Benjamin Wittes Reveals ‘Critical Piece’ of New Evidence and the ‘Legitimate Questions’ Unanswered In the Trump Indictment

Benjamin Wittes, legal expert and editor of LawFare, joined Charlie Sykes on the Bulwark Podcast Wednesday for a deep dive into Manhattan DA Alvin Bragg’s charges against former President Donald Trump.

Wittes, who said he was skeptical of Bragg’s indictment before reading it, detailed what new evidence Bragg brought forward that surprised him and the “legitimate questions” he argued Bragg left unanswered in the charging document.

At one point in the lengthy conversation, Wittes said the 34 felony charges are “presented as a much more orchestrated scheme and much more closely tied to electoral machinations than I had understood before.”

“And the critical piece of evidence here, which I think is new, is this contention that there was an explicit understanding, meeting or statement between participants in this. If you could get this until after the election, you don’t have to pay because it doesn’t matter if it comes out after the election,” Wittes explained.

“So much for trying to keep it quiet because you were concerned that Melania would get mad. They actually have details in there that that in fact, Trump didn’t care if it came out after the election,” replied Sykes.

“Exactly. And so I do think the factual claims and I thought Bragg was fairly effective yesterday in his press conference about saying, hey, this is not unconnected to concerns about Democratic integrity,” Wittes responded, adding:

If you’re launching a scheme in the immediate run-up to the election to pay off people with bad information and then disguise the payments as routine business records by way of influencing voters, that is not unrelated to, you know, election interference to the Russia stuff which was happening concurrently. It’s not directly related, but it’s it kind of sounds in in echoes of that.

The second thing that I thought was interesting again, in a sort of positive sense was that I do think the evidence that the statute in question is kind of bifurcated. There’s the misdemeanor version of the statute, which is just if you falsify business records with intent to defraud, and then the felony level is if you falsify business records with intent to defraud, while in the course of that or intending to commit some other crime. They have him, I think, pretty dead to rights on the misdemeanor stuff, like the business records were falsified. And it surely wasn’t with innocent intent.

And so I think one of the things that gets lost in here is that there’s 34 misdemeanor counts that are really unsubtle. So the question of the integrity of the indictment really boils down to the question of this step up. Was this done with the intent to commit some other crime? And if so, which crime? And here I think there’s legitimate questions about the indictment, honestly.

It’s not completely obvious what the crimes he was intending to commit were

“He didn’t spell it out in the indictment?” Sykes added.

“Right. We all expected that Bragg would lay this out in the documents released yesterday and he didn’t. He said very candidly at his press conference, I didn’t because I don’t have to yet,” Wittes explained, adding:

I just have to make allegations and I have to state a claim under the statute I did that. The result is that that analysis that we’re all going to do of whether he’s really got a case for felony step up here is going to be deferred until we see briefing on a motion to dismiss. And so I think that the challenge to this indictment, intellectually and legally, has not really been resolved. I think people are still on both sides, both in defense of it and in criticizing it, are being just way too confident about what we know. And my working theory is that the facts with Trump are always worse than you expect.

And therefore, the step up is probably, you know, probably has integrity. But I don’t think the public record supports that yet. I do think Bragg acquitted himself quite well yesterday. And so I have more confidence in this process than I did a week ago.

Listen to the clip above and the full podcast here.