In the federal case against Mr. Cohen, prosecutors said that Mr. Trump’s company “falsely accounted” for the monthly payments as legal expenses and that company records cited a retainer agreement with Mr. Cohen. Although Mr. Cohen was a lawyer, and became Mr. Trump’s personal attorney after he took office, there was no such retainer agreement and the reimbursement was unrelated to any legal services Mr. Cohen performed.
In New York, falsifying business records can amount to a crime, albeit a misdemeanor. To elevate the crime to a felony charge, Mr. Bragg’s prosecutors must show that Mr. Trump’s “intent to defraud” included an intent to commit or conceal a second crime.
In this case, that second crime could be a violation of New York State election law. While hush money is not inherently illegal, the prosecutors could argue that the $130,000 payout effectively became an improper donation to Mr. Trump’s campaign, under the theory that because the money silenced Ms. Daniels, it benefited his candidacy.
Combining the criminal charge with a violation of state election law would be a novel legal theory for any criminal case, let alone one against the former president, raising the possibility that a judge or appellate court could throw it out or reduce the felony charge to a misdemeanor.