Opinion | The Gaping Hole in the Middle of the Trump Indictment

For example, Bragg states that Trump “took steps that mischaracterized, for tax purposes, the true nature of the payments made in furtherance of the scheme.” But what tax crime exactly? Bragg doesn’t even specify whether it was a federal or state crime, or how he thought Trump intended to violate criminal tax laws.

To be sure, you can look at details within the statement of facts and try to guess at what those tax crimes might be. In one paragraph, Bragg explains how Trump’s payment to then-lawyer Michael Cohen to reimburse him for paying off Stormy Daniels was “doubled” to $360,000 so Cohen “could characterize the payment as income on his tax returns” so that Cohen would be “left with $180,000 after paying approximately 50 percent in income taxes.”

On its face, it sounds like Bragg believes that Trump intended to commit another crime by causing Cohen to falsely report on his tax return that he had too much income, thereby paying too much in taxes. A jury might have trouble believing that Trump intended to commit a crime by paying more money than necessary to the government in taxes.

But there’s another plausible reading of the statement of facts — that Trump “disguised” the reimbursement to Cohen as “a payment for legal services” so he could deduct it as a business expense. Either of these potential theories could be a criminal violation of either state or federal tax laws. But nothing in the statement of facts or the indictment makes clear what Bragg’s legal theory is or what state or federal tax law he alleges that Trump intended to violate.

Bragg also alleges that Trump “violated election laws” and repeatedly refers to the fact that Michael Cohen pleaded guilty to violating federal election laws. But again, neither the indictment nor the statement of facts cites any campaign finance or election laws, and neither document explains how Trump allegedly intended to violate election laws.

During a press conference after the arraignment, Bragg stated that Trump’s “scheme violated New York election law, which makes it a crime to conspire to promote the candidacy by unlawful means,” a reference to New York Election Law 17-152, a misdemeanor with a two-year statute of limitations. Bragg also noted that the payments to Daniels exceeded federal contribution limits.

It remains unclear whether Bragg relies on federal or state election laws, and both pose legal issues for the prosecution. If he relies on state election law, there is an argument that the New York state law is preempted by federal laws. After all, Trump was running for federal office. Bragg would be on stronger ground if he relied on federal election law, but it is not yet settled in New York courts that federal crimes can be used to bump up these crimes to felonies.

I’m not alone in wondering what the exact “other crimes” are. Since the indictment was released to the public, I’ve spent hours discussing the indictment with other lawyers, including multiple former Manhattan assistant district attorneys. None of us could determine with certainty what crimes Bragg is using to bump up the misdemeanor counts to felonies.

That is a serious problem. Like every other defendant, Trump has a right to be informed of the nature of the charges against him. His legal team can’t prepare a defense if they don’t know what Bragg’s legal theory is.

I expect Trump’s team soon will file a motion for a bill of particulars, the formal method by which defendants can demand prosecutors provide more specifics about the charges. Most of these motions are a waste of time, but in this case, the motion should be granted.

For now, Bragg seems to be leaving his options open, giving himself an opportunity to adjust his case in the upcoming weeks. That’s not how our system is supposed to work. While vagueness might give Bragg an advantage at this stage, prosecutors are supposed to promote justice, not try to gain an edge unfairly.

To be fair to Bragg, his office usually does not spell out what the “other crimes” are in an indictment. But as former Manhattan assistant district attorneys have pointed out to me, usually that is because the other crimes are charged within the same indictment, leaving little doubt regarding what they are. Given that no other crime is charged here besides Falsifying Business Records, it’s not clear what those “other crimes” are in Trump’s case.

That is not just a problem for Trump. That’s a problem for all of us. Bragg should know that the entire country is watching the proceedings brought by his office, and every American deserves to know exactly what the former President of the United States is accused of doing.

The indictment of a former president is a statement that no one is above the law. But that principle requires that every defendant is treated fairly. Trump — and the American people — deserve fair notice of the crimes that form the basis of the felony charges in the indictment.