. . . and that fact seems to be dawning on more people who are left of center. Here is a Daily Beast piece that has some new reporting, but the crux of it will be familiar to anyone who’s been reading Andy on this:
What initially drew prosecutors to the case was the way the Trump Organization paid back Cohen in separate checks broken up over a year, engaged in a monthly cover-up using this private business while Trump was in the White House.
But New York County prosecutors never considered pursuing the hush money case by itself, because, for one thing, investigators on the DA’s Trump team couldn’t even agree whether Trump committed a serious crime.
Faking business records is merely a misdemeanor in New York, and three sources said Vance wouldn’t greenlight an indictment that would involve a historic law enforcement action against a former president—all to land Trump less than a year at the city’s notoriously violent jail on Rikers Island.
Still, they determined this particular criminal charge could be bumped up to a felony if business records were faked to commit or hide a separate crime—a fact prosecutors wrestled with for months. A recent tell-all memoir by an ex-prosecutor who previously led that team, Mark Pomerantz, goes into vivid detail explaining how he had to resort to building a “creative legal theory” to pursue the case.
One version entailed this local DA attaching the state charges to the federal crime; after all, the whole idea was that Trump had failed to properly log the hush money payment publicly in closely scrutinized reports filed to the Federal Election Commission. But chaining state-level business records charges to an alleged federal crime would open Pandora’s Box, according to one source, because doing so would conspicuously highlight how this should have been a federal case instead.
And that was quite the risk, because the U.S. Attorney’s Office for the Southern District of New York had already chosen not to indict Trump.