Manhattan District Attorney Alvin Bragg speaks during a news conference at Manhattan District Attorney's office, Thursday, Sept. 8, 2022, in New York. (AP Photo/Yuki Iwamura)

Will the first criminal indictment of Donald Trump come from the Department of Justice? Or from Fani Willis, the Fulton County district attorney investigating Trump’s find-me-the-votes efforts to change the electoral outcome in Georgia? Or maybe the indictment will come from Alvin Bragg, the Manhattan DA who has just convicted the Trump Organization of a 15-year-old tax scam featuring off-the-books payments for luxury apartments, high-end cars, and private school tuition?

If Bragg, a progressive prosecutor who has taken heat over what critics have called more lenient attitudes towards violent criminals, were to indict and convict the Corleone crime family as an entity, it would hardly be a great boost for law enforcement or the prosecutor. Vito, Sonny, Michael, and even Fredo would be free to commit more crimes and even run for office because a conviction of Genco Olive Oil is not the same as sending the Don to Sing Sing. The same is true for Trump and the Trump Organization. The 45th president is free to commit crimes even if his company has been found guilty.

No one has gotten around to indicting Trump over the January 6 insurrection or the Mar-a-Lago documents. However, criminal referrals from the congressional committee investigating the insurrection are forthcoming for all they may be worth. Bragg managed to get a tiny notch on his belt when he convicted the Trump Organization. But, as the man said, “Mighty oaks from little acorns grow.”

Why did Bragg not indict the Don instead of Alan Weisselberg, the cooperating CFO of the Trump Organization, who will do time?

The conviction is a small bite of the prosecutorial apple. No one named Trump will go to jail when the organization is sentenced on January 13, and the maximum punishment of $1.67 million is more like a rounding error than a just penalty for 15 years of tax fraud.

So how will this conviction affect the 2024 presidential candidate?

First, the Trump Organization will appeal, and it has a decent argument that Weisselberg committed tax fraud for his own benefit, not that of the Trump Organization. (He received compensation in the form of tuition for his grandchildren and a luxury apartment without informing the IRS.) We all should be so lucky.

Even if the organization loses the appeal, Trump will argue in the court of public opinion that he is the victim, and that Bragg (a Democrat) has colluded with the Deep State. Collusion is a subject with which Trump is intimately familiar, as is victimhood. 

Reputational damage? Trump’s name is already vilified by those that despise him, and the conviction will not shake the cult that idolizes him.

For all the talk of the rise of Ron DeSantis and Republicans growing weary of Trump, a prosecution may, ironically, be just the thing to put him back on top. Defeated authoritarians almost always benefit from what they portray as persecution. Hitler came back from jail, where he wrote Mein Kampf. Peron returned to power in Argentina. And Napoleon bolted from Elba after nine months. The prosecution is the propulsion. It is human nature to want to come back, and stories of the unjustly persecuted resonate deeply.

What will Bragg do next? Will he be able to turn the conviction of the Trump Organization into a criminal conviction of Trump?

Bragg shied away from prosecuting Trump for business fraud last February. His predecessor, Cyrus Vance, Jr., who left the job in 2021, had teed up the charges queued up nicely, but Bragg wouldn’t swing. Two prominent prosecutors who had joined Bragg’s staff to work the case resigned in protest.

But there are still signs of some fight left in Bragg. Recently, not without fanfare, he confirmed the appointment of Matthew Colangelo, formerly the third-highest ranking lawyer in the Department of Justice who helped lead the New York State investigation of Trump’s charities which expanded into a civil investigation of Trump by Tish James, the New York State attorney general.

Here is a long shot that’s still intriguing:

Remember porn star, Stormy Daniels? Trump’s fixer lawyer Michael Cohen went to jail for the $130,000 hush money payment he made to Daniels in 2016. The payment was papered up as a legal fee and not properly reported on federal election forms as a campaign contribution.

The payment, said Daniels, was to buy her silence about an alleged affair with Trump.

Is an under-the-table payment to a candidate’s mistress 10 years after the event a stale claim barred by New York’s five-year statute of limitations in New York? Not a problem. Periods not included in the count are any period following the commission of an offense during which the defendant was continuously outside the state of New York. The offense—the illegal payment—was in 2016. Last I checked, Trump was mainly in Washington and elsewhere from 2017 to 2021 and at Mar-a-Lago most of the time from 2021.

There is nothing illegal about having an affair or paying a porn star to keep things quiet. If the Daniels payment was not only to keep Melania in the dark but also to keep the voting public in the dark, it’s a campaign violation.

According to reports, Bragg’s office is considering charges against Weisselberg to pressure him into spilling the beans about any tax benefits Trump may have derived from the Daniels payment. So far, Weisselberg has testified against the Trump Organization but not Trump himself.

The presidential election of 1884 centered on the issue of corruption. The Democrats assailed the Republican candidate James G. Blaine, charging that he had wrongfully profited while in Congress from railroad interests, with the ditty: “Blaine! Blaine! James G. Blaine! Continental liar from the State of Maine!” In response, the Republicans unveiled the accusation that the Democrat Grover Cleveland was said to have sired a child out of wedlock: “Ma, ma, where’s my pa?” When Cleveland defeated Blaine, the Democrats added to the ditty: “Gone to the White House, ha, ha ha!”

The payment to Stormy may be criminal not only under federal law but New York law as well. Bragg’s prosecutors need to prove that the falsity of the business records was intended to cover up another crime. Vance had concluded that the payment to Daniels only covered up a federal election crime, not a New York state crime. But, under New York law, the Federal felony need not be a mirror image of the New York felony, precisely corresponding in every detail. Still, it must have “essential similarity.” The cover-up of the federal crime has an “essential similarity” to a criminal violation of the New York Penal Law, which is what Bragg is reportedly pondering. Offering a false instrument for filing with a public office is a crime in New York. One more twist: Trump married Melania in 2005. And adultery is still a crime in New York. But it is not a crime in California. Stormy claimed that she had sex with Trump in the Beverly Hills Hotel. Ha, ha, ha!

James D. Zirin

James D. Zirin is a former federal prosecutor in the Southern District of New York.