Legal Commentators (Looking at You, Sarah Isgur): Please Learn the Basic Theories of the Bragg Prosecution

The case is coming up soon. It's time to stop repeating incorrect information about it.

Above: The recipient of a $130,000 payoff from our once and future president. Image courtesy of DonkeyHotey.

On March 25, two weeks from today, a criminal trial of Donald J. Trump will commence in New York state court, for falsifying business records to cover up various crimes.

Legal commentators are in agreement that it’s the weakest of the four pending prosecutions against Trump. I agree. But one of my favorite legal commentators—Sarah Isgur of The Dispatch—keeps saying things about the Bragg prosecution that (to me, at least) appear to be wrong.

Today’s newsletter is an effort to correct Isgur, because a) The Dispatch is my favorite site; b) everyone at The Dispatch defers to Isgur’s legal analysis; c) her analysis of the Bragg prosecution to which they are deferring appears to be incorrect; d) she has repeated the seemingly incorrect information many times; and e) the Bragg prosecution is coming up soon—and I am hoping Isgur does not repeat, but rather corrects, the apparent mistakes she has made in analyzing the Bragg prosecution.

I will focus particularly on the March 1, 2024 episode of The Dispatch Podcast, which you can access here. It is titled “The Trials of Donald Trump, Explained,” and features Isgur, her co-author of The Collision newsletter Mike Warren, and Dispatch editor-in-chief Jonah Goldberg. I believe Isgur makes two clear errors in the podcast, one of which she has made many times before. As usual, I’ll start with a quick summary overview, and give the detail below.

In the March 1, 2024 Dispatch Podcast, Isgur says of the falsification of records felony that it becomes a felony only when you can “attach” another crime to it (i.e. provide a crime that was perpetrated or concealed by the falsification of business records), and “the only other crime they could attach to it is a federal crime that the Department of Justice decided not to prosecute Trump for.”

As I will explain in detail below, that appears to me to be inaccurate. There are at least two other potential crimes—both state crimes—that Bragg has stated in writing that he intends to use as underlying crimes for the falsification of records charge. These include 1) a violation of New York tax fraud laws, and 2) a violation of New York state election law. The trial judge has ruled that these are both viable theories that Bragg’s prosecutors can argue to the jury.

In addition, even when it comes to the federal campaign finance charge that Isgur is referencing in the quote above, it’s not true that Bragg is necessarily relying on a charge DOJ declined to bring. Because—as I have said many times before, and as Isgur has previously acknowledged—Bragg could be relying on the campaign finance violation by Michael Cohen.

Second, Isgur says that the reason the Department of Justice did not charge Donald Trump with a federal campaign finance violation “is because it’s not a federal crime.” I don’t believe that could possibly be the reason DOJ did not charge Trump—because DOJ did charge Cohen with that crime. And Cohen pled to it. Now, reasonable people can disagree about whether the federal campaign charge that Cohen pled to is really a crime, and the importance we should attach to Cohen’s guilty plea. But however you come down on those issues, we all should be able to agree that DOJ believed that the crime they charged Cohen with . . . was a crime. If DOJ didn’t think it was a crime, they wouldn’t have charged Cohen. So it appears incorrect for Isgur to say that the reason DOJ didn’t charge Trump is because “it’s not a federal crime.”

I hope Isgur issues clear corrections on these two apparent errors—or explains why they are not errors, despite all appearances. She has issued corrections in response to criticism of mine before. But as I will explain in the section for paid subscribers, there has been at least one time where she failed to correct errors in every venue where she made them. On another recent occasion, she issued a sort of sub silentio correction where she ended up providing listeners with correct information in a subsequent episode, but did not acknowledge having previously made the opposite, and incorrect, assertion. Obviously, I think the forthright approach is the best one, and I hope she adopts that approach here.

Error #1: Claiming That Bragg Is Relying Only on “A Federal Crime that the Department of Justice Decided Not to Prosecute Trump For”

Isgur’s first apparent error occurs at 21:18 in the aforementioned March 1, 2024 Dispatch Podcast. Jonah Goldberg asks Isgur how she thinks the upcoming Bragg prosecution will play out, at which point the following commentary occurs:

ISGUR: OK, so we’ve got a legal problem here, which is, this is going to be a New York state criminal case and I am not a New York state lawyer. So, to the extent that there are specific state rules and laws that might affect the timing of this or how it goes, I’m not gonna know ‘em, and I just want to be really up front about that.

