According to sources familiar with the investigation, Vance even commissioned outside lawyers to look at the legal issues involved, but ultimately opted not to move forward with a prosecution. The prior district attorney’s office run by Bragg's predecessor, Democrat Cy Vance, previously investigated the false business records charge (and limitations) at length. Alex Brandon / AP Is the case a slam dunk legally? Former President Donald Trump speaks at the Conservative Political Action Conference in Oxon Hill, Md., on Mar. If the grand jury doesn’t vote in favor of prosecuting this case as a felony, it could direct the prosecutor to file a misdemeanor case instead. Others have argued that would be a huge waste of time and resources, and give Trump the power to paint the case as weak. Some legal commentators have suggested that perhaps the DA is only prosecuting the misdemeanor charge. In order to elevate it to a felony, the defendant needs to have created the fake records with an intent to commit or conceal “another crime.” Here, it’s unclear what the Manhattan district attorney’s office plans to argue is the second crime. Normally, the false business records charge would be a misdemeanor. The fake documentation of “legal expenses” on the Trump Organization’s books could trigger a charge under New York state law, which makes falsifying business records a crime. The legal problem is there was no retainer agreement - according to Pomerantz, it was all done to cover up the hush money scheme. Then Cohen received a series of checks, hand-signed by Trump while he was in the White House. According to Mark Pomerantz, a former prosecutor who worked closely on the case and recently published a book about his experience, Cohen submitted phony invoices throughout 2017 referencing a “retainer agreement” and requesting payment.
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