‘Bragg built his case on an exceedingly uncertain legal theory. Even if Trump did the things he’s accused of, it’s not clear Bragg can legally charge Trump for them, at least under the felony version of New York’s false records law. As Mark Pomerantz, a former prosecutor in the Manhattan DA’s office who played a significant role in the Trump investigation prior to his resignation in 2022, wrote in a recent book a key legal question that will determine whether Trump can be charged under the felony version of New York’s false records law has never been resolved by any appellate court in the state of New York. The felony statute requires Bragg to prove that Trump falsified records to cover up a crime. Bragg has evidence that Trump acted to cover up a federal crime, but it is not clear that Bragg is allowed to point to a federal crime in order to charge Trump under the New York state law. The answer to this “gnarly legal question,” as Pomerantz put it, is simply unknown. So there is a serious risk that a New York judge will toss out the charges against Trump on technical legal grounds unrelated to the former president’s actual conduct. And even if Bragg’s legal team convinces New York’s own courts that this prosecution may move forward, there is also a very real danger that the Supreme Court of the United States, with its GOP-appointed supermajority, could decide that it needs to weigh in on whether Trump should be shielded from this prosecution. The Supreme Court has long held, under a doctrine known as the “rule of lenity,” that “fair warning should be given to the world, in language that the common world will understand, of what the law intends to do if a certain line is passed.” Thus, when the meaning of a criminal statute is unclear, the Constitution sometimes requires that statute to be read narrowly because an unclear criminal law did not give potential defendants “fair warning” that their conduct was illegal. The current Court is divided about when this rule of lenity should apply, and whether it provides much protection at all to criminal defendants. But, if the current slate of justices decide that they must have the final word on whether Bragg may prosecute Trump, they could easily invoke the rule of lenity to justify asserting the Supreme Court’s jurisdiction over the case. Bragg, in other words, has built one of the most controversial and high-profile criminal cases in American history upon the most uncertain of foundations. And that foundation could crumble into dust if the courts reject his legal arguments on a genuinely ambiguous question of law. As Pomerantz writes in his recent book, the felony statute is “ambiguous” — though it refers to “another crime,” it does not say whether this crime may be a federal criminal act or only an act that violates New York’s own criminal law. Worse, Pomerantz writes, “no appellate court in New York has ever upheld (or rejected) this interpretation of the law.” It’s also possible that Bragg will try to link Trump to a second federal crime allegedly committed by Pecker or his company. As Bragg notes, Pecker’s company “entered into a non-prosecution agreement with the United States Attorney’s Office for the Southern District of New York in connection with AMI’s payoff of Woman 1.” But linking Trump to a second federal crime does not solve the legal problem that could blow up his felony case. That doesn’t mean that Bragg will lose, but it does mean that he will have to convince New York’s courts to adopt the more expansive reading of the felony statute in order to sustain a conviction. If the courts embrace the more narrow reading of the statute, that would mean that Trump can only be charged with a misdemeanor. There’s also one more twist here. The statute of limitations for the felony version of the false records crime is five years, while the statute of limitations for the misdemeanor version is only two years. Trump’s final payment to Cohen occurred in December 2017, which was more than five years ago. That said, New York law sometimes allows the clock to be stopped on these statutes of limitations when the defendant was out of the state, and Trump spent four years living in the White House before relocating to Florida. As a general rule, New York’s own courts are supposed to have the final word on how to interpret New York’s own law. Though the US Supreme Court is the final authority on how to read federal law (including the US Constitution), the highest court in each state is supposed to have the final say on how to interpret that state’s own law. But this case also presents at least two questions that turn on the proper way to read a federal statute or the US Constitution. The first question is whether federal campaign finance law actually criminalizes the $130,000 payment to Stormy Daniels. Former Attorney General Bill Barr — a lawyer who, admittedly, often bent over backward to protect Trump while he was in office — was a staunch critic of this legal theory. And the question of whether Cohen could lawfully be convicted under campaign finance law was never tested because Cohen pleaded guilty and did not fight his conviction. But the question of whether federal law prohibited the payments to Daniels is also at the heart of Bragg’s prosecution. If these payments were not a federal crime, then Trump potentiallycannot be charged with the felony version of the New York law and the case against him must be dismissed. The second federal legal question presented by Bragg’s prosecution is whether the rule of lenity requires courts to select the narrower interpretation of the New York falsified business records law. Many justices have argued that this rule of lenity is implicit in the Constitution’s guarantee that no one shall be denied liberty without “due process” of law. So Trump could ask the Supreme Court to rule that this prosecution is unconstitutional. Will that argument prevail? It’s unclear. The current Court is divided on how broadly to apply this rule of lenity, with Justices Sonia Sotomayor and Neil Gorsuch arguing for a more expansive approach, while Justices Samuel Alito and Brett Kavanaugh push a more pro-prosecution approach. For the moment, Alito and Kavanaugh appear to have the advantage in this fight. The Court said in Ocasio v. United States (2016) that the rule requiring ambiguous criminal statutes to be construed favorably toward the defendant “applies only when a criminal statute contains a ’grievous ambiguity or uncertainty,’ and ‘only if, after seizing everything from which aid can be derived,’ the Court ‘can make no more than a guess as to what [the legislature] intended.’” But it’s unclear whether the Court would stick to Ocasio if the alternative were to allow the frontrunner for the Republican Party’s presidential nomination to be hauled off to prison. All of which is a long way of saying that we may need to wait a very long time before the courts determine once and for all whether Trump may be convicted under the felony statutes he is accused of violating — indeed, if the Supreme Court gets involved in this case, we may not get an answer until wellafter the 2024 election. And, of course, even if Bragg does convince the courts that Trump was properly charged with a felony, he will still need to prove that case to a jury beyond a reasonable doubt.’ See: Will Trump be convicted? The glaring legal problem with the Manhattan DA’s case. – Vox

Depending upon the judicial determination of the meaning and scope of the phrase, ‘another crime’, the outcome of this case may have far reaching consequences for other defendants in the future. Not least, because in any event, an asset recovery lawyer in NY can trace a dollar transfer from a bank outside the US e.g. in Lichtenstein made to an offshore account e.g. in Nevis, by using a 1782 subpoena. The reason is that when money is transferred in dollars, even between two Russian banks, it touches a US clearing bank [‘USB’] for a fraction of a second, leaving a permanent record. The HQ’s of the USB’s are in Manhattan. In other words they are under the jurisdiction of the US courts. Therefore, a NY lawyer can subpoena the USB’s to obtain their records, in order to follow the money trail all the way e.g. from Russia, or Lichtenstein, to an offshore bank account. See:
The Expanding Use of 28 USC § 1782 | Seyfarth Shaw LLP