But I do understand the case. And just to summarize some of the problems: remember, basically, what they’re charging Trump with is a misdemeanor, but the statute of limitations on the misdemeanor ran out. So, they needed to then have the same thing become a felony.

And the way that you get it to become a felony is by attaching another crime to it? And the only other crime they could attach to it was a federal crime that the Department of Justice decided not to prosecute Trump for.

The part in bold appears to me to be clearly incorrect.

Regular readers will quickly realize that this is a point I have made on this Substack many many many times before. And that Sarah Isgur has acknowledged before.

But today I won’t just repeat things I have often said before. For regular readers, that is boring. Instead, I will spend some time and effort below detailing the specifics of Bragg’s other theories, so you can see with crystal clarity why I believe that it is false to say, as Isgur does, that “the only other crime they could attach to it is a federal crime that the Department of Justice decided not to prosecute Trump for.”

The most relevant document I will rely on, which I linked in my February 27 Substack post, is the February 15, 2024 decision by Hon. Juan M. Merchan, the trial judge in the Bragg prosecution, denying Donald Trump’s motions to dismiss the case. As I noted in my February 15 post, “the prosecution is not relying simply on an argument that Donald Trump committed a federal campaign finance violation (the charge DOJ declined to bring). They submitted four different theories to the trial judge.” I quoted those theories as follows (what follows is a direct quote from Judge Merchan’s decision):

The four theories being violations of the: (1) Federal Election Campaign Act ("FECA"); (2) N.Y. Election Law § 17-152; (3) Tax Law §§ 1801(a)(3), 1802: and (4) Defendant's intent to violate PL §§ 175.05 and 175.10 by intending to commit or conceal the falsification of other business records.

The first of those four theories is the one to which Sarah Isgur refers when she says “the only other crime they could attach to it is a federal crime that the Department of Justice decided not to prosecute Trump for.” But notice that Bragg advanced three others.

A brief one-paragraph aside: as I have explained before and will again briefly explain below, even as to theory #1, Sarah Isgur’s statement appears to be incorrect . . . because the prosecutors have the ability to use (and have suggested they may use), as an underlying crime, Michael Cohen’s violation of FECA, which DOJ did prosecute. But we will place FECA to one side for the time being. We will also place to one side theory #4, because it is the only theory Judge Merchan said Bragg may not use, because insufficient evidence was submitted to the grand jury as to that theory.

That leaves theories #2 and #3, which I would now like to flesh out for you, so you can see that neither one constitutes “a federal crime that the Department of Justice decided not to prosecute Trump for” (as Isgur claims). I think Theory #3 is clearer than Theory #2—and also, Theory #2 is more easily explained when you first understand Theory #3. So, I will start with Theory #3, which all on its own appears to demonstrate Isgur’s statement to be false.

Theory #3 of an Underlying Crime: A Violation of New York Tax Law, Sections 1801(a)(3) and 1802

Bragg’s third theory is a clear example of a non-federal theory of an underlying crime Trump sought to perpetrate and/or conceal by falsifying business records. That non-federal underlying crime is a violation of New York Tax Law, sections 1801(a)(3) and 1802. At page 12, Judge Merchan gives a brief summary of that theory, explaining that “this theory is premised on evidence introduced to the Grand Jury that when Cohen was reimbursed for the $130,000 payment he made to Daniels, the amount he received was ‘grossed up’ to compensate him for taxes he would have to pay on the reimbursement.”

Judge Merchan explains this theory in more detail at pages 16-17 of his decision. In this section, Judge Merchan upholds the argument that this tax law violation is a valid potential theory of an underlying crime that Trump intended to perpetrate and/or conceal by falsifying business records.

Judge Merchan writes that evidence was presented to the grand jury that Cohen was paid $420,000 “as reimbursement for money he paid Daniels pursuant to the terms of the agreement with Defendant.” The $420,000 sum broke down as follows:

• $130,000 to reimburse Cohen for the money he had paid to Stormy Daniels;

• $60,000 as a bonus for work done for the Trump Organization;

• $50,000 for tech services; and

• $180,000 ”to ensure that Cohen would be made whole after adjusting for income taxes payable.”

