Stanford’s David Sklansky on Charges Against Former President Trump

On April 4, Donald Trump traveled to New York for a historic court appearance to hear 34 felony counts brought against him by Manhattan DA Alvin Bragg. It marked the first time that a president—former or sitting—has been charged with a crime. And while the world watches as this former president navigates campaigning for the nation’s highest office as he defends himself in court, it’s clear we are in a watershed moment. Here, Stanford Law Professor David A. Sklansky discusses the charges brought against Trump.

Justice Scales and wooden gavel on wooden table

Which of the charges are the most serious and why?

All 34 counts of the indictment are for the same alleged crime:  falsifying business records.  That’s a felony in New York when it’s done to facilitate or conceal another crime, which Bragg’s office says was the case here.  There are 34 counts because they relate to 34 different documents, all of which the prosecutors say were designed to cover up payments that Trump made to his former lawyer and fixer, Michael Cohen, to compensate Cohen for hush money he gave to Stormy Daniels.

It’s a hush money case but done just before the 2016 election. Can you talk about the election aspects of this case given the timing of the payment? Alvin L. Bragg also released a “statement of facts” document today outlining a larger scheme by Trump to hide important facts during the 2016 election campaign.

The election aspects of the case have to do with the fact that the payments were allegedly made to Daniels to keep the lid on a story that Trump was worried could endanger his campaign for the presidency.  And yes, Bragg’s office filed a statement of facts along with the indictment, alleging that the payments were part of a broader scheme to pay off people with stories damaging to Trump, and to hide the nature of the payments.

Bragg’s case has been called novel, with the charges appearing to hinge on a novel application of the law. Can you talk about that?

One question the indictment raises has to do with the nature of the other crime, or crimes, that the falsified records were allegedly designed to facilitate or conceal.  What were those other crimes, precisely?  The prosecutors have said that they included federal caps on campaign spending, as well as tax laws.  The campaign spending part is the novel part of the case, because there don’t seem to be other examples of federal crimes being used as a predicate for a felony violation of New York’s prohibition on falsifying business documents. Trump’s lawyers will likely argue—among many other things—that the New York statute doesn’t sweep that broadly.

How strong is Bragg’s case?

It’s hard to say.  The indictment isn’t evidence; it is just a set of charges.  The strength of the case will depend on how strong Bragg’s evidence is.

David Alan Sklansky
David Alan Sklansky,
Professor of Law

We’re about to get into the 2024 presidential campaign. Will that factor into this case?

It’s hard to see how that could be avoided.  But how it winds up playing out is harder to predict.

How does National Inquirer publisher David Pecker play into this?

Bragg’s office alleges that Pecker and his company, American Media, helped broker the deal with Stormy Daniels, as well as payoffs to other people with stories damaging to Trump.

Michael Cohen, Trump’s former lawyer and so called “fixer,” pleaded guilty to criminal tax evasion and campaign finance violations related to the same payments. Cohen said Trump instructed him to pay Stormy Daniels and Karen MacDougal and he spent time in prison for those crimes.  Does his conviction on this matter when looking at charges against Trump today?

Cohen is likely to be a key witness against Trump.  The fact that he himself pleaded guilty to criminal charges related to these payments could boost his credibility with the jury.  But it’s also conceivable that a jury could wind up thinking that Cohen is just trying to spread the blame around.

Former DA Cy Vance said that he was asked by the DOJ not to pursue a case against Trump when charges were brought against Cohen. Does this indicate weakness in Bragg’s case? Or is it a larger issue of politicization of the DOJ?

Vance said that federal prosecutors in Manhattan asked him to hold off pursuing this case, in deference to their own investigation.  That doesn’t suggest that the case was weak; on the contrary, it suggests that federal prosecutors thought the case was sufficiently strong, and sufficiently important, that they wanted to pursue it themselves.  The bigger question is why DOJ didn’t wind up charging Trump—why their investigation of the payoff schemes stopped with Michael Cohen.  That may in fact reflect concerns about the strength of the case against Trump, but it may also reflect politicization of DOJ under Trump.

Is there anything else you’d like to add?

I think it’s important to hold off final judgment on these charges until they are litigated in court.  Like anyone else, Trump is entitled under the law to the presumption of innocence. But the prosecutor’s office also enjoys a presumption of regularity in its proceedings. The Constitution prohibits selective prosecution: singling out a defendant for prosecution for impermissible reasons such as race, religion, or political affiliation. But the burden is on a defendant to prove selective prosecution, and it takes evidence that the prosecutors chose not to pursue similar charges against other, similarly situated defendants. Bragg’s office will need to present its evidence against Trump in court, and if Trump’s lawyers think he has unconstitutionally been singled out for prosecution, they will need to present evidence of that in court, too.  The point of a trial, and of legal proceedings in general, is precisely to resolve factual disputes with reason and evidence, not with bare allegations.

David Alan Sklansky is the Stanley Morrison Professor of Law and Faculty Co-Director of the Stanford Criminal Justice Center. His most recent book is “A Pattern of Violence: How the Law Classifies Crimes and What It Means for Justice” (Harvard University Press, 2021).