No. of Recommendations: 7
That's assuming the judge doesn't just throw it out. You can pay off a pron star and have her sign an NDA so your wife doesn't find out; that's not illegal.
That is true. However, what's not legal is creating false business records to hide the fact that you paid off a pron star.
Had DJT actually retained a lawyer to negotiate an NDA with her, and then paid her the $130K and paid the lawyer for his services, then there would be no violation. But that's not what he did. Instead, he had Cohen pay the $130K out of pocket, had Cohen pretend that there was a fictional retainer agreement covering that matter (where none existed), and then paid Cohen monthly with invoices and checks that were labeled as payment for legal services (where none were provided).
That's actually a pretty cut and dried instance of falsifying business records. There doesn't seem to be any dispute that Trump knowingly participated in an effort to create a false paper trail for these payments so that there would be no record of the actual transaction (a payment to Daniels). You're allowed to try to keep your pron star affairs secret; you're clearly not allowed to create fictitious business records to do it. Which is why even some critics of the prosecution aren't basing their criticism on the idea that DJT didn't break the law. Bragg could probably prove misdemeanor falsifying business records from just the documents.
The stretch is in elevating that from a misdemeanor to a felony. To be a felony, falsifying business records has to be in furtherance of committing a crime. Bragg has pointed to campaign finance violations, both state and federal....but there he's out on more of a limb. Now he has to prove more than just that DJT falsified these records - he has to prove why they were falsified, for what purpose. And there he'll be relying on the testimony of Cohen and someone from the Enquirer (not sure who) to talk about Trump's statements.
That additional element is vulnerable on the facts and the law. On the law, it's not entirely clear that the NY Penal Code includes federal crimes for the higher class of business record crime. Nor is it entirely clear that making expenditures for two plausible purposes constitutes an unlawful campaign contribution. And on the facts, Cohen's a pretty damaged witness (having been convicted of a crime of dishonesty), and it's not clear what they've got on the Enquirer side.
The upshot? Trump almost certainly committed a misdemeanor. He may not have committed a felony - and even if he did, it will be hard to prove it.