Judge Merchan says that the evidence as a whole shows Trump knew Cohen was being reimbursed for the Daniels payoff, as opposed to being paid for legal services—even though the transaction was obviously being reported to New York tax authorities as payment for legal services. Judge Merchan says the grand jury reviewed various items of evidence sufficient to show Trump’s knowledge of the scheme to misrepresent the nature of the payment to state tax officials. In addition to witness testimony, the judge cites documentary evidence, such as handwritten notes from Allen Weisselberg that spelled out the strategy of "grossing up” the amounts to compensate Cohen for the income tax he would have to pay in connection with “legal services” he had not actually performed. Judge Merchan says: “Together with the witness testimony, the Grand Jury could infer that Defendant knew about the grossing up scheme and its purpose.”

So how does this all violate the relevant tax laws? As a wise DDA named Brent Riggs used to say to me whenever I came to him with a legal question: let’s look at the code.

The tax laws alleged to have been violated are N.Y. Tax Law sections 1801(a)(3) and 1802. Sections 1801(a) and 1801(a)(3) define a “tax fraud act” as “willfully engaging in an act or acts or willfully causing another to engage in an act or acts pursuant to which a person . . . knowingly supplies or submits materially false or fraudulent information in connection with any return, audit, investigation, or proceeding or fails to supply information within the time required by or under the provisions of this chapter or any regulation promulgated under this chapter.”

Section 1802 simply says: “A person commits criminal tax fraud in the fifth degree when he or she commits a tax fraud act.  Criminal tax fraud in the fifth degree is a class A misdemeanor.”

Let’s put these two statutory provisions together and summarize their import. Put (somewhat more) simply, you commit a misdemeanor tax fraud—a “tax fraud act”—under New York tax law when you willfully do something, or cause someone else to do something, whereby a person knowingly supplies materially false or fraudulent information to the tax authorities.

You know: like telling tax authorities that a reimbursement for a hush money payoff was actually payment for legal services.

And if you falsify business records to perpetrate or conceal that tax fraud, that is a felony falsification of business records.

In response, someone could argue—and Trump’s lawyers did argue to Judge Merchan—that, in fact, under the People’s theory, Trump & Co. were causing Cohen and the Trump Organization to report even more income than would have been taxable if they had told the tax authorities the truth. So how is the state of New York harmed? asked the Trump lawyers. The judge responded to that argument by saying that “this Court disagrees that the alleged New York State tax violation is of no consequence because the State of New York did not suffer any financial harm. This argument does not require further analysis.”

Frankly, as a reader of the opinion who is not an expert on New York state tax law issues, I would have appreciated further analysis. But even as a non-expert, I can see language in the statute that seems consistent with the judge’s position. For example, section 1801(c) says: “For purposes of this subdivision, the term ‘willfully’ shall be defined to mean acting with either intent to defraud, intent to evade the payment of taxes or intent to avoid a requirement of this chapter.” (My bold emphasis.) Again: I’m not a New York state tax expert—far from it!—but I am going to make an educated guess that one “requirement of this chapter” is that taxpayers make accurate representations to the tax authorities. So even if Trump, the Trump Organization, and Cohen were not trying to “defraud” tax authorities or evade the payment of taxes, they likely acted willfully if they knowingly made false representations to the tax authorities.

By the way, my educated guess appears to have some basis in both state and federal tax law. In other words, I’m not just making this up. The true aficionado of the details of this question is invited to review Bragg’s opposition to Trump’s motion to dismiss at pages 38-39 for more details as to how financial injury to the state is not a requirement for criminal liability for false statements under state or federal law—even false statements that “do not involve underpayment of taxes.”

But regardless of what one finds at the end of that particular legal rabbit hole, one thing is clear.

You can see that this theory has absolutely nothing to do with federal campaign finance laws.

Bragg’s theory here is that Trump, Cohen, the Trump Organization, and various members of the Trump Organization, violated New York state tax laws and falsified business records to perpetrate and/or conceal that crime.

Remember Isgur’s claim: “the only other crime they could attach to it is a federal crime that the Department of Justice decided not to prosecute Trump for.” That appears to be inaccurate. Here we have just discussed, at length, a legal theory as to an underlying crime that is not a federal crime at all, and therefore not a crime that DOJ took a pass on. It’s a state crime. And Judge Merchan says it’s a theory Bragg can take to the jury.

Onto theory #2.

Theory #2: A Violation of State Election Law: N.Y. Election Law 17-152

Bragg’s second theory of an underlying crime Trump sought to perpetrate and/or conceal is a violation of New York Election Law section 17-152, which provides: "Any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto shall be guilty of a misdemeanor.”

