A New York Times review and interviews with election law experts strongly suggest that New York state prosecutors have never before filed an election law case involving a federal campaign. Bringing an untested case against anyone, let alone a former president of the United States, carries the risk that a court could throw out or narrow the case.
The case could hinge on the way Mr. Trump and his company, the Trump Organization, handled reimbursing Mr. Cohen for the payment of $130,000 to Ms. Daniels. Internal Trump Organization records falsely classified the reimbursements as legal expenses, which helped conceal the purpose of the payments, according to Mr. Cohen, who said Mr. Trump knew about the misleading records.
In New York, falsifying business records can be a crime, and Mr. Bragg’s office is likely to build the case around that charge, according to people with knowledge of the matter and outside legal experts. The false business records charge is the bread and butter of the district attorney’s office white-collar practice — since Mr. Bragg took office in 2022, prosecutors have filed 117 felony counts of the charge, against 29 individuals and companies, according to data kept by the office.
But for falsifying business records to be a felony, not a misdemeanor, Mr. Bragg’s prosecutors must show that Mr. Trump’s “intent to defraud” included an intent to commit or conceal a second crime. That crime could be a violation of election law, under the theory that the payout served as a donation to Mr. Trump’s campaign, because it silenced Ms. Daniels and shut down a potential sex scandal in the final stretch of the campaign….
Whether hush money can amount to a campaign donation is not settled law. At the federal level, this issue arose with the prosecution of John Edwards, the former senator and presidential candidate, in a 2012 case that ended with jurors deadlocked over the majority of the charges, which prosecutors ultimately dropped….
If Mr. Bragg does pursue an election violation as the second crime, there are several unanswered questions.
For starters, it is unclear whether he would cite a federal or state election law violation, or even both. And with either choice, there could be pitfalls.
If his office uses a federal election violation as the second crime, Mr. Trump’s lawyers could argue that federal law has no place in state court. And if he uses a New York election law violation, the defense could claim that a violation of state law does not apply to a federal election — in this case, the 2016 presidential campaign.
“Generally, someone can’t be prosecuted for violating a contribution limit in a federal election in a state court,” said Richard L. Hasen, a law professor at the University of California, Los Angeles, who specializes in election law….
Mr. Bragg’s prosecutors, however, appear to have taken a more favorable view of using a state election law violation, according to people with knowledge of their thinking. The laws governing elections in New York are unusual in that they explicitly apply to federal elections, not just state elections. And New York state prosecutors have secured at least one conviction in a case in which they combined falsifying business records charges with state election law crimes, though that case involved a state election, not a federal one.
Several state election law provisions appear to fit Mr. Cohen and Mr. Trump’s conduct, according to legal experts. One, state election law 14-126, makes it unlawful for someone (Mr. Trump, under this theory) to knowingly and willingly solicit another person (Mr. Cohen) to spend money in order to evade campaign contribution limits ($130,000 in hush money, well above the limits).
Another, state election law 17-152, proposed as an option by analysts at Just Security and the legal commentator Lisa Rubin, is even simpler: It makes it illegal to conspire to promote the election of any candidate “by unlawful means.”
Any state election law that the district attorney might pair with the falsifying business records charge may have to make it through a gantlet: Federal campaign finance law explicitly states that it overrides — pre-empts, in legal terminology — state election law when it comes to campaign donation limits.
That could rule out the possibility that Mr. Bragg might use 14-126, the New York law that makes it illegal to solicit campaign spending that violates contribution limits.
But there are exceptions to federal pre-emption contained in regulations from the Federal Election Commission, known as the F.E.C. And it is possible that the other law, 17-152, which makes it illegal to conspire to promote the election of any candidate “by unlawful means,” may be able to avoid triggering federal pre-emption. That law does not deal explicitly with contribution limits.
In short, it may be the strongest option for Mr. Bragg.
“It appears that this provision, which prohibits unlawfully promoting an election, could fit into one of the F.E.C. exceptions,” said Jerry H. Goldfeder, a special counsel at Stroock & Stroock & Lavan LLP and a recognized expert in New York state election law.