AP Photo/Seth Wenig
- The Manhattan DA was sharply criticized for omitting key details that would justify upgrading the charges from misdemeanors to felonies.
- Bragg's approach appears to be a deliberate strategy to choose among four different secondary crimes later on.
- A 30-year veteran of the DA's office told Insider that Bragg will lay the specifics out in a so-called "bill of particulars" down the road.
Shortly after the Manhattan district attorney's office unsealed its 34-count felony indictment against former President Donald Trump, questions started pouring in.
To prove that Trump committed felony falsification of business records, as opposed to a misdemeanor, state prosecutors would need to show that he did so in order to commit or cover up a second crime.
And former prosecutors — some of them veterans of the Manhattan DA's office — wondered: why didn't DA Alvin Bragg include any information about a secondary crime in such a high-stakes case?
One 30-year veteran of the DA's office said Bragg's approach, however, is less an omission than a deliberate strategy. It's an approach that Diana Florence, who worked in the DA's office for three decades as a prosecutor focusing on white-collar crime, said was "100 percent the right way to charge this."
"When you have an indictment, anything you put in the indictment, you must prove it," Florence, who ran against Bragg for DA in 2021, told Insider in an interview. She added that so-called "speaking indictments" in cases like Trump's are very rare — they're generally more common in conspiracy and racketeering cases that require a long narrative of alleged criminal acts.
Indeed, when reporters asked Bragg about the underlying crimes at a news conference following Trump's arraignment, the DA said his office chose not to include those details because it wasn't required by law to do so.
"We are not going to go into our deliberative process on what was brought," the DA said. "The charges that were brought were the ones that were brought. The evidence and the law is the basis for those decisions."
Bragg laid out 4 alleged underlying crimes in post-arraignment presser
Though Bragg didn't include the specifics of Trump's alleged underlying crimes in the charging documents, he laid them out in his post-arraignment news conference.
Trump's alleged scheme — coordinating a $130,000 hush-money payment to the adult film star Stormy Daniels — violated New York state law, "which makes it a crime to conspire to promote a candidacy by unlawful means," Bragg said.
Second, the alleged scheme violated federal election laws because the hush-money payment "exceeded the federal campaign contribution cap," Bragg said.
Third, the DA alleged that Trump also broke New York laws when he and his then-lawyer Michael Cohen worked with the publisher American Media Inc. on a "catch-and-kill" scheme, and AMI falsely characterized payments made as part of the scheme in its accounting books.
The fourth underlying crime alleged by Bragg related to false statements "that were planned to be made to tax authorities."
Bragg elaborated on that alleged underlying falsehood in a statement of facts included as an addendum to the indictment. Cohen had admitted to acting as a bag man for the hush-money payment, wiring his own personal funds to Daniels' lawyer less than two weeks before the 2016 election.
The tax falsehood allegedly arose the following year. That's when Allen Weisselberg, then the Trump Organization's chief bookkeeper, characterized Trump's repayment of the hush money as taxable income for Cohen, instead of as the reimbursement it actually was, Bragg's office alleged in the statement of facts.
Florence told Insider that "these underlying misdemeanors are elements of the crime of falsifying business records in the first degree" — which is what Trump was ultimately charged with — "but the law does not require you to name them."
"Though Bragg doesn't have to name them now, he will down the road," she said. "Now, you can't ride this train forever, right? There's a point where you have to pick a theory" and inform the defense that prosecutors allege that business records were falsified to conceal a specific, underlying tax or election crime, which Bragg said Tuesday that his office will do.
Those will be put on paper when the DA submits to the defense a so-called "bill of particulars," Florence said.
'The case will go forward'
Trump's defense team, for its part, is expected to try to get the case dismissed.
"The indictment itself is boilerplate," Trump lawyer Todd Blanche told reporters after the ex-president's arraignment. "It's really disappointing. It's sad, and we'll fight it."
Legal experts recently told Insider that, based on their public statements and media reporting, Trump's attorneys will likely roll out three key defense strategies: hammering Bragg for not including any underlying crimes in the indictment itself; alleging that Bragg's office is bringing a selective and politically motivated case; and shredding Cohen's credibility as a witness given that he's an admitted felon.
"The prosecution is boxed in at this stage of the game," Ty Cobb, who served as White House special counsel during the Trump administration, told Insider. "They've got the indictment, they have to defend it. They're gonna be totally reactive and the strategic opportunities available to the defense are pretty extreme."
But experts said that, whatever the flaws in the charging document may be, Trump's team likely won't be successful in getting the case dismissed, which means the former president will be headed toward a blockbuster trial.
"I think there's enough there to get the indictment through motions to dismiss," Kevin O'Brien, a former federal prosecutor who specializes in white-collar criminal defense, said of the charges. "The case will go forward."