I can well imagine that Trump partisans might have a knee-jerk response to citations of this law: namely, that it is pre-empted by federal campaign finance law. That knee-jerk response, however, is wrong. United States District Judge Alvin K. Hellerstein rejected it in his opinion remanding the case to state court, and I thoroughly explained Judge Hellerstein’s pre-emption ruling in my August 23, 2023 Substack newsletter. If you want to know why pre-emption does not apply, read my Substack from that date, or read Judge Hellerstein’s decision . . . or, heck, read both. It’s too detailed an argument to summarize in a few words, but it’s not really a close call. (Judge Merchan reaches the same conclusion in his recent order, at page 16.)

Bragg’s citation of section 17-152 does raise another question: exactly what “unlawful means” are we talking about here? Are the unlawful means limited to federal campaign violations? Or are there other “unlawful means” that (according to Bragg) Trump and his co-conspirators used to promote his election? Judge Merchan’s decision, like Judge Hellerstein’s, is not entirely clear about the exact nature of the “unlawful means” used. But we have some clues.

First, in discussing theory #3, we just discussed one form of “unlawful means,” didn’t we? Namely, misreporting to New York state tax authorities the nature of the payments to Cohen. (That’s why I discussed Theory #3 first!)

Am I just making this up on my own? No, I am not. Does Bragg himself actually cite tax misreporting as one type of “unlawful means” under New York Election Law section 17-152? Yes, he does.

Earlier in the case, Trump was allowed to file for a bill of particulars that would provide more details about the District Attorney’s theory—and Trump did exactly that. On May 16, 2023, Bragg filed his response. At pages 5-6, you can read the District Attorney’s response to the question regarding what “unlawful means” were used in connection with any alleged violation of N.Y. Election Law section 17-152. Various forms of allegedly “unlawful means” are cited there, including (at page 6):

disguising reimbursement payments by doubling them and falsely characterizing them as income for tax reasons . . .

That’s what we just discussed above in connection with theory #3. And the notion that Bragg is relying on the misreporting to state tax authorities of the payments to Cohen is also supported by Bragg’s recent opposition to Trump’s motion to dismiss, in which Bragg, at page 25, addresses the question of the “unlawful means” he alleges Trump used. It is true that, among other cited forms of “unlawful means,” Bragg does cite a violation of FECA “through the unlawful individual and corporate contributions by Cohen, [redacted], and AMI.” But that is not the only form of “unlawful means” that Bragg cites. He also adds:

and (as noted in Points I.C.3 and I.C.4 below) by falsifying the records of other New York enterprises and mischaracterizing the nature of the repayment for tax purposes.

Again, this is the same tax misreporting we discussed above. (The references to “Points I.C.3 and I.C.4 below” include a more detailed discussion of the arguments concerning the misreporting of tax liabilities, together with arguments that relate to theory #4, which the judge has disallowed. By the way, the arguments about tax misreporting note that misreporting federal tax information could also constitute unlawful means.)

This is not necessarily the entire universe of potential unlawful means that could undergird a reliance on Election Law section 17-152. For example, Lisa Rubin has argued that Cohen’s bank fraud also could have constituted a form of unlawful means by which Trump and his co-conspirators promoted his election. The bank fraud also falls within the scope of theories as to which Bragg has put Trump on notice. Bragg’s response to Trump’s request for a bill of particulars (linked above) at page 6 cited another type of “unlawful means”; namely, “multiple admissions of specific crimes by participants, including by guilty pleas to felonies.” It should be remembered that false statements on a bank form in connection with the Daniels payment formed part of the underlying factual basis for Cohen’s plea to various felonies:

The next day, on October 26, 2016, COHEN emailed an incorporating service to obtain the corporate formation documents for another shell corporation, Essential Consultants LLC, which COHEN had incorporated a few days prior.  Later that afternoon, COHEN drew down $131,000 from the fraudulently obtained HELOC and requested that it be deposited into a bank account COHEN had just opened in the name of Essential Consultants.  The next morning, on October 27, 2016, COHEN went to Bank-3 and wired approximately $130,000 from Essential Consultants to Attorney-1.  On the bank form to complete the wire, COHEN falsely indicated that the “purpose of wire being sent” was “retainer.”  On November 1, 2016, COHEN received from Attorney-1 copies of the final, signed confidential settlement agreement and side letter agreement.

COHEN caused and made the payments described herein in order to influence the 2016 presidential election. 

