Manhattan D.A. Bragg recently indicted and arraigned former president Trump on 34 individual felony counts.  According to statements from "star" grand jury witness and former Trump lawyer Michael Cohen, the matter concerns his payment of $130,000 to Stormy Daniels to buy her silence concerning an alleged 2006 affair —  which she cannot prove and later denied in 2018.  Trump reimbursed Cohen just before the 2016 election and apparently labeled it as legal expenses in his business records rather than "hush money reimbursement," leading to Bragg's business records misdemeanor charge.  No less a legal scholar than Alan Dershowitz labeled this as "utter nonsense."

D.A. Bragg claims that this is the misdemeanor of false business records under New York state law.  He further claims that because this was done with intent to conceal a second crime, it becomes a felony — in fact, 34 felonies, as the indictment shows, each under the same identical N.Y. state law.

These indictments are fatally defective for three separate reasons, any one of which should get the indictments dismissed before trial.

1. Charging 34 separate indictments from what is essentially one event violates the very clear (in New York and most other states) criminal doctrine of multiplicity.  It is a pretrial form of the trial/post-trial proscription on double jeopardy provided by the 5th Amendment as extended to the states by the 14th Amendment.  The multiplicity doctrine simply holds that an alleged criminal indictment concerning events that are reasonably contiguous (for example, in time or space — here, both) cannot be broken up into separate indictments, each separately risking a jury's guilty finding.  The charged indictments are defectively multiplicitous under clear New York case law on the doctrine.

2. The felonies were created via the additional allegation of "false records with intent to conceal another crime."  But that second alleged crime is not specified in any of the 34 felony indictments.  That is a clear violation of the 6th Amendment, which requires that an accused be informed of the "nature and cause of the accusation."  There were mutterings in Bragg's post-arraignment press conference that the second crime could be a couple of different things.

a. A violation of election laws.  Since 2016 was a presidential election, federal rather than state law governs.  This raises a murky jurisdictional question about whether D.A. Bragg could use a federal "crime" for state law purposes.  But the jurisdictional question need not be addressed because we already have the answer: there was no crime.  Both the head of the Federal Elections Commission and the then–acting head of DoJ say the question was actively investigated at the time and that there was no election issue found, let alone a criminal election issue.

b. A violation of some state income tax law.  By law, the president's federal income tax filings are audited each year of the presidency, and the audit result is then filed with the National Archives.  For Trump, this would have been his 2017 filing for 2016.  The IRS found no problems; there was no refile.  That is relevant for his New York state filing, because New York expressly adopts the federal definition of adjusted gross income (AGM) and the federal definitions of allowable itemized deductions.  There is one express New York variance; the state removes the federal $10,000 cap on state and local tax deductions (SALT).  Since there is no federal tax problem, there can be no state tax problem.

Both (a) and (b) explain why the indictments were mute about the alleged second crime and therefore are constitutionally defective.

3. The New York felony statute of limitations is five years.  The charged events took place about six and a half years before the indictments.  The statute of limitations expired about a year and a half before the indictments were brought.  However, D.A. Brag might claim one of the two express statute of limitations exceptions under New York criminal law.  Neither factually applies

a. If the indicted individual was continuously outside New York jurisdiction for five years, the limitation can be extended.  But Trump provably was not continuously outside New York during the five years since the 2016 election.  He traveled to the U.N. in Manhattan to address the U.N. in 2018, 2019, and 2020.

b. If the indicted individual's whereabouts remain unknown during the five years.  But Trump's whereabouts were known at all times — primarily at the White House or at Mar-a-Lago.

There is a separate factor to be considered.  Bragg expressly campaigned for Manhattan D.A. on the claim that he was the best candidate "to get Trump."  That is express evidence of malice aforethought, and therefore of the resulting prosecutorial misconduct that all three indictment defects evidence.  He should be disbarred after the indictments are dismissed.

A final thought: It is possible that the trial court judge, who had previously shown animus to Trump, would fail to dismiss or recuse.  But each of the three defects above is directly appealable pretrial.  And at least one of the three defects is also a violation of the federal Constitution, so it gets to federal court also if necessary.

Rud Istvan graduated summa cum laude from Harvard College in 1972, then from the Harvard Joint Law School/Business School program in 1976.  He was then admitted to the Massachusetts Bar.  After a long multi-company career practicing both business and law, he is now happily retired with time to do research on matters of interest.

Photo credit: YouTube screen grab (cropped).