Charging Donald Trump with a misdemeanor would be totally insane, right?
I’ve been thinking about that question lately, including after finishing former Manhattan prosecutor Mark Pomerantz’s new book, “People vs. Donald Trump: An Inside Account.” I’m looking forward to his interview with Nicolle on the show later today.
Pomerantz helped lead the Manhattan district attorney’s office investigation into Trump’s business practices until he resigned early last year. In making his case that the former president is guilty of multiple New York felonies, Pomerantz briefly noted in his book how some legal theories against Trump might only work as misdemeanors, such as in the Stormy Daniels hush money situation. “Only” being the operative word here, suggesting that only felonies would be worth the effort in such a monumental case. It’s an understandable sentiment, one that I’ve observed in the broader discourse over possible New York charges against Trump.
The felony/misdemeanor distinction has become potentially relevant recently. That’s because Manhattan District Attorney Alvin Bragg, whose alleged initial hesitancy to bring charges led Pomerantz to quit the case, is now reportedly presenting evidence to a grand jury regarding the hush money payment. A New York Times report published on Jan. 30 observed the legal uncertainty of being able to bring a felony, as opposed to a misdemeanor, case regarding falsifying business records in reimbursing then-Trump lawyer Michael Cohen for the payment. A felony charge requires that falsifying records helped conceal or commit another crime (the Times noted the “largely untested” theory of violating state election law as a potential second crime).
So while it’s unlikely, given the myriad federal and state probes into the former president, that his criminal fate will come down to a misdemeanor or nothing, it’s worth thinking about why we might be inclined to disregard anything called a misdemeanor as insufficient. I…
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