That’s from the federal government’s press release about Cohen’s guilty plea—and given Bragg’s citation of that plea in his response to Trump’s request for a bill of particulars, Cohen’s false statement to a bank is arguably within the scope of what can be considered an “unlawful means” under the New York election law statute. It is also worth noting that Bragg’s recent opposition to Trump’s motion to dismiss also cites, at pages 7-8, Cohen’s false statements in connection with this wire transfer payoff to Daniels.

The important thing to notice about all of this is that, once again, Bragg’s theory here need not rely in any way on federal campaign finance laws. Although those laws do serve as one type of “unlawful means” cited in connection with the New York election statute, they are far from the only unlawful means cited. Bragg has available multiple theories that have nothing to do with federal campaign finance laws. As I have just explained, he can argue that Trump and numerous other individuals used other unlawful means, including taking actions that would result in mischaracterizing payments to tax authorities, and/or making false statements to banks, all to promote Trump’s campaign in violation of a New York state election law. And then, Trump falsified business records to perpetrate and/or conceal that crime, making the falsification of records a felony.

Once again, recall Isgur’s claim: “the only other crime they could attach to it is a federal crime that the Department of Justice decided not to prosecute Trump for.”

That appears to be inaccurate.

Even Theory #1, a Violation of Federal Campaign Finance Laws, Is Not Necessarily Based on a Charge that DOJ Declined to Bring . . . Because It Could Be Based on the Conviction of Michael Cohen

Now we return to theory #1: a violation of FECA (the Federal Election Campaign Act). At least this is an example of a charge Bragg is using that DOJ decided not to prosecute Trump for, right?

Yes . . . and no. DOJ did decline to prosecute Trump for this charge. But Bragg may still rely on a violation of FECA by Michael Cohen.

Regular readers of my newsletter will recall that I have written about this before. if you’re a regular reader of mine, you might actually be getting tired of my making this same point over and over and over. I went over this ground most recently in my February 27, 2024 Substack post, in which (among other things) I took issue with Isgur’s similar claim that Bragg is “using an underlying federal charge that the Department of Justice decided not to bring.” What I said then is equally true today:

But Bragg is relying on many theories. I have pointed out before that Bragg does not have to rely on the theory Isgur is referring to: that Trump himself committed a federal campaign finance violation. It is enough that Trump falsified documents to conceal, say, Michael Cohen’s campaign finance violation—a charge that DOJ did bring, and to which Cohen entered a guilty plea. Isgur knows I have made this point because she has discussed my argument in a podcast and acknowledged that I had a good point. And yet here, she repeats the same exact claim that I have previously refuted.

If you’re interested in the details, I explained in that post (with links) that I had often made this point before; that Isgur had explicitly acknowledged the point and even discussed it in an Advisory Opinions podcast recorded at Harvard Law School; and that this theory is something that has been alluded to in many court filings and opinions, including Judge Hellerstein’s remand decision, Judge Merchan’s recent decision denying Trump’s motions to dismiss, and several filings by Bragg’s office.

I really don’t want to bore regular readers by repeating all of that here for the umpteenth time. That’s why God made hyperlinks and (hopefully) gave you an index finger on your dominant hand with which to click them. At this point, I will merely summarize in bullet point form what I have said before many times:

• It is black-letter law in New York that the underlying crime in a business falsification of records felony does not have to be committed by the defendant.

• Michael Cohen pled to a federal campaign finance violation.

• Obviously that means DOJ brought that charge against Cohen. Duh.

• Trump wanted to conceal Cohen’s campaign finance violation, because revealing it would reveal the scandalous information Trump was trying to hush up.

• Trump falsified business records to do it to conceal Cohen’s campaign finance violation.

• Sarah Isgur knows that, whether she agrees with it or not, this is a potential theory Bragg could use. She has talked about that fact before, publicly.

So, it’s odd that she would assert, in various podcasts and newsletters (The Collision! The Advisory Opinions podcast! The Dispatch Podcast!), that the only underlying charge here is a charge that DOJ declined to bring. She knows that the Cohen campaign finance violation could arguably serve as an underlying crime, and she knows DOJ brought that charge and got a conviction.

By the way: I’m glad that we just hammered home, for the gazillionth time, the fact that DOJ brought this charge against Michael Cohen. Because that will make the next section a lot shorter. And you’re getting tired and looking to wrap this up, aren’t you?

Me too.

Error #2: Claiming That “The Reason The Department of Justice” Did Not Charge Trump with a Campaign Finance Violation Is Because “It’s Not a Federal Crime:”

My discussion of Isgur’s second apparent error—and I do believe it to be an error—should be brief, given the background we already have established: that DOJ charged Michael Cohen with, and convicted him of, a campaign finance violation in connection with the Stormy Daniels payment.

