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- Trump was indicted on 34 felony counts by the Manhattan DA's office.
- Legal experts say Trump's team could raise a number of possible defenses.
- They could focus on the indictment, shred Michael Cohen, or beat the drum of political persecution.
Donald Trump became the first US president to face criminal charges this week after being indicted on 34 felony counts of falsifying business records in connection to a $130,000 hush-money payment to the adult film star Stormy Daniels.
Trump is now expected to challenge the charges on several fronts, and his defense will start from a stronger place than you might assume. But if his lawyers are hoping to get the charges dismissed altogether, they'll likely be disappointed, experts say, and the case is almost certainly headed toward a blockbuster trial.
The Manhattan DA's office accused the former president of having "repeatedly and fraudulently falsified New York business records to conceal criminal conduct that hid damaging information from the voting public during the 2016 presidential election."
But prosecutors left one detail out of the indictment that legal experts say will surely be raised by the defense: what other, underlying crime is Trump accused of committing that would justify upgrading the charges against him from misdemeanors to felonies?
Charging document lacks key details
"I think this is really weak," Ty Cobb, who served as White House special counsel during the Trump administration, told Insider. "While some people think it's, you know, tactically brilliant, I think it is highly reflective of the fact that there's just nothing intelligent there in terms of a tightly woven theory, reflected by the omission in the indictment of the alleged other crime. They don't identify it."
Although prosecutors did not go into specifics about underlying crimes in the charging document, Manhattan DA Alvin Bragg laid them out in a news conference after Trump's arraignment.
The first is a potential violation of state election law, which makes it illegal to conspire to promote a candidacy by unlawful means.
The second is a potential violation of federal election law, because the $130,000 hush-money payment to Daniels exceeded the federal campaign contribution cap.
And the third possible crime is in connection to Trump and his then-lawyer Michael Cohen's alleged "catch-and-kill" scheme with the publisher American Media Inc. before the 2016 election.
Stan Brand, a former House general counsel and longtime attorney, told Insider that he believes "the basic theory is flawed and subject to legal challenge on its face."
Of the alleged state law violations, Brand said that "these are misdemeanors under New York law, and the only way you get to felonies is by coupling it with another crime."
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.
"To the extent that is based on federal law, I don't know that a state can do that," Brand said. "After all, it was a federal election."
"The prosecution is boxed in at this stage of the game," Cobb said. "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."
'Selective or vindictive prosecution'
Kevin O'Brien, a former federal prosecutor who specializes in white-collar criminal defense, told Insider that Trump's legal team will also likely accuse Bragg's office of political persecution.
Indeed, the former president himself has beat that drum for years, alleging that the myriad state and federal criminal investigations he faced — the DA's case, the Mueller investigation, the January 6 probe, the DOJ's classified documents inquiry, to name a few — are the result of a Democrat-led conspiracy to remove him from power and stop him from running for office again.
Cobb said he believes Trump's allegations of persecution have some merit and that the defense could accuse the DA's team of "selective or vindictive prosecution."
"Would anybody else in America not named Donald J. Trump have been charged under these circumstances?" Cobb said. "And the answer is clearly no."
A laser focus on Cohen's credibility
Trump's team will also likely look to shred Cohen's credibility as a witness for the prosecution. He pleaded guilty in 2018 to several crimes in connection to the hush-money payment, including tax evasion, bank fraud, and campaign finance violations. Cohen has since become one of Trump's most prominent critics and has cooperated with a number of criminal and civil investigations into his former boss.
Trump's lawyers have indicated that they'll try to get the case dismissed. But legal experts say that, whatever the flaws in the indictment itself might be, the case will almost certainly go to trial.
"I think there's enough there to get the indictment through motions to dismiss," O'Brien said of the charges. "The case will go forward."
Shanlon Wu, a former federal prosecutor, also noted that the fact that the indictment itself is "bare bones" would make it harder for the case to be dismissed on its face.
"I think that this is going to be a very strong case, factually, to a jury," Wu said. But he added that some of the possible defects in the charging document could make it easier for Trump to appeal a possible conviction.
"The indictment itself is boilerplate," Trump attorney Todd Blanche told reporters on Tuesday. "It's really disappointing. It's sad, and we'll fight it."