect of the indictment and associated statement of facts, given how critical the ‘intent to commit another crime’ element is to NYC’s case,” said Robert Kelner, an election lawyer with Covington & Burling LLP. “The indictment is surprisingly vague in articulating what the other crime is, though it certainly appears they are relying on an alleged federal campaign finance law violation. If that’s the violation [former Trump lawyer Michael] Cohen admitted to in the federal case, as appears to be so, it’s an awfully thin reed to rely upon because the Cohen case itself was weak, in my view.”

It also throws another possible crime in, adding that, “The participants also took steps that mischaracterized, for tax purposes, the true nature of the payments made in furtherance of the scheme.”

The documents said that to reimburse hush money that Cohen paid to a porn star, the Trump Organization doubled the amount of money “so that Lawyer A could characterize the payment as income on his tax returns, instead of a reimbursement” — meaning the alleged tax fraud was paying too much in taxes, not too little.

A press release from Manhattan District Attorney Alvin Bragg said Trump “went to great lengths to hide this conduct, causing dozens of false entries in business records to conceal criminal activity, including attempts to violate state and federal election laws.”

A statement of fact from the grand jury says, “In order to execute the unlawful scheme, the participants violated election laws and made and caused false entries in the business records of various entities in New York.” But neither it nor the indictment explain how New York State election laws were implicated.

At a press conference, Bragg mentioned a state law that says, “Any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor.”

A top liberal election lawyer, Paul Seamus Ryan, said, “There’s no mention of or citation to any election laws (state or federal) in the indictment. The only statute cited in the indictment is Penal Law §175.10, the felony false business records law. There are likewise no references to state election laws in the Statement of Facts, and the only references to federal election laws are very, very general in nature.”


Ryan filed a complaint that Trump committed campaign finance crimes, but the Department of Justice did not prosecute, and federal campaign finance law is seemingly outside of Bragg’s jurisdiction.

Federal statute provides that federal campaign finance laws “supersede and preempt any provision of State law with respect to election to Federal office.” FEC regulation elaborates that “Federal law supersedes State law concerning the … (2) Disclosure of receipts and expenditures by Federal candidates and political committees; and (3) Limitation on contributions and expenditures regarding Federal candidates and political committees.”

However, elections are run by states, so Bragg could potentially charge him with violating a state election law, as opposed to a state campaign finance law.

The statement of facts also contains new information: An allegation that Trump explicitly viewed the payment to Stormy Daniels as political, even suggesting that it delayed paying her until after the election, at which point it wouldn’t matter if her allegations of an affair came out. (Election lawyer Rick Hasen wrote, “Factually, to turn a campaign finance violation into a criminal one, prosecutors would have to prove that Trump knew he was violating campaign finance laws and did so willfully. Proving intent can always be tricky.”)

Cohen pleaded guilty to federal campaign finance charges, and Bragg can rely on that alone because state law does not appear to require that the underlying crime be committed by the same individual who is charged, Ryan said. He added that the new information provides further support that Cohen’s guilty plea was appropriate.

Ryan said that Bragg will eventually have to make a clear case about what the underlying crimes are, because without that element, the case falls apart.

“I don’t know the degree to which the statement of facts needs to be specific,” he said. “They will eventually need to prove this in a trial.”

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