Trump charges bring New York 'zombie case' back to life
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[March 31, 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 has brought charges against the former
president, Trump's lawyer Susan Necheles said on Thursday.
The charges were not immediately made public but emerged after Manhattan
District Attorney Alvin Bragg revived a probe into whether Trump
directed his former personal lawyer, Michael Cohen, to make the payment.
Cohen and Daniels have said the payment was to buy her silence about a
sexual encounter 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.
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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 in February.
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 was as yet unknown whether Bragg was 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.
Bragg's office did not immediately respond to requests for comment.
Joseph Tacopina, another lawyer for Trump, said in television interviews
before charges were filed that his client was a victim of extortion by
Daniels, whose real name is Stephanie Clifford.
Late last year Bragg's office 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
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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 encounter 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," Jerry Goldfeder, an election
law specialist at the Stroock law firm, said when asked before the
charges were filed 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," Sarah Krissoff, a partner at Day Pitney and a
former federal prosecutor, said in an interview before the charges
were filed.
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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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