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- Three former prosecutors told Insider that AG Alvin Bragg’s hush-money case against Trump is weak.
- But if the matter does make it to trial, the former president could use his wife to his benefit.
- “There are many men who would make those payments if it avoids trouble at home,” one legal expert said.
Melania Trump, the exceedingly private former first lady, could eventually be forced to the forefront of her husband’s criminal defense on felony charges — if the case ever makes it to trial.
More than a week after former President Donald Trump was indicted on 34 charges of falsifying business records, legal experts are skeptical of Manhattan District Attorney Alvin Bragg’s case.
“I would not be surprised if you see this be a hard-fought legal battle before we even start to talk about whether they could prove this at a trial,” Joshua Ritter, a partner with El Dabe Ritter Trial Lawyers and a former Los Angeles County prosecutor, told Insider.
Earlier this month, Trump was charged with 34 felony counts in connection to a hush-money payment to adult film star Stormy Daniels ahead of the 2016 election. Michael Cohen, Trump’s former lawyer and fixer, pleaded guilty to several felonies related to the payment in 2018.
Trump has repeatedly denied having sex with Daniels and the former president pleaded not guilty to all the counts against him in a New York courtroom last week.
Despite the unprecedented nature of the indictment, which is the first of its kind against a former US president, legal experts are dubious about the strength of Bragg’s case, and two former prosecutors told Insider this week that there is little chance this matter will ultimately go to trial.
Still, that doesn’t mean it’s entirely implausible that Trump might find himself in a New York courtroom come 2024 or later. Three former prosecutors speculated about possible defense strategies the former president might use in such a case.
AP Photo/Julia Nikhinson
The Melania defense
Trump has repeatedly denied ever having a sexual relationship with Daniels, but the salacious nature of the alleged affair at the heart of the indictment could hand the 2024 Republican presidential candidate a practically perfect defense, according to Neama Rahmani, president of West Coast Trial Lawyers and a former federal prosecutor.
To craft such a defense, Trump would either have to admit he was unfaithful to his third wife, whom he married in 2005, and who has reportedly raged about his alleged infidelity or simply maintain his current stance that Daniels was extorting him for money.
“If jurors believe he did this, not to help his election but to save his family from embarrassment, then it’s not a felony, it’s a misdemeanor,” Rahmani said. “It’s a pretty reasonable defense, too. Who wants their wife and kids to know they’re having an affair?”
Ritter echoed that sentiment, saying Trump’s defense could smartly frame him not as a man afraid for his presidential campaign, but as a man who “happened to be accused of infidelity.”
“There are many men who would make those payments if it avoids trouble at home,” Ritter told Insider.
Would Melania cooperate?
The defense wouldn’t even necessarily need Melania Trump’s support or cooperation with such a tactic, which could be important given the former first lady’s step back from the spotlight in recent years, coupled with her noticeable absence in the wake of Trump’s arrest.
From a public relations perspective, Melania’s visible support for her husband in court could aid his case, according to Ritter, but her testimony at a trial would be highly unlikely and unnecessary.
“As much as she may be the impetus for why he would make such a payment, her thoughts or understanding of what went on is irrelevant,” Ritter said.
It’s a defense strategy that could play well with jurors, legal experts said, especially if Trump paints himself as a successful businessman uniquely at risk of extortion who made the decision to pay off Daniels in exchange for protecting her personal life.
“As long as he keeps it in that kind of tone, he may have 12 jurors looking around at each other going ‘what are we doing here?'” Ritter said.
Former President Donald Trump appears in court for his arraignment on charges related to falsifying business records in a hush money investigation, Tuesday, April 4, 2023, in New York.
The busy businessman defense
Trump could also opt to leave his private life and wife out of any defense, instead emphasizing his apparent ignorance as the reason for the illegal payments, Ambrosio Rodriguez, a former prosecutor, told Insider..
The former president could simply argue that he had no idea how the money he was paying Cohen was being distributed.
“I have multiple companies and corporations. I had no idea it happened,” Rodriguez said, imitating a possible Trump line of defense.
But legal experts stressed that any speculation about a possible Trump defense at this point is still entirely conjecture. The indictment will likely have to survive several appeals and perhaps even multiple courts before the former president would ever face a jury of his peers.
“If they get past all those challenges, what you’ll be left with at a trial level is did he actually commit a crime in the way he made these payments,” Ritter said.
And an answer to that question is still months away. Rahmani said there’s virtually zero chance this case would see a courtroom come January 2024.
“Trump will push this back if he thinks it will help his chances as president,” Rahmani said.
But experts say a trial is unlikely
“I think the defense has a very good chance of beating this case at the motion level, meaning they might be successful in getting the case thrown out,” Rodriguez said.
He added that the public should prepare for a “summer of motions and hearings” ahead of Trump’s next scheduled court date in December, during which his legal team will likely try to litigate their way out of the indictment, filing appeals and attempting to escalate the case to a higher court where, they hope, a judge will eventually throw it out entirely.
The 34 felony charges are all predicated on misdemeanor charges, legal experts say, and if Bragg and his team can’t prove that Trump made the payments in service of a larger crime — such as avoiding tax laws or skirting campaign finance rules — the charges will be downgraded to misdemeanors and almost certainly dismissed due to statute of limitation laws.
“His team is going to challenge this on every possible legal basis,” Ritter said. “His people are anything but shy about litigation.”