The sheer number of counts–34 felonies–filed against former President Donald Trump is surprising and appears to be a classic example of a prosecutor “overcharging” a defendant, legal analysts said on April 4 in the aftermath of historic criminal proceedings against the 2024 presidential candidate.
New York prosecutors alleged that Trump directed his then-lawyer Michael Cohen to pay $130,000 in hush money to adult film actress Stormy Daniels weeks before the 2016 presidential election. Trump then illegally reimbursed Cohen for the payment under the guise of a monthly retainer for legal services, court filings allege, leading to 34 false entries in New York business records.
Manhattan District Attorney Alvin Bragg said in a statement that 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.”
In court, Trump pleaded not guilty to the 34 felony counts of falsification of business records. Each count carries one to five years in prison. The former president has vociferously maintained his innocence, claiming Bragg’s case is a partisan “witch hunt.”
John Banzhaf III, a professor emeritus at George Washington University Law School, said he wouldn’t be surprised if the seemingly excessive charges will induce jurors to acquit Trump. They may see the whole case as unfair.
“I think even a jury which may not have too much legal expertise is going to look over at this and say, ‘Well, this is repetitious,’” Banzhaf told The Epoch Times.
He used this analogy: If a person was accused of a bank robbery, instead of charging him with robbing one bank, the prosecutor would load up 33 other charges, such as “he crossed the street against the red light, was double parked, shot off his gun, and he carried a gun when he shouldn’t,” Banzhaf said.
“But, you know, to most people, they would say that was one crime, one bank robbery.”
Banzhaf, ironically, was the attorney who filed a complaint against Trump in Georgia, leading to an investigation there for alleged interference in the 2020 presidential election.
Interplay With Other Cases
That investigation is still ongoing, and Banzhaf thinks the New York case could have an adverse effect on the Georgia case. After dozens of charges were filed against Trump in New York, the notion that more could be piled on in Georgia or elsewhere can add to the impression that Trump is a political target, which doesn’t sit well with jurors, Banzhaf said.
That’s why he thinks there’s a risk of “jury nullification,” in which jurors rebel against a seemingly unfair prosecution regardless of the evidence.
Mike Allen, a former judge and prosecutor in Ohio, said the New York case might not even make it to trial.
“I think there’s a very good chance” that Trump’s team will prevail on a motion to dismiss, “which will be filed post-haste,” Allen told The Epoch Times.
Trump’s lawyer, Joe Tacopina, has already alluded to the filing of several motions to dismiss, including one based on prosecutorial misconduct and selective prosecution.
Cobbled-Together Legal Theory
Allen also thinks the case, on its face, seems “weak,” because it’s “a mishmash” of statutes—the combining of state falsification-of-records charges with federal campaign finance violations.
The indictment alleges that Trump violated section 175.10 of the New York Penal Code, falsifying business records in the first degree; that charge is repeated 34 times, alleging that Trump repeatedly wrote checks and created inaccurate business records between February and December of 2017.
For the falsification of records charge to be elevated to a felony, New York law states that it must be done “with intent to defraud and intent to commit another crime and aid and conceal the commission thereof.”
The indictment, however, doesn’t specify which additional crime Trump is accused of intending to commit. District Attorney Alvin Bragg, during a news conference after Trump’s appearance, told a reporter that the law doesn’t require him to specify that additional alleged crime.
But when asked what the other crime was, Bragg pointed to New York state election law, which prohibits conspiring to promote a candidacy by unlawful means. He also alluded to Cohen’s 2018 guilty plea to federal campaign finance violations.
Allen, after watching Bragg’s news conference, wasn’t satisfied with the district attorney’s argument on this point.
“In any criminal indictment that I have ever seen where the statute requires ‘other crimes,’ that crime is specified, and spelled out in the indictment,” said Allen, who has decades of legal experience. “It speaks volumes about the strength of his case that he refuses to specify exactly what the other crime is.”
Allen and Banzhaf both said the case could be dismissed because it’s based upon an untested legal theory.
In addition, Banzhaf said Trump’s team will likely argue that a time limit for prosecuting the case has run out. The felony charges carry a statute of limitation of five years and would have expired under normal circumstances—given that the payment was made in 2016, or about seven years ago. But Bragg is expected to use a provision that says the statute of limitations clock is stopped when “the defendant was continuously outside” of the state.
Trump’s attorneys also may argue that Bragg has engaged in “selective prosecution.” Bragg elevated Trump’s misdemeanor allegations to felonies while he routinely has done the reverse with other criminal defendants, smacking of unequal treatment under the law, Banzhaf said.
“If the indictment is dismissed on any grounds … I think it would have a very serious adverse impact” on the Georgia case and other investigations Trump is now facing, Banzhaf said.
No matter how you look at it, the Trump prosecution will leave an indelible stain on American justice, Allen said.
“Not doing this type of thing, blatantly political prosecution, is what separated us from other countries … it prevented us from being a banana republic,” Allen said. “Now, we are … and it is a horrible precedent for our country.”
“I think people are going to remember this date for years to come,” Allen said, adding Trump was right when, in a social media post earlier today, he called this moment in history “surreal.”