Ordinarily, such a charge would be considered a misdemeanor subject to a two-year statute of limitation, meaning Bragg cannot pursue it solely on this basis. Bragg does, however, have the discretion to convert it into a Class E felony, if he can prove that Trump's alleged "intent to defraud involved further criminal intent to either hide the commission of another crime or to assist in the commission of that other crime," according to Saland Law.
In order to meet even the threshhold standard for prosecution, Bragg would therefore need to argue that Trump falsified business records concealing his reported "hush money" payment to Daniels with the intent to conceal another crime.
As a hush money payment to ensure silence about an affair would not be illegal in and of itself, Bragg's case would likely hinge on a possible campaign finance violation. If Cohen's payment to Daniels constituted an illegal campaign contribution, then the falsification of records would have concealed an underlying crime, providing legal predicate for a Class E felony charge of first degree falsifying business records. Trump would face up to four years in prison if convicted on the charge.
Bragg, therefore, needs to demonstrate that the payments occurred specifically with the intent to affect the election, a prospect Turley called "extremely difficult," given the myriad other legitimate reasons Trump might have for wanting to keep an alleged affair out of the spotlight.
Tacopina argues that the payment was not an illegal campaign contribution, both because Trump used his own money and because he would have made the payment regardless of whether he was running for president.