Trump’s lawyers lay out hush money defense strategy

Former President Trump’s lawyers laid out their hush money case defense strategy in court filings this week, urging a New York judge to dismiss the indictment outright before the case even gets to trial.

Trump faces 34 felony counts of falsifying business records over reimbursements he paid to his then-fixer, Michael Cohen, after Cohen made hush money payments to porn actress Stormy Daniels and others in the lead-up to the 2016 election.

Hush money by itself is legal, but the prosecutors’ case centers on a claim that Trump improperly deemed the reimbursements a legal retainer in order to conceal criminal conduct and hide damaging information during his campaign.

The new filings this week encapsulate Trump’s attempt to get the case tossed ahead of trial, though a ruling is not expected until early next year.

Here are Trump’s five biggest legal arguments in fighting the indictment:

Selective prosecution

Trump’s attorneys in their dismissal motion accused Manhattan District Attorney Alvin Bragg (D) of selectively prosecuting the former president, calling the case “extraordinary and unprecedented.”

“Because of the unprecedented nature of the charges, and the evidence that they resulted from political pressure rather than an unbiased assessment of the evidence in furtherance of a commitment to do justice, the charges against President Trump must be dismissed,” Trump’s lawyers wrote in court filings.

Trump has portrayed the case — and his three other indictments — as a political witch hunt, attacking prosecutors and the judge.

“Beginning in 2018, DANY scoured every aspect of President Trump’s life, both personal and professional, in the hopes of finding some legal basis to prosecute him. The Office was determined to pursue a case notwithstanding the facts—however far-fetched and novel—and now it has,” Trump’s lawyers wrote, using an acronym to refer to the New York district attorney.

Bragg previously pushed back on the idea of the prosecution being a novel theory and has long insisted the case was not brought because of politics.

“The alleged offenses here—felony counts for falsifying business records to commit or conceal another crime—are charges that this Office brings routinely, based on a wide variety of underlying crimes,” prosecutors previously wrote in court filings.

Case brought too late

Trump’s attorneys are also arguing prosecutors were too late in bringing the case.

The dismissal motion repeatedly references a tell-all book published earlier this year by Mark Pomerantz, a former senior prosecutor on the investigation. In the book, Pomerantz cast doubts on the legal theory of the hush money case, describing it as the “zombie theory,” because prosecutors had previously abandoned it before reviving it when other prongs of their investigation turned up dry.

“DANY charged President Trump more than six years after public reporting regarding the facts at issue, and almost five years after commencing a grand jury investigation and accessing substantially all of the relevant evidence,” Trump’s attorneys wrote in court filings. “The delay has prejudiced President Trump, interfered with his ongoing presidential campaign, and violated his due process rights.”

Trump’s attorneys also noted that the charges would typically be subject to a five-year statute of limitations, which had passed by the time the indictment was brought. 

Then-New York Gov. Andrew Cuomo (D) issued executive orders during the pandemic modifying legal deadlines, but Trump’s attorneys say the extensions don’t apply to the case. They also pushed back on the notion of applying a New York law that extends the statute of limitations when the defendant “was continuously outside this state.”

“Unlike a criminal defendant who evades prosecution by fleeing or hiding, President Trump’s whereabouts have been and continue to be well known,” Trump’s attorneys wrote.

“Throughout the five-year statute of limitations, President Trump’s time outside of the State remained intermittent, even as he resided in the White House and established permanent residence in Florida,” they continued. “He returned frequently to and maintained significant ties with the State of New York. He owned properties and businesses inside the State, and he was one of the single most tracked persons in the world.”

Legally defective charges

Trump’s attorneys are also attacking prosecutors’ legal theory of the case, saying the 34 falsifying business records counts are legally defective.

First, Trump’s lawyers argue the records in question — a series of invoices, checks and ledger entries — were not business records, because they “do not relate to the condition or activity of the Trump Organization.”

“To the contrary, the payments were made to President Trump’s personal lawyer, from President Trump’s personal accounts, and documented on President Trump’s personal ledgers, effectively his personal checkbook,” Trump’s attorneys wrote.

Trump’s attorneys also pushed back on how prosecutors also bumped up the charges to felonies, which requires connecting the falsified records to a second crime. 

Prosecutors have suggested violations of federal election laws, state election laws and state tax laws.

But in their dismissal motion, Trump’s attorneys argued that the second crime must be a state offense, so the federal election law can’t be leveraged. For the state election law, Trump’s attorneys argued it doesn’t apply to federal candidates such as Trump, and that prosecutors also can’t prove Trump’s intent to commit the tax crime.

“Because the People did not establish that the payment involved a tax crime and that President Trump was aware of it, they did not meet their burden in the grand jury,” Trump’s attorneys wrote.

Pre-indictment leaks

Trump’s latest motion also takes aim at news reports detailing aspects of the closed-door grand jury proceedings that culminated in Trump’s indictment, suggesting leaks will ultimately be a reason to dismiss the case.

“Leaked information regarding grand jury proceedings relating to the investigation has prejudiced President Trump by creating political pressure on the prosecutors and grand jurors to indict him. A hearing is warranted to determine the extent of the leaks, the intent behind them, and the resulting prejudice,” Trump’s attorneys wrote.

The former president asked the judge to require the office to turn over any emails between prosecutors and the press.

Move to federal court

Beyond his new dismissal motion, Trump for months has been attempting to move his charges to federal court so he can assert various defenses in the case.

A judge rejected the effort earlier this year, but Trump has appealed the issue to the 2nd U.S. Circuit Court of Appeals.

Moving courts would also broaden the jury pool beyond heavily-Democratic Manhattan to surrounding areas of southern New York. It would also have the case overseen by a federal judge and doom any chance of the proceedings being photographed or filmed.

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