On Thursday, February 15th, Justice Juan Merchan will consider Donald Trump’s request to drop the Manhattan District Attorney’s Office case against him. DA Alvin Bragg’s case involves felony charges of falsifying business records in connection with concealing hush money payments at the end of the 2016 Presidential election. Prosecutors charge that Trump cooked his books to hide his affair from voters because he was afraid that the story would hurt his candidacy. 

In raising five separate arguments to dismiss the charges, Trump’s legal team threw many claims at the prosecution before the February 15 hearing, hoping something would stick. That is what good defense attorneys often do at this pretrial stage.  

In our assessment, the DA’s office has convincingly rebutted each attempt. In this essay we review Trump’s claims and how they have been countered. They will almost certainly all fail.

Undue delay

First, Trump argues that the DA’s office waited more than six years to file charges after news broke of his extramarital affair. That delay, he claims, prejudiced him by interfering with his ongoing presidential campaign. This doesn’t reflect the reality of the timeline or the reality of the law. The DA’s office has significant discretion in deciding whether and when to file charges. In this case, the delay was justified.  

Indeed, most of the delay resulted from obstacles that Trump himself created. Trump tied up the investigation for 17 months by suing to block enforcement of a subpoena for financial records. Additionally, the DA’s office paused its investigation for ten months, because there was a simultaneous federal investigation into similar conduct, which took precedence. As reasons for delaying a case go, these are quite obviously good ones. 

Technical defects in the indictment

Second, Trump claims that the indictment is legally defective in several different ways. For example, he argues that the records he allegedly falsified are not business records at all.   Instead, he contends, the Trump Organization records are akin to his personal checkbook. But this is not true, either. As the DA convincingly counters, records held and maintained by the Trump Organization to reflect its business activity and obligations clearly constitute business records under New York law. In fact, this was already determined in a previous prosecution of the Trump Organization.

Trump also argues the grand jury was not provided with adequate evidence of any intent to defraud. However, Bragg explains that direct evidence of intent to defraud is not necessary under the law where, as here, there is sufficient circumstantial evidence of intent. The DA notes that the combination of evidence that Trump knew the records were false and of his elaborate efforts to conceal the hush money payments in violation of campaign finance laws provided adequate support under the law for the grand jury to conclude Trump acted with an intent to defraud.  

Trump further claims the prosecution cannot meet its burden of proving that his intent to defraud included an intent to commit, aid, or conceal another crime, as the law requires for the first-degree felony charges at issue. However, Bragg sufficiently describes the other crimes that Trump attempted to commit or conceal by falsifying records. He explains how fake invoices, ledger entries, and checks were intended to violate federal election law by covering up hush money payments that legally should have been reported as campaign expenses. The falsified business records also violated New York state election law that prohibits deceptive practices in connection with an election.  

Trump’s scheme also was intended to commit or conceal tax crimes by hiding the amount and true nature of payments made to his attorney, Michael Cohen, as reimbursement for the $130,000 in hush money payments Cohen made on Trump’s behalf. To make Cohen whole, Trump paid him twice that amount (plus $100,000 for a separate campaign related-reimbursement and a $60,000 bonus) so that Cohen could disguise the reimbursement as income and still end up fully reimbursed after paying the income taxes.

The hush money scheme was also intended to conceal the falsification of other businesses’  records. The indictment alleges Trump entered into a “catch and kill” agreement with American Media, Inc. (AMI), a media company that owned and published the National Enquirer and other magazines, to identify and suppress negative stories about him. AMI, along with a company Cohen formed to serve as a conduit for payments, falsified their own records to help Trump execute and hide what they did. The indictment alleges that the falsified records at the heart of this case were made “with the intent to conceal these earlier falsifications of other business records.” That is all the DA needs to do to meet the challenge Trump’s attorneys raise. 

Selective prosecution

Third, Trump claims that he was selectively prosecuted. In other words, he is arguing that the DA’s office unfairly singled him out and “scoured every aspect” of his personal and professional life hoping to find some basis to charge him. This complaint is nothing new for Trump, and in any defendant’s case is a very difficult challenge to mount successfully. In his cases, Trump has consistently raised meritless claims of selective prosecution against plaintiffs and prosecutors. Courts have uniformly rejected those arguments. Justice Merchan will do the same here, because – once again – the claim has no merit. The DA’s office routinely prosecutes this type of business offense. It would be selective not to charge him. Indeed, federal prosecutors referred to Trump as “Individual-1” in federal criminal proceedings in which his agent, Cohen, pleaded guilty to the underlying criminal conduct, including falsified business records. It would have been selective non-prosecution if the Manhattan DA’s office had failed to follow through on investigating and prosecuting upon finding criminal wrongdoing.  

Statute of limitations 

Fourth, Trump argues that the prosecution is barred by the statute of limitations. But the elephant in the room is that the Governor’s COVID-19 Executive Orders extended the statute of limitations for these criminal charges. Additionally, Trump’s absence from the state while serving as President after allegedly committing the charged crimes tolled (paused the clock on) the statute of limitations, as New York law expressly provides.

Multiplicity: triple counting 

Fifth, Trump contends the indictment charges him with more than one count for each of the eleven reimbursement payments he made to his attorney, Michael Cohen, to hide the hush money payments. Trump argues that, as a legal matter, each payment can only support a single charge. This is another unavailing argument. As Bragg explains, because the relevant law criminalizes making a false entry in the business records of an enterprise, each false entry constitutes a discrete crime. The indictment appropriately charges one count for each of eleven false invoices, twelve false ledger entries, and eleven false checks. The law does not support Trump’s contention that he can be charged with only eleven counts. 


The DA has racked up other key pretrial victories, and we expect this streak to continue. Bragg is very likely to prevail at the February 15 hearing as well. Trial is currently set to begin March 25, and nothing in Trump’s motion to dismiss appears likely to change that timeline. 

IMAGE: The Manhattan Criminal Courthouse (via the NYC Department of Citywide Administrative Services)