Donald Trump's team has put Manhattan District Attorney Alvin Bragg on the back foot, placing the former president in a strong position at the start of his hush money trial, a legal analyst has said.
Greg Germain, a law professor at Syracuse University in New York, told Newsweek that Bragg's opening statement has not established that what Trump did was illegal.
Trump, the presumptive Republican presidential nominee, is the first former president in United States history to stand trial in a criminal case. He has pleaded not guilty to 34 counts of falsifying business records to hide payments to adult film star Stormy Daniels and former Playboy model Karen McDougal.
The Manhattan District Attorney seeks to prove that before the 2016 presidential election, Trump paid, or discussed paying, the two women not to disclose alleged affairs with them, thereby influencing voters as to his character. He denies affairs with either woman.
Germain said the Trump team insisted to the jury that a non-disclosure agreement [NDA] signed by Daniels, was legal and therefore Trump has not broken the law.
Bragg is now on the back foot because, added Germain, "the DA has never explained what law would make the hush money payments to Stormy Daniels illegal.
"The DA has repeatedly suggested, but never spelled out, that hush money (NDA) payments made to 'influence an election' would be illegal."
"But where is the law making it illegal to seek to 'influence an election.' Trying to influence an election is what candidates and their supporters do every day in every way possible. What says making NDA payments to influence an election is illegal?" Germain asked.
Newsweek sought email comment from Trump's attorney on Tuesday.
Germain believes that the evidence is "pretty strong and logical" that Trump arranged for his lawyer, Michael Cohen, to pay Stormy Daniels and reimbursed Cohen as attorney fees.
"I don't think anyone is going to believe Trump's apparent argument that Cohen made the payments and was not reimbursed," Germain said.
"But the argument that Trump's NDA payments were not illegal is the cornerstone of Trump's defense. NDA payments are perfectly legal unless there is some special law making them illegal in a particular situation," he said.
Germain said the only relevant New York statute that he could find is New York Election Law 17-152, which makes it illegal for any two or more persons who conspire to promote or prevent the election of any person "by unlawful means."
"This requires a conspiracy to do something unlawful. Hiding information from the voting public may be immoral, unethical, and offensive, but what statute makes it unlawful?" Germain asked.
As part of the "pattern of behavior" narrative to back up those claims, prosecutors allege that a payment was made to a former Trump Tower doorman who made unsubstantiated claims that Trump allegedly fathered a child with another woman.
Prosecutors allege National Enquirer publisher American Media Inc. bought the rights to the doorman's story following an agreement between an executive and Trump to look out for negative stories about the then-presidential candidate. Trump has denied all the allegations and says he is the target of a political witch hunt.
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About the writer
Sean O'Driscoll is a Newsweek Senior Crime and Courts Reporter based in Ireland. His focus is reporting on U.S. law. ... Read more
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