Former Donald Trump attorney Michael Cohen is the only witness who has the slightest chance of proving anything in New York District Attorney Alvin Bragg’s highly publicized hush money case. But Cohen’s recycled plea-deal testimony still won’t be enough to convict the former president.

Trump was charged by Bragg with using false business records to cover up another crime. But, as I pointed out in Chronicles last month, the indictment failed to identify the underlying crime.

Based on media coverage of this tawdry sham, it does not appear that the district attorney has been able to fill this gaping hole in the logic of his case. Yet Bragg will almost certainly attempt to shoehorn the plea agreement from Cohen in another case into the Trump trial. This, Bragg must believe, is a way of relieving himself of any burden to prove that underlying crime.

Let’s start by reviewing the Trump-connected crime Cohen is convicted of. In November 2018, Michael Cohen pleaded guilty to five counts of tax evasion, making a false statement to a bank, and campaign finance violations.

It turned out that Cohen had earned approximately $2.4 million from a side hustle involving Chicago taxi cab medallions. Cohen got in trouble with the law because he did not report or pay taxes on this income stream, which had nothing to do with Trump. Facing a huge prison sentence for that crime, Cohen then agreed to also plead guilty to something involving his work for the Trump campaign. Had the campaign finance violation been the only reason he was in legal trouble, he easily could have knocked down this charge with a semi-competent lawyer. But he had other problems so Cohen’s value to the get-Trump prosecutor in 2018 became his ability to dirty Trump.

According to the indictment, Cohen “caused and made payments” to porn star Stormy Daniels “to influence the 2016 election” and “coordinated with one or more members of the campaign.” Trump then reimbursed Cohen for these payments. So, is that illegal? This argument was tried in federal court. After Michael Cohen’s plea deal admitting to this supposed campaign finance violation, get-Trump lawyers attempted to force the FEC to fine Trump for his role in the payments. In Free Speech For People v. FEC a district court dismissed this attempt. While some have argued that the split decision before the FEC and later procedural dismissal by the district court do not constitute an exoneration, their logic is backwards. Bragg needs to show Trump entered the false business records to further or conceal a crime. The burden is on Bragg to show an underlying crime took place.

The “contribution” only becomes a crime if Trump failed to report it to the Federal Elections Commission. But Trump did disclose the payment in an FEC filing. Here is the document. Yet even if he had failed to report the payment to the FEC, or if he should have reported the nature of the payment more explicitly, Trump cannot be held liable for failing to report an expenditure of his own money. As I wrote here last year: 

If Trump reimbursed Cohen, long-standing precedent provides that Cohen is no longer the one making the contribution for purposes of the FEC reporting. FEC regulations say, “A loan, to the extent it is repaid, is no longer a contribution.” Thus, if Trump reimbursed Cohen for the Stormy Daniels payment, it can no longer be considered a contribution on behalf of Cohen. This is devastating to the prosecution’s theory because individuals who are not the candidate (e.g., Cohen, but not Trump) are subject to the $2,700 per individual contribution limit. But Trump could give as much money as he wanted to his own campaign, without limits, so long as he disclosed it—which he did.

It’s worth remembering that Hillary Clinton campaign donors apparently committed the mirror image of what Trump is accused of doing here. As I wrote in The Federalist in 2018, “Remember all those women who came out around that same time (October of 2016) accusing candidate Trump of sexual harassment? Turns out that a lawyer sympathetic to candidate Clinton contacted Clinton donors for money with which to pay some of these women to accuse Trump right before the election.”

I will not be surprised by a unanimous verdict of not guilty clearing Donald Trump of all charges in Bragg’s absurd prosecution. Nor will I be surprised if Trump declines to take the stand in an effort to avoid unnecessarily extending the farce. This case is a two-legged stool, unable to stand on its own merits.