Obviously not a lawyer, and I’m coming to agree more and more with bmaz, but from my readings I gather there are multiple possibilities to expand of the “falsifying” charges into felonies:

1.) Possible NY state tax fraud.
2.) A transaction we know (due to Cohen’s conviction) to be a felony against Federal election law. NY law is a little ambiguous about whether Federal laws count in this regard.
3.) To cover up “other illegal activity” under NY law. Not sure what it would be other than
my 1.) or 2.) above, but maybe Bragg has something up his sleeve.
4.) ~Skeptical glance~ Maybe conspiracy if that’s felonious all by itself – this assumes that NY laws will support this interpretation and they may not do so.

Also, Trump has probably obstructed justice and may have illegally threatened the DA, both of which could lead to additional charges. (Further, Donald Trump Jr. posted a picture of the judge’s daughter on Truth Social, so he may also end up before a judge.)

This means Bragg’s team would have to strike out at least three different times for a judge to say “none of these are felonies.” Not sure what to say beyond this, but let’s not pretend there aren’t multiple pathways for a judge to agree that at least one felony can be reasonably charged, and that each pathway to this outcome increases the overall chances. Once again, however, I’m generally starting to agree with bmaz about this set of charges – we’ll have to see whether Bragg brings the good stuff.

I think I’ve found the explanation for Bragg’s behavior, and I’d be very interested in having you read the whole thing and comment on it. It’s a piece by Norman Eisen (and a couple co-authors) which discusses the actual written laws of New York with regard to falsifying business records in the second degree (a misdemeanor) and what must be done, once again quoting New York’s written laws to turn it into falsifying business records in the first degree, which is a felony.

Most significantly, the piece also shows that this is commonly done in New York courtrooms, (which is probably why Bragg didn’t provide a longer explanation of why/what he was doing – the judge would have understood from context.) Bragg’s office has previously prosecuted nine of these cases. Eisen and his co-authors demonstrate that this is common practice in NY with a 22-page chart showing the last decade and a half of these cases as prosecuted in New York State. Note that the underlying crime which allows the “falsifying” charge to be increased to a second-degree felony does not have to be proved, as shown here, with references to specific legal cases:

“Although the jury acquitted defendant of insurance fraud,
which is the crime the People alleged that defendant intended
to commit or conceal by falsifying business records, the jury
could “convict defendant of falsifying business records if the
jury concluded that defendant had intended to commit or
conceal another crime, even if he was not convicted of the other
crime” (People v. McCumiskey, 12 A.D.3d 1145, 1146, 784
N.Y.S.2d 816 [4th Dept. 2004]; see People v. Crane, 87
A.D.3d 1386, 1386, 930 N.Y.S.2d 338 [4th Dept. 2011], lv
denied 17 N.Y.3d 952, 936 N.Y.S.2d 78, 959 N.E.2d 1027
[2011]).” People v. Holley, 198 A.D.3d 1351, 1352, 155
N.Y.S.3d 258, 260 (2021), leave to appeal denied, 38 N.Y.3d
928, 184 N.E.3d 851 (2022)

24-page version here as PDF: https://www.justsecurity.org/wp-content/uploads/2023/03/survey-new-york-felony-falsification-of-business-records-just-security.pdf

Short version here: https://www.justsecurity.org/85605/survey-of-past-new-york-felony-prosecutions-for-falsifying-business-records/

I’m afraid there’s more. I found another article by Eisen and his cohort which includes multiple quotes from case law on this subject. The State of New York apparently applies this law very broadly, and will move from the misdemeanor to the felony version of the law given almost any excuse. For example:

So, how does New York State law define the “intent to defraud” for the criminal offense of falsifying business records? A long line of New York state court cases supports an expansive conception with respect to § 175.00 crimes – namely, that intent can be established when a defendant acts “for the purpose of frustrating the State’s power” to “faithfully carry out its own law.” People v. Kase, 76 A.D.2d 532, 537–538, 431 N.Y.S.2d 531, 534 (N.Y. App. Div., 1st Dept. 1980), aff’d, 53 N.Y.2d 989, 441 N.Y.S.2d 671, 424 N.E.2d 558 (1981).

… (skipped several paragraphs.)

The First Department decision in Kase established the broad conception of “intent to defraud” – that it does not require an intent to deprive another person of money, property rights or a pecuniary interest – in a matter concerning the crime of Offering a False Instrument for Filing in the First Degree (§ 175.35). The defendant was charged with filing a false statement in an application for a liquor license. According to the court, an intent to “frustrat[e] the State’s power to fulfill [its obligation to carry out the law] violates the statute.” 76 A.D.2d at 537–538, 431 N.Y.S.2d at 534. The decision was affirmed by the highest New York court, the New York Court of Appeals.

There is no need to guess how Justice Merchan would rule as to whether that standard applies in the falsification of business records statutes. The First Department has long said the Kase test applies to §§ 175.05 and 175.10, most recently in 2018 in People v. Sosa-Campana, 167 A.D.3d 464, 89 N.Y.S.3d 75, (N.Y. App. Div., 1st Dept. 2018), leave to appeal denied, 2019 N.Y. Slip Op. 97967, 33 N.Y.3d 981, 101 N.Y.S.3d 257, 124 N.E.3d 746 (N.Y. 2019); see also Morgenthau v. Khalil, 73 A.D.3d 509, 902 N.Y.S.2d 501 (N.Y. App. Div., 1st Dept. 2010).

Another very long read here, quoting several legal cases: https://www.justsecurity.org/85831/the-broad-scope-of-intent-to-defraud-in-the-new-york-crime-of-falsifying-business-records/

bmaz, I would agree with you as to effect, but not to cause.

That is to say, if you dig into those stories, particularly the second I posted, you’ll find Eisen and friends quoting one legal case after another, all implying that New York uses “falsifying business records” as a sort of deliberately sloppy legal catchall which allows them to prosecute any number of behaviors, many of which should probably be made explicit as separate crimes. In short, it appears to be a vaguely written law for which lots of legal excuses have been made and will continue to be made.

So I don’t think Bragg is the problem so much as the deliberately muddied legal environment (in which he and the judge both swim like fish.*) And while your sense of justice is properly outraged by this it seems to be the way the system works in NY.

* Duuude! Why don’t you just overextend the metaphor a little further?

~shrugs~ They’ve quoted a lot more case law than you have… I guess we’ll have to see what happens.