ANALYSIS: You’ve Heard of the Legal Cases Against Trump, But Do They Actually Have Merit?

News Analysis

Last week’s politicized indictment of former president Donald Trump was the latest in a yearslong effort to target him that began with the Hillary Clinton presidential campaign’s fabricated Russia collusion plot in 2016.

But it is not the only legal case Trump is dealing with. There are at least three additional ongoing investigations that could result in further indictments.

There’s a state case in Georgia that is being pushed by a local prosecutor, Fani Willis of Fulton County, and then there are two cases involving special counsel Jack Smith. These are federal cases, the first of which relates to Trump’s alleged wrongdoing on Jan. 6, 2021, and the second having to do with Trump retaining documents from his presidency, which—allegedly—he was supposed to have returned when he left the White House.

Just a quick word on pardons before we dive into these cases. Only the federal cases are subject to presidential pardons. The New York and Georgia cases are subject to pardons from the respective governors of those states.

New York Case

Last week Trump was arraigned by Manhattan District Attorney Alvin Bragg on 34 counts of making false business entries in furtherance of some other, unnamed crime.

Let’s try and break it down. The fact that there are 34 counts means nothing whatsoever other than that the district attorney inflated one count into 34 counts.

That one count pertains to events in 2016, when Trump’s then-lawyer, Michael Cohen, allegedly paid porn star Stormy Daniels $130,000 in hush money, which was then repaid to Cohen by Trump. What Bragg did is divide the $130,000 repayment into 34 separate counts. The trick he used is that he charged each monthly payment as a separate offense, even though they all pertain to the same transaction.

He further subdivided each payment into three separate offenses, that being the invoicing, the entry into the business records, and the actual payment. By doing so, anyone, in theory, could create as many crimes as they want—and that’s exactly what happened, because the DA’s office knew that the media would run the “34 counts” headlines that would sound more impressive than if it were just one.

So then what about the substance of the charge, irrespective of whether it’s one or broken up into 34?

The charges of “Falsifying Business Records” relate to bookkeeping records of an alleged hush money payment of $130,000 to Daniels. Bragg alleges that Trump “made and caused false” entries in the business records of enterprises “kept and maintained by the Trump Organization.” Trump is said to have done this with “intent to defraud and intent to commit another crime and aid and conceal the commission” of that crime.

The first problem with that is since Trump was president at the time that this allegedly happened, it’s highly unlikely he was in New York telling an accountant how exactly to file the entries.

Problem number two, which is a much bigger problem, is that in order for the false business records charge to be a felony, instead of just a minor slap on the wrist, it needs to be attached to another crime. But the DA does not say what this other supposed crime is.

Bragg alludes to federal election crimes in one of the documents he filed but doesn’t specify that that is what he meant, nor does he name any specific offense. In other words, the alleged fraud is bootstrapped onto a mysterious underlying crime that remains unspecified. Bragg himself confirmed that—according to him, he does not need to specify an offense: “The indictment doesn’t specify because the law does not so require” he wrote.

While it is unclear what law Bragg is talking about, the Sixth Amendment guarantees defendants’ rights, including the right to be told the exact nature of the charges and evidence. That’s obviously not the case here.

In simple terms, it appears Bragg made something up, without telling the public or the defendant what it is, in order to charge Trump with a felony, which he couldn’t have done without making something up.

Then there’s the third problem. Bragg claims that the business records are Trump Organization records. But Trump handed over the reins of his company to his sons before he became president. And the entries were made on Trump’s personal ledger–not the Trump Organization’s ledger.

In fact, as Bragg’s indictment admits, all checks that comprise the $130,000 payment were from Trump’s personal money, not company money. In total, there were 11 checks, nine of which were personal checks and two that came from a personal revocable trust. Predictably, the media collectively misreported this fact, instead claiming that the money had come from the Trump Organization. So Bragg will need to explain how exactly he supposes that the transaction affected the business records of the “Trump Organization.”

Then there’s the big picture, which is that the entire case is solely based on the say-so of a convicted perjurer, Michael Cohen. Cohen’s story has changed over time, from having paid Daniels out of the goodness of his heart without telling anyone to Trump having masterminded everything.

