Manhattan’s probe into Donald Trump’s hush-money payments to porn star Stormy Daniels has been referred to as a “zombie case,” after the mythical creature who returns from the dead.
A grand jury of New Yorkers is expected to decide within days whether to bring charges against the former president for his role in a $130,000 payment his former lawyer Michael Cohen made in the run-up to the 2016 presidential election.
Cohen and Daniels have said the payment was to buy her silence about an affair she had with Trump in 2006 when Trump was married to his current wife Melania. Trump denies having had an affair with Daniels.
Manhattan District Attorney Alvin Bragg launched the probe after his predecessor Cyrus Vance twice looked into the payment and did not bring charges, in part because winning a conviction would rely on untested legal strategies, according to a new book by Mark Pomerantz, a former prosecutor in the office.
Doubts arose as to whether state felony charges could be brought against a candidate for federal office and whether the conduct could be considered money laundering, according to the book, “People vs. Donald Trump,” published last month.
The inquiry opened and shut so many times that it came to be known as a “zombie case,” Pomerantz said.
“The bottom line for me was that the ‘zombie’ case was very strong,” Pomerantz wrote. “But was it a crime under New York law?”
To be sure, it is not yet known what charges Bragg is considering bringing or if he is approaching the case with a similar legal theory to his predecessor.
Trump, who is seeking the Republican nomination for the presidency again in 2024, has called the probe a “witch hunt.” Bragg is a Democrat.
Trump’s lawyers did not respond to requests for comment, but his lawyer, Joseph Tacopina, has said in television interviews that Trump was a victim of extortion by Daniels, whose real name is Stephanie Clifford.
Pomerantz declined to comment.
A spokeswoman for Bragg declined to comment. His office late last year won a conviction of Trump’s family real estate company on tax fraud charges. Trump was not a defendant in that case.
According to Pomerantz, Vance’s office looked into the payment in 2019, after federal prosecutors in the U.S. Attorney’s office in Manhattan finished their own case involving the hush money. Pomerantz was not yet working in the district attorney’s office at the time.
In the federal case, Cohen pleaded guilty to campaign finance violations and testified that Trump directed him to pay Daniels and another woman.
Federal prosecutors said Trump’s family real estate company reimbursed Cohen and falsely accounted for it as a legal expense, but never charged Trump with a crime.
Under New York state law, falsification of business records is a misdemeanor. It can become a felony if the intent is to conceal or advance another crime.
Pomerantz wrote that the DA’s office considered whether that other crime might be a violation of election laws. Such a theory would assert that Cohen’s payment was a campaign contribution because Daniels’ disclosure of the alleged affair would have harmed Trump’s prospects at the polls.
But as Trump was a candidate for federal office, it was legally uncertain whether the intent to advance or conceal a federal crime could convert a state-level falsification of records charge into a felony, Pomerantz wrote.
“It’s an untested theory, but it’s not every day that a candidate for president violates a state law,” said Jerry Goldfeder, an election law specialist at the Stroock law firm, when asked whether state law could apply to a candidate for federal office.
‘BACK INTO THE GRAVE’
After hiring an outside law firm for advice, Vance’s office decided not to bring any charges, Pomerantz wrote.
“These types of crimes don’t necessarily have a clean fit into the applicable law,” said Sarah Krissoff, a partner at Day Pitney and a former federal prosecutor.
In early 2021, after Pomerantz joined Vance’s team, he revived the hush money inquiry under a different theory: if Daniels had been extorting Trump, then the money could be considered criminal proceeds and efforts to conceal that it came from Trump could constitute money laundering.
But Pomerantz wrote that many of his colleagues were skeptical of the idea that Daniels’ request for hush money amounted to extortion, and he later realized the money laundering statute would not be applicable to the situation.
“The ‘zombie’ case,” Pomerantz wrote, “went back into the grave.”