ALAN DERSHOWITZ: Trump’s indictment is ridiculously weak. Bragg has disgraced his office 

alan dershowitz is an attorney, professor at Harvard Law School, and author of ‘Get Trump: The Threat to Civil Liberties, Due Process, and Our Constitutional Rule of Law’

In all my 60 years of litigating and teaching criminal defense, I have never heard of a case based on such a ridiculous extension of the law as the Donald Trump impeachment complaint.

Although the indictment remains sealed, it is highly likely that New York City District Attorney Alvin Bragg will try to charge Trump with conduct related to his alleged payment of $130,000 to porn star Stormy Daniels in exchange for his promise to not to disclose a consensual adulterous relationship during his 2016 presidential campaign.

Bragg has disgraced a once proud office.

To state the obvious, while immoral, it is not illegal to pay hush money. So, to make this relatively benign payment a state offense, the District Attorney must go through a series of legal contortions.

First, you must prove that the payments were fraudulently described in business records.

Ordinarily, someone would not be expected to diligently document “secret money paid to a porn star to keep quiet about an adulterous affair” since the main purpose of the reward is to keep it secret. But Bragg wants to make him criminal.

In any case, even if the prosecutor convinces a jury that Trump falsified business records, the worst-case scenario is that this offense is a misdemeanor.

That’s not the scalp Bragg wants. And so, he must perform another magic trick.

The DA would have to prove that the records were falsified in order to cover up an unreported campaign contribution.

If Trump secretly paid Daniels to keep quiet for the sole benefit of his presidential campaign, then that could well be a federal crime.

And ready! According to Bragg’s novel legal theory, that makes up a state crime for which he can prosecute Trump.

Don’t try to make sense of it, it’s nonsense.

As they say, a prosecutor can charge a ham sandwich. Winning at trial is something else entirely.

Bragg’s entire argument hinges on a psychoanalyst’s Freudian diagnosis of Trump’s motivations. Why did he do what he supposed he did?

At trial, if the defense raises reasonable doubt that Trump misrecorded the alleged hush payment to prevent embarrassment of his wife, family, business ventures, or for any reason other than his campaign, then charges will not stand.

This case goes up and down in credibility. Unfortunately for Bragg, his key witness, former Trump attorney and alleged fixer Michael Cohen, doesn’t have much.

If anyone has firsthand knowledge to back up Bragg’s theory that Trump paid Daniels to protect his political aspirations, it would be Cohen, who has already testified before the grand jury. It was the apparent conduit through which Trump paid Daniels. And he existed within Trump’s inner circle for years as a trusted, if not derided, employee.

If the Manhattan district attorney had any brains, he’d tell Cohen to stay home.

After all, he is a convicted liar.

In December 2018, Cohen pleaded guilty in Manhattan federal court to campaign finance violations for arranging a payment to Daniels and another woman with whom Trump allegedly had an affair.

One letter, obtained by DailyMail.com, shows Cohen’s lawyer informing the Federal Election Commission in 2018 that Trump was not involved in the hush money scheme.

The letter states: “Neither the Trump Organization nor the Trump campaign was a party to the transaction with Ms. Clifford, nor did they reimburse Mr. Cohen for the payment directly or indirectly.”

The obvious question for Cohen is: where are you lying then or are you lying now?

Last week, Cohen’s former legal counsel, Robert Costello, testified before the grand jury. After leaving court, he told the media that he informed jurors that Cohen “couldn’t tell the truth if they put a gun to his head.”

Cohen also pleaded guilty to hiding more than $4 million in personal income from the IRS and lying to a bank to get a home loan.

He was sentenced to three years in federal prison and ordered to pay a $50,000 fine.

To suggest that Cohen has something against Trump would be an understatement; in fact, he wrote two books about it.

In the aptly named ‘Disloyal’ and ‘Revenge,’ Cohen depicts Trump as a power-mad would-be dictator. No matter how inclined a jury is to punish Trump, they cannot be completely blind to Cohen’s bias.

Even if they sympathize with Cohen’s antipathy, they can’t ignore that he helped Trump when it was convenient.

Cohen has pleaded guilty to lying to Congress about an abandoned project to build a Trump Tower in Russia. In his plea, he said he misled the US Senate Select Committee on Intelligence to protect Trump’s campaign messages.

Finally, Cohen is on tape threatening a journalist investigating the claims of Trump’s first wife, the late Ivana Trump, who once accused Trump of spousal rape. She later recanted the claim.

“I’ll take you for every penny you don’t already have,” Cohen is heard telling then-Daily Beast reporter Tim Mak. “And of course, understand that by definition, you can’t rape his spouse,” Cohen continued.

Of course, that is not true. And she won’t look good in front of the jury either.

It is still unknown if there are other more credible witnesses who could incriminate Trump.

National Enquirer editor David Pecker appeared before the grand jury this week and is likely to testify in a possible trial. He was also involved in the alleged payments.

The Federal Election Commission fined Pecker $187,500 for “knowingly and willfully” violating campaign finance law by paying a Playboy model for her story about an alleged affair with Trump for the purpose of never publishing it.

Daniels may also be called to the stand, though his testimony would not be directly relevant to how Trump recorded the payments.

I would also advise the defense not to deny in court what Trump’s lawyer has already denied to the media: that Trump had an affair with Daniels.

The jury will not believe that statement and it would affect the credibility of the entire defense.

Trump shouldn’t take the stand in his defense either, because doing so would expose him to embarrassing questions that he might be tempted to answer falsely.

If this type of prosecution, with the same facts and law, were directed against an ordinary citizen, it would have practically no chance of success. But because the target is Trump and the location is very blue New York City, the likelihood of an indictment and conviction is better than even.

Even so, it is likely to be overturned on appeal. In fact, Americans may be voting for president in 2024 as a court considers striking it down.

But Bragg probably doesn’t care what an appeals court would do in two years. He is seeking his 15 minutes of fame now and the political gains that will result from a politically popular “get Trump” impeachment in heavily Democratic New York City.

Trump can also benefit nationally from the backlash from voters who see this as impeachment, and it is.

The only real damage that will result from this case is the damage it will do to the country, as our society sinks ever deeper into division and mistrust.

No matter the outcome of the Bragg case, we all lose.

This article is an update to an article that first appeared on March 24, prior to the indictment of Donald Trump by a Manhattan grand jury.