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My understanding is that one of the most legally controversial parts of DA Bragg's indictment of former President Trump is the decision to elevate the charges of falsifying business records — ordinarily a misdemeanor under New York state law — to the felony charges (under New York state law) of doing so with an “intent to defraud [that] includes an intent to commit another crime,” where in this case the "[other] crimes" in question are federal laws. There is arguably some legal ambiguity whether federal laws are included in the "other crimes" portion of the relevant New York state law.

  1. Could DA Bragg have only charged Trump with 34 misdemeanor counts, without elevating the charges to felonies? I believe that had he done so, he would not have needed to empanel a grand jury, since misdemeanor-only charges do not require a grand jury vote to indict. I also understand that such an action may have been politically awkward for Bragg, since he campaigned on a promise not to prosecute misdemeanor-only offenses. But would anything else stop him from doing so?

  2. Am I correct that if Trump's defense team argues that the law that elevates the misdemeanor charges to felony charges does not apply in this case, because the elevation option does not include federal laws, then since this is a matter of law and not a matter of fact, Judge Mercan (rather than the jury) will decide whether or not to dismiss the felony charges? Does Judge Mercan have the option of dismissing the felony enhancement but allowing the misdemeanor charges to proceed, or would Mercan have to dismiss all charges against Trump?

  3. If Trump is brought to trial, then would it be possible for a jury to return a verdict that Trump was guilty of the misdemeanor offenses of falsifying business records but innocent of doing so with an intent to commit another crime? If so, then could Trump still be found guilty of the misdemeanors, or would he be fully acquitted, since the jury ruled that he was not guilty of the exact charges that DA Bragg filed?

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  • Is hiding information from the voters of New York state (among others) to influence them in their selection of the New York state members of the 2016 College of Electors not a violation of New York state law?
    – DJohnM
    Apr 7, 2023 at 21:25

2 Answers 2

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Could DA Bragg have only charged Trump with 34 misdemeanor counts, without elevating the charges to felonies?

Yes.

if Trump's defense team argues that the law that elevates the misdemeanor charges to felony charges does not apply in this case, because the elevation option does not include federal laws, then since this is a matter of law and not a matter of fact, Judge Mercan (rather than the jury) will decide whether or not to dismiss the felony charges?

Yes.

Does Judge Mercan have the option of dismissing the felony enhancement but allowing the misdemeanor charges to proceed, or would Mercan have to dismiss all charges against Trump?

Judge Mercan could probably choose either option if he found that the original charges were not supported by the law. There is law regarding how this decision is made but I personally don't know that area of law well.

One of the reason that I am unfamiliar with it is that it is exceedingly rare for a judge to conclude that the prosecutor's charges are not supported by the law.

I would be very surprised if that judge reached that conclusion in this case, in particular, because both federal election law violations and state and federal tax law violations are implicated by the indictment. The DA no doubt legally researched this issue exhaustively before presenting the charges to the grand jury and has made out a prima facie case for a felony under the applicable New York State law.

If Trump is brought to trial, then would it be possible for a jury to return a verdict that Trump was guilty of the misdemeanor offenses of falsifying business records but innocent of doing so with an intent to commit another crime? If so, then could Trump still be found guilty of the misdemeanors, or would he be fully acquitted, since the jury ruled that he was not guilty of the exact charges that DA Bragg filed?

Whether a jury is presented with a lesser included offense charge at the request of the defense, is partially a matter of the prosecution's election to make that option available or not, and partially a matter of the judge's decision on how to handle it. The body of law involved in how this decision is handled on a case by case basis is quite involved.

Most of the case law involves homicide cases, assault cases, and property crime cases where there are charges with are identical except for aggravating factors for the most serious charges. But, lesser charges generally aren't presented if based upon the evidence presented at trial, either the more serious charge is established or no charge is proven.

For example, if the defendant presents an alibi defense, and a witness whose credibility is disputed places the defendant at the scene intentionally committing a crime, a lesser included offense charge would not be appropriate.

But, if the defendant admits hitting a pedestrian and causing the pedestrian's death, but claims that the pedestrian was at fault in the accident for jay walking, while the prosecution alleges that the pedestrian was intentionally struck as part of a mafia hit, multiple lesser included offenses would probably be charged involving different levels of intent of premeditated intent/aggravated circumstances killing (first degree murder), to a knowing killing (second degree murder), to a reckless killing (manslaughter), to a criminally negligent homicide or vehicular homicide charge.

Typically, the decision on this point would not be made until all evidence was received and the judge in a hearing away from the jury but in the presence of the prosecutors and defense counsel crafted jury instructions based upon the evidence presented at trial and the arguments raised by counsel at trial.

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  • 2
    statue of limitations seems to be a common talking point…
    – jmoreno
    Apr 6, 2023 at 23:53
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    @jmoreno I'm not following the case that closely. Totally off topic from this question, of course.
    – ohwilleke
    Apr 6, 2023 at 23:57
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    Legally irrelevant, possibly, off-topic as it applies to this question, hardly.
    – jmoreno
    Apr 7, 2023 at 3:57
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Could DA Bragg have only charged Trump with 34 misdemeanor counts, without elevating the charges to felonies?

No. The statute of limitations for misdemeanors is only 2 years in New York so this would have had to have happened in 2018, maybe 2019 at the latest, at which point 1) DA Bragg hadn't become DA yet, and 2) Trump was still a sitting president. There are some ways to extend the statute of limitations in NY, but none that seem to apply here.

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    This point is addressed about halfway through this article. The authors believe that Trump is still within the two-year statute of limitations to be charged with a misdemeanor, because the clock is paused for every day that Trump spends outside of New York state. It isn't clear how much cumulative time Trump has spent in New York state since the last alleged crime ocurred, but it could be as little as three months. Apr 6, 2023 at 22:45

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