Under New York law, in order to prove fraud, the State must show, by clear and convincing evidence,
each and every one of the following elements:
(1) a material misrepresentation or omission of fact;
(2) made by defendant with knowledge of its falsity;
3) and intent to defraud;
(4) reasonable reliance on the part of the plaintiff; and
(5) resulting damage to the plaintiff.
Another salient legal issue that Bragg appears to have just blithely swept under the rug with this case is why, exactly, should President Trump be held
vicariously criminally liable for an alleged clerical error committed by his accountant or his attorney, Michael Cohen, or whoever might have been overseeing his tax filings at the time the write-off was made? If, as President Trump has said, that it was Michael Cohen, not him, who decided pay off Stormy Daniels, Bragg should be investigating Cohen and forcing him into court, not President Trump.
Bragg has also failed to establish how the alleged fraud rises to a felony. The District Attorney claims that President Trump somehow committed a felony – again, despite not having committed a fraud in the first place, for one, and not being the one to file his tax returns, for two – even though the black letter law (
again, §175.05) incontrovertibly treats the alleged misconduct here as a
misdemeanor, not a felony!
Under the relevant law, crimes brought under Penal Law 175.05 may arise to a felony
if and only if the District Attorney can prove that the alleged misdemeanor occurred to perpetuate or cover up
anothercrime. Bragg
plainly states that another crime was committed concomitantly with the clerical error that he is calling a misdemeanor here. But what crime, pray tell, he interestingly, incredulously, does not say!
The reason he does not state the crime is that he is relying, ultimately, on the sensationalized aspect of a hush money payment to engender the public perception that adulterous activity, though immoral, constitutes a felony under the law, even though that is patently not the case! The idea is to exploit and manipulate public opinion, naturally recalcitrant (
though perhaps less so nowadays than in years past) to the concept of extramarital affairs — and then conflate those received public biases and strong emotions with tangled legal theories of criminality, distorting the law and sowing both legal and moral confusion in the process.
If it were truly the case that extramarital conduct should be imputed with legal significance, then hush money payments, which necessarily run downstream from such misconduct, would likewise be treated as unlawful.
But hush money payments are permissible under law, and have been permissible for ages. Because hush money payments are lawful, Bragg’s legal theory is dead in the water.
But, for Bragg, et al., it does not matter what the law actually says. For Bragg, all he has to rely upon is how the public
feels about certain allegations – which he is hoping will be enough of a foundation to prosecute the President’s alleged misdemeanor as a felony, and therefore put him behind bars, even though there is absolutely no basis for any of his hogwash theory
whatsoever in either fact or law!