Whatever the truth, however, it’s not a crime to pay someone hush money, nor is it a crime to use your personal funds to give someone like Cohen money.

Georgia Case

The next case we’re probably going to hear more about is the election interference case out of Fulton County, Georgia. Recall that there were allegations of all kinds of shenanigans in the county in the 2020 presidential election.

Trump then, probably unwisely, called the secretary of state of Georgia, Brad Raffenperger, to demand that the situation be fixed. Given that Trump lost Georgia by only about 11,000 votes, Trump’s efforts were understandable. But they backfired when Raffensperger—who is anything but a Trump fan—had the conversation recorded and then leaked the tape.

While it’s true that Trump, likely unwisely, used the loose term, “I just want to find 11,780 votes,”  the media never mentions that the statement was immediately followed by the words “which is one more than we have because we won the state.”

More importantly, the entire conversation on Trump’s part is littered with references to how he was cheated in Georgia—allegations of false signature matching, forged ballots, ballot dumps, shredded ballots, machines being removed, and on and on. The point is not that Trump is right or not right about those claims, only that he explained why he thought that he had legally obtained far more than the missing 11,000 signatures.

Because of this, the whole case immediately becomes a farce because Trump was well within his rights to express his criticisms of what happened in Georgia. We also know that the jury foreperson in the Georgia case, who gave interviews on national television, appears unserious and influenced by bias.

So perhaps it is for these reasons that local prosecutor Fani Willis is now allegedly looking at RICO charges as a means of saving her case. RICO, or Racketeer Influenced and Corrupt Organizations, can be used as a catch-all law to concoct all kinds of charges.

Apparently, Willis wants to use it to drag former New York Mayor and Trump lawyer Rudy Giuliani and Georgia Republican Party chairman David Shafer into the case. In other words, she might want to claim that the three of them conspired to overturn the election results.

Jan. 6 Investigation

That leaves the special counsel cases being investigated by Jack Smith. First, there is the issue as it relates to the events of Jan. 6, 2021.

While Trump has been acquitted by the Senate of inciting an insurrection, this has not stopped Smith from taking up the case.

However, just like with the Raffensperger call, it’s difficult to see any crime in what Trump did on Jan. 6.  Whether you agree with Trump or not, his speech before the events at the Capitol is constitutionally protected. He did not incite imminent violence. He said the exact opposite: “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”

In addition, the Jan. 6  committee already dug into every possible angle on this, but came up empty-handed.

Mar-a-Lago Documents Case

So that leaves only the Mar-a-Lago documents case.

The fact that Trump had some documents at his home that he allegedly wasn’t supposed to have isn’t going to be a huge issue because President Joe Biden would have to be charged with the same offenses, given his own document scandal.

Trump has the added benefit of being able to claim that he had declassified the documents—which Biden, as vice president, cannot claim. It also can’t be an Espionage Act issue since the Espionage Act does not prohibit the retention of classified documents.

So that leaves only one issue, which is a potential obstruction of justice charge. And this is the only issue that might have some legal teeth, most likely not for Trump but perhaps for one of his lawyers.

What happened was that the DOJ demanded—via subpoena—that Trump turn over any documents “marked” classified. Not classified documents, but marked classified. In other words, any documents that happened to have any classification markings on them, irrespective of their actual classification status, were covered by the subpoena. As we now know, not all such documents were turned over and some were later found during the Aug. 8, 2022, FBI raid at Mar-a-Lago.

So Jack Smith is reportedly trying to tie that failure to Trump. Now did Trump personally tell his lawyers not to turn everything over as per the subpoena? Perhaps he wanted to keep some memorabilia and thought there would never be a raid. Anything is possible, but that does seem like a pretty big stretch. The lawyer concerned, Evan Corcoran, recently appeared before Smith’s grand jury. We don’t know what he said.

Did Corcoran throw Trump under the bus, like Michael Cohen did years earlier? Again, that seems very unlikely.

So there you have it. Those are the Trump cases that appear to not amount to much. However, given that this is Trump and the years of effort to target him, it wouldn’t be surprising if more cases pop up.