If you slice and dice one payoff into 34 misdemeanors with the intent to claim each action intended to cover up a serious crime … shouldn’t you name that crime? Alvin Bragg still hasn’t done so, despite going through with an arraignment on what appears to be a secret charge of some sort.

Presumably, Bragg will argue that Donald Trump violated federal campaign-finance laws and falsified business records to cover it up. That isn’t the only possibility, as we’ll see in a moment, but that has been the leading theory. That theory of the crime has two big problems, however. First off, the Federal Election Commission and Department of Justice have jurisdiction over federal campaign-finance regulation, not a county DA. And second, as one FEC commissioner explained yesterday afternoon to Paul Bedard, the FEC already investigated it — and concluded no crime had been committed by Trump, as did the DoJ (via Off the Press):

A key member of the Federal Election Commission today rejected the Manhattan district attorney’s indictment of former President Donald Trump as a violation of federal election laws.

“It’s not a campaign finance violation. It’s not a reporting violation of any kind,” said FEC Commissioner James E. “Trey” Trainor. …

“I don’t know how you get around the evidence that both the Department of Justice in their investigation of the federal campaign finance issues and the Federal Election Commission in their ultimate jurisdiction over campaign finance issues, neither of them found there to be any violations whatsoever, and I think the jury is going to see that and they’re going to have to rely upon the fact that both the law enforcement experts and the civil enforcement experts, as far as campaign finance are concerned, didn’t find any violation of the law here,” said Trainor.

If the judge hearing the case sticks to the rule of law, it’s tough to see how a jury gets to this question at all. In the first place, prosecutors are generally not allowed to withhold charges in an arraignment. An arraignment is supposed to formally satisfy the constitutional requirement that defendants get fully apprised of the charges against them. It’s not unusual to add counts to indictments after arraignments as investigations proceed, but it’s unheard-of to predicate misdemeanors into felonies on the basis of covering up another felony without naming the felony on which the other felony charges are predicated. We do not allow prosecutors to use secret charges in American courtrooms, or at least we didn’t until now. That defect is front and center in Bragg’s presentation in court even before a judge tackles jurisdiction.

Will Judge Juan Merchan deal with that issue? That’s one reason why Jonathan Turley calls this case a “test of the justice system” in New York, but Merchan may not end up handling this case. Trump and his team have been laying out a public case for recusal on the basis of family connections to Trump’s political opponents, plus they will also move to change the venue either shortly afterward or simultaneously. But this defect should precede everything else, and it should result in a dismissal or a demand for Bragg to immediately amend the indictment to include the predicate felony.

Assuming the court gets to jurisdiction, though, Trainor’s point is unassailable. Bragg has no more authority to enforce federal campaign law than he does to charge crimes that occur in other states.

But what if the predicate felony isn’t a federal campaign-finance violation? Bragg hinted at the presser after the arraignment that the underlying felony was a state crime, even though his statement of facts attached to the indictment hinted at a federal campaign-finance violation. Another theory floating since the arraignment is that Bragg will charge Trump with conducting a fraud on voters in New York County through paying off Stormy Daniels (and presumably Karen McDougal) to keep them from talking about his extramarital affairs. That theory has any number of problems, starting the John Edwards precedent in which it became impossible to prove that Edwards paid off Rielle Hunter to protect the campaign, as opposed to just keeping the tryst from his terminally-ill wife. Trainor doesn’t cite US v Edwards, but points out that the FEC had the same impossible burden of proof in the Trump-Cohen case:

Third, it is not obvious that the reason for the payment and the reimbursement to Cohen was to influence the election, thus failing the “objective standard” of law. “It has to be something that anybody on the street can look at and say the only reason you did that was to influence the campaign,” said Trainor. “There’s a lot of reasons that he could have done it that aren’t related to him being a candidate for president, and so therefore, it wouldn’t have met the standard as campaign expenditure under federal law,” he added.

Bear in mind that the FEC operates civilly, not criminally, which has a lower burden of proof — and they didn’t think they could sustain a finding of violation even on the lower standard of ‘preponderance of evidence.’

However, the fundamental flaw of the fraud-of-voters theory is even more apparent in the indictment itself. Andrew McCarthy points it out in the New York Post by just looking at the dates on the charges. What year did Trump win the presidency?

Alvin Bragg alleges that Donald Trump defrauded voters into electing him president on November 8, 2016.

Alvin Bragg also alleges that the first crime Donald Trump committed occurred on February 14, 2017.

Are you seeing the problem here?

One problem, sure. There are others, however, which include a complete lack of criminal intent and actual crimes for such a predicate:

There’s just one thing: The only schemes Bragg accuses Trump of carrying out prior to the 2016 election are non-disclosure agreements. More darkly stated, the NDAs were hush-money deals to silence people who were otherwise poised to reveal information that would have damaged Trump politically.

Yet there is nothing illegal about NDAs. They are a staple of civil litigation and private negotiations. And while some of the underlying information, if revealed, would have portrayed Trump in an unsavory way, none of that information involved illegal activity.

It is not illegal for a married politician to have affairs with porn stars and Playboy models. It is certainly unethical to do do, but prosecutors don’t enforce ethics; voters get to make that decision when it comes to politicians. It is not illegal to offer financial remuneration in exchange for an agreement to keep such matters private, either. Again, we can debate the ethics of NDAs, but also again, that’s a matter for voters to weigh, not prosecutors. It is also not a fraud for politicians to keep potentially derogatory non-criminal information from voters before an election. If it were, every politician who ever ran for office would be in prison, likely including Bragg himself.

So what’s the crime?

If paperwork for those transactions are somehow falsified in a manner that forms the basis for fraudulent tax or stock valuations, that might be a criminal matter (although in most cases it would likely be handled civilly if restitution is offered). But that’s not the case here. Trump owns his own business, so he’d be essentially defrauding himself. Bragg hasn’t given any indication that these filings mattered in the least when it came to tax revenue — which is the only legit interest his office might have in such ledger entries.

In short, Bragg doesn’t have a case; he has, as Jonathan Turley says, a “legal Slurpee.” Every step in the justice system that doesn’t result in dismissal is a sign that the justice system in New York has been derailed by partisanship and vendetta. The only fraud here is Bragg.