There’s a very real risk that the New York indictment of Donald Trump will end in an anticlimax. It is unclear that the felony statute that Trump is accused of violating actually applies to him, reports Vox. The indictment charges Trump with 34 separate counts of falsifying business records in the first degree, a felony. A separate document laying out the factual basis for Bragg’s allegations against Trump points to a complicated web of arrangements between Trump, his former lawyer Michael Cohen and David Pecker, the CEO of American Media, which publishes the National Enquirer. Bragg alleges that these men worked together to identify two women who allegedly had sex with Trump, and to pay them to remain silent. According to Bragg, Trump paid Cohen $420,000 in 2017, much of which was intended to reimburse Cohen for the payment to Daniels. The felony counts arise out of allegedly false entries that Trump made in various business records to make the payment to Daniels appear to be ordinary legal expenses paid to Cohen.
Bragg built his case on an exceedingly uncertain legal theory. Even if Trump did the things he’s accused of, it’s not clear Bragg can legally charge Trump for them under the felony version of New York’s false records law. That key legal question has never been resolved by any New York appellate court in the state of New York. It is not clear that Bragg is allowed to point to a federal crime in order to charge Trump under the New York state law. Even if Bragg’s legal team convinces New York courts that this prosecution may move forward, there is also a very real danger that the U.S. Supreme Court, with its GOP-appointed supermajority, could decide that it needs to weigh in on whether Trump should be shielded from this prosecution. The Supreme Court has long held, under a doctrine known as the “rule of lenity,” that “fair warning should be given to the world, in language that the common world will understand, of what the law intends to do if a certain line is passed.” When the meaning of a criminal statute is unclear, the Constitution sometimes requires that statute to be read narrowly because an unclear criminal law did not give potential defendants “fair warning” that their conduct was illegal. Bragg, has built one of the most controversial and high-profile criminal cases in history upon the most uncertain of foundations.