If Donald Trump were to be indicted for having a tawdry tryst with a trollop, he should probably plead guilty post haste. But the case brought against him by the Manhattan district attorney’s office is not about whether or not he cheated on his wife with porn actress Stormy Daniels, and it’s far more tenuous than his detractors would like to believe.
The case for a felony indictment is complicated, and as Trump might say, has “big problems.” To hang the former president’s scalp on his office wall, DA Alvin Bragg will have to eventually convince a jury that no one may take otherwise perfectly legal steps to protect their reputation if they happen to be running for office. And that just doesn’t make a lot of sense.
First, some background. Daniels claims she and Trump had a fling in Lake Tahoe back in 2006. And in October of 2016, just as Trump was on the brink of becoming president, either Trump or people close to him realized they could be looking at what Bill Clinton’s people used to call a “bimbo eruption.” Trump allegedly reached a deal to pay Daniels $130,000 to not tell after kissing.
Generally speaking, paying hush money is not illegal. It’s two people entering into a contract not to talk about whatever happened between them. Call it gross, offensive, sordid, or unseemly. Just don’t call the police.
There were, however, some apparent problems with the way Team Trump paid Daniels. Bragg’s office claims that the money was paid through Trump’s turncoat fixer, Michael Cohen, and falsely recorded as Cohen’s legal retainer. If prosecutors can prove that, they’ve got the Trump Organization for misdemeanor falsifying of business records. That would merely merit a slap on the wrist and hardly satisfy liberals who consider the orange man their white whale and have been trying to lock him up since he entered politics.
However, if prosecutors can prove that the records were falsified to hide another crime, the misdemeanor becomes a felony. Since that is what Bragg’s office appears to be shooting for, what, exactly, might that second crime be? Speculation has long been that it would be a violation of New York election law, meaning basically that Trump had Daniels paid off to protect his presidential bid and didn’t report it as a campaign expenditure.
Here’s the problem: Wouldn’t a high-profile businessman and television star whose every move was reported in the New York tabloid gossip pages long before he dreamed of the White House have other reasons to keep such an embarrassing secret? What married man would want a porn actress blabbing about a decade-old fling? Surely not only an aspiring politician.
If payment of the hush money is to be viewed purely in the context of Trump’s presidential campaign