It took a jury two days to find former president Donald Trump guilty of all 34 counts of falsifying business records in the first degree, proving that Manhattan District Attorney Alvin Bragg’s somewhat risky approach to the prosecuting the hush money case was a sound choice.
Soon after Bragg’s office brought the first indictment against Trump in April 2023, three other felony indictments were returned in three other jurisdictions: Florida, Georgia and the District of Columbia. As the cases wound their way through their respective state and federal court systems, the expectation was that Trump’s D.C. federal election interference case would go to trial before any of the others. Many were therefore surprised when it was announced that Bragg’s case would be the first to go. And the (somewhat delayed) scrutiny into the New York election interference case kicked into overdrive.
It’s the added element of the “another crime” that raised eyebrows.
When the indictment was unsealed in April 2023, it revealed 34 felony counts of falsifying business records in the first degree, in violation of New York Penal Law, Section 17-152. It’s important to take a minute to digest what the prosecution had to prove, beyond a reasonable doubt: Trump, with the intent to defraud, made (or caused to be made) false entries in an enterprise’s business records, and his “intent to defraud included an intent to commit another crime or to aid or conceal the commission thereof.” What is the other crime that the prosecution said Trump intended to commit or to aid or conceal the commission of? According to Assistant District Attorney Joshua Steinglass, that would be New York Election Law Section 17-152: “Conspiracy to promote or prevent election. Any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means.”
The Manhattan DA’s office has prosecuted a number of falsification of business records cases. These are usually straightforward, run-of-the-mill paper crimes. Bragg has even referenced them as the “bread and butter” of his office’s white-collar work. But it’s the added element of the “another crime” that raised eyebrows. And this is the heart of the novel legal theory that Bragg chose to employ in this trial. The Washington Post reviewed the New York State Law Reporting Bureau as far back as 2000 for any relevant case law regarding this specific statute. The report found “two entries in which a judge issued legal opinions on the statute. Both were from [Judge Juan] Merchan last year in rejecting Trump’s motions to have the case dismissed.” That’s how rarely Section 17-152 is prosecuted in New York. And that fact makes Bragg’s decision to primarily premise the prosecution of a former president of the United States on that statute even more novel.
Bragg is an experienced prosecutor. He graduated from Harvard Law School, clerked for a federal judge, worked in the New York attorney general’s office as a federal prosecutor in the Southern District of New York, and was a law professor at New York Law School. While at the SDNY, his case focus was on fraud and money laundering cases, as well as public corruption. He knows his way around the courtroom and is no stranger to Trump prosecutions: He led the team at the AG’s office that successfully prosecuted the Trump Foundation, for which it was dissolved and Trump made to pay $2 million in restitution.
Bragg had the right combination of book smarts and street smarts to bring this indictment against Trump, and the wisdom to see this case for what it truly was. In an interview with WNYC, he declared: “The core is not money for sex. … it’s about conspiring to corrupt a presidential election.”
As you may recall, Bragg’s predecessor, Cyrus Vance Jr., began investigating Trump as far back as 2019. Vance has advised that his investigation began in and around the same time as that of the Southern District of New York. In fact, he says that the SDNY told him to stand down, which he did for over a year. Vance ultimately decided not to prosecute Trump — or any of his confederates — on any charges. One reason: due to concerns about “novel issues around using the false statements statute in connection with committing a crime that violates federal election laws.” Vance did indict, in July 2021, former Trump Organization CFO Allen Weisselberg, the Trump Corp. (doing business as Trump Organization) and the Trump Payroll Corp. (doing business as Trump Organization) on, among other offenses, charges of criminal tax fraud, grand larceny and falsification of business records in the first degree. That prosecution resulted in a guilty plea to perjury from Weisselberg and a guilty verdict after trial for the remaining defendants.
Initially, Bragg, himself, showed doubts about pursuing a prosecution.
Initially, Bragg, himself, showed doubts about pursuing a prosecution. Two top prosecutors, Carey Dunne and Mark Pomerantz, who were brought in by Vance to run the Trump investigation and stayed on when Bragg took the reins, abruptly resigned in early 2022. Pomerantz, in his resignation letter that was made public, harshly criticized Bragg for his inaction. Pomerantz said in the letter that he believed that Trump was “guilty of numerous felony violations” and that Bragg’s decision not to prosecute Trump was “contrary to the public interest.” Fast-forward 13 months, and Trump was indicted by Bragg.
The inside baseball on prosecuting cases is that even if the facts meet all of the elements of the crime, and even if there is a good faith basis to prosecute, that doesn’t necessarily mean there aren’t other factors considered before deciding to move forward with a case. Part of that calculation includes a likelihood of success with a jury. In this instance, Bragg and his prosecution team must have considered if there was a chance of jury nullification and if the jury would be able to understand the theory of the prosecution and care enough about this case. With a guilty verdict now reached, I guess we know the answer.
Katie S. Phang
Katie S. Phang is the host of “The Katie Phang Show,” which airs Saturdays and Sundays at 8 a.m. ET on MSNBC. She is a legal contributor for NBC News and MSNBC based in Miami. She leverages her significant trial attorney experience to provide analysis and commentary on the latest legal issues.
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