Trump hush-money charges would bring 'zombie case' back to life
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[March 22, 2023]
By Luc Cohen
NEW YORK (Reuters) - Manhattan has started and stopped its investigation
into Donald Trump's hush-money payments to porn star Stormy Daniels so
many times that it has come to be known as a "zombie case" like the
mythical character who returns from the dead.
A grand jury of New Yorkers is expected to decide within days whether to
bring charges against the former president for his role in a $130,000
payment his former lawyer Michael Cohen made in the run-up to the 2016
presidential election.
Cohen and Daniels have said the payment was to buy her silence about an
affair she had with Trump in 2006 when Trump was married to his current
wife Melania. Trump denies having had an affair with Daniels.
Manhattan District Attorney Alvin Bragg launched the probe after his
predecessor Cyrus Vance twice looked into the payment and did not bring
charges, in part because winning a conviction would rely on untested
legal strategies, according to a new book by Mark Pomerantz, a former
prosecutor in the office.
Doubts arose as to whether state felony charges could be brought against
a candidate for federal office and whether the conduct could be
considered money laundering, according to the book, "People vs. Donald
Trump," published last month.
The inquiry opened and shut so many times that it came to be known as a
"zombie case," Pomerantz said.
"The bottom line for me was that the 'zombie' case was very strong,"
Pomerantz wrote. "But was it a crime under New York law?"
To be sure, it is not yet known what charges Bragg is considering
bringing or if he is approaching the case with a similar legal theory to
his predecessor.
Trump, who is seeking the Republican nomination for the presidency again
in 2024, has called the probe a "witch hunt." Bragg is a Democrat.
Trump's lawyers did not respond to requests for comment, but his lawyer,
Joseph Tacopina, has said in television interviews that Trump was a
victim of extortion by Daniels, whose real name is Stephanie Clifford.
Pomerantz declined to comment.
A spokeswoman for Bragg declined to comment. His office late last year
won a conviction of Trump's family real estate company on tax fraud
charges. Trump was not a defendant in that case.
'UNTESTED THEORY'
According to Pomerantz, Vance's office looked into the payment in 2019,
after federal prosecutors in the U.S. Attorney's office in Manhattan
finished their own case involving the hush money. Pomerantz was not yet
working in the district attorney's office at the time.
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Former U.S. President Donald Trump
delivers remarks on education as he holds a campaign rally with
supporters, in Davenport, Iowa, U.S. March 13, 2023.
REUTERS/Jonathan Ernst
In the federal case, Cohen pleaded guilty to campaign finance
violations and testified that Trump directed him to pay Daniels and
another woman.
Federal prosecutors said Trump's family real estate company
reimbursed Cohen and falsely accounted for it as a legal expense,
but never charged Trump with a crime.
Under New York state law, falsification of business records is a
misdemeanor. It can become a felony if the intent is to conceal or
advance another crime.
Pomerantz wrote that the DA's office considered whether that other
crime might be a violation of election laws. Such a theory would
assert that Cohen's payment was a campaign contribution because
Daniels' disclosure of the alleged affair would have harmed Trump's
prospects at the polls.
But as Trump was a candidate for federal office, it was legally
uncertain whether the intent to advance or conceal a federal crime
could convert a state-level falsification of records charge into a
felony, Pomerantz wrote.
"It's an untested theory, but it's not every day that a candidate
for president violates a state law," said Jerry Goldfeder, an
election law specialist at the Stroock law firm, when asked whether
state law could apply to a candidate for federal office.
'BACK INTO THE GRAVE'
After hiring an outside law firm for advice, Vance's office decided
not to bring any charges, Pomerantz wrote.
"These types of crimes don't necessarily have a clean fit into the
applicable law," said Sarah Krissoff, a partner at Day Pitney and a
former federal prosecutor.
In early 2021, after Pomerantz joined Vance's team, he revived the
hush money inquiry under a different theory: if Daniels had been
extorting Trump, then the money could be considered criminal
proceeds and efforts to conceal that it came from Trump could
constitute money laundering.
But Pomerantz wrote that many of his colleagues were skeptical of
the idea that Daniels' request for hush money amounted to extortion,
and he later realized the money laundering statute would not be
applicable to the situation.
"The 'zombie' case," Pomerantz wrote, "went back into the grave."
(Reporting by Luc Cohen in New York; Editing by Noeleen Walder and
Howard Goller)
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