Let’s continue the quotation of Isgur’s comments from the Dispatch Podcast episode previously quoted, starting right after she made the comment quoted above: “And the only other crime they could attach to it was a federal crime that the Department of Justice decided not to prosecute Trump for.” We are now at 22:06 in the podcast:

So, there’s some problems here. It’s not clear to me—and it’s never been clear to me—that a state prosecutor can use, prove a federal crime to a state jury, that has never been charged, or convicted, to bootstrap the statute of limitations on a state crime. And, separately, the federal crime, and the reason the Department of Justice didn’t try it, is because it’s not a federal crime. It cannot be the case that paying hush money is a campaign expense, when in fact, if you used campaign money for that, you would get charged with a federal crime of misusing campaign resources. So that’s a, like, real, damned if you do, damned if you don’t, federal crime there, if either way, you’re committing a federal crime if you’re running for office and pay hush money. ‘Cause if you do disclose it, you do use campaign dollars, it was a misuse of campaign dollars, and if you don’t, then Alvin Bragg can get you on this weird state crime.

Frankly, I’m not sure I follow all of that. But the part in bold appears to be in error.

To be clear: the reason I say she is in error is not because I think that the crime in question is a federal crime and Isgur doesn’t. That would just be a disagreement on a matter of opinion. For the sake of this particular argument, let’s assume that Isgur is right when she says the hush money payment is not a federal crime, because something something about campaign resources and whatever. Fine. That’s not the issue. The mistake Isgur is making here is saying that the reason the Department of Justice did not charge Trump with that crime is that they agree with her that it is not a federal crime.

We know that is not the case.

How do we know that’s not the reason the Department of Justice didn’t charge Trump with this crime? Because if it were the reason, they never would have charged Michael Cohen with the same crime.

But DOJ did charge him. And Cohen pled guilty to it. As we just established in the previous section, DOJ charged Michael Cohen with a campaign finance violation for making the hush money payoff. I won’t go over the details of Cohen’s plea in this post again. If you’re interested, I wrote about it in detail in my post about the Bragg prosecution published at The Dispatch on April 8, 2023.

So it appears to be inaccurate for Isgur to say that the reason DOJ didn’t charge Trump is because “it’s not a federal crime.” Instead, as I explained in my March 27, 2023 Substack newsletter, DOJ under Trump did not charge Trump because DOJ has a policy not to file criminal charges against a sitting president. And Biden’s DOJ declined to prosecute Trump in connection with the Stormy Daniels payoff, according to reporting from January 2023, because “Trump’s other scandals, such as efforts to overturn the 2020 presidential election and the January 6, 2021, insurrection, ‘made the campaign finance violations seem somehow trivial and outdated by comparison.’”

Whether you believe that reporting or not, there is no way DOJ declined to charge Trump because they did not believe the payoff was a federal crime, given their decision to charge Cohen in connection with the very same payoff.

By the way, in his ruling last month, Judge Merchan addressed the issue of using a federal crime as an underlying crime. His answer: it’s perfectly fine to do that. So even if this concept is not clear to Sarah Isgur, it’s clear to the judge presiding over the case. For details, you can read Judge Merchan’s decision at pages 13-14.

Conclusion

I hope that the apparent errors I identify here are corrected in the venue where they were made, in an open and forthright manner. (Below, for paid subscribers, I have a short discussion on the ethics of issuing corrections, which distinguishes the practices of making them forthrightly, not making them at all, or making them in a stealth, sub silentio manner.)

The Bragg prosecution, as I have argued many times, is not as legally shaky as many commentators would have you believe. The statute in question is routinely used by the Manhattan District Attorney—and if Donald Trump violated it, he should be held accountable. Whether he will be, will depend on the nature of the evidence presented. If all prosecutors have is notorious liar Michael Cohen, they have a problem. If they have David Pecker and other witnesses and a lot of solid documentation—and it sure sounds like they have those things—the prosecution may well get a conviction that will be upheld on appeal.

It is my hope that, going forward, legal commentators will spend the time to learn the actual theories that Bragg is using in the case, and will accurately inform their audiences of the details of those theories. This is an important prosecution coming up, and it’s very important for respected legal commentators to get it right.

NEXT, FOR PAID SUBSCRIBERS: A disquisition on the ethics of making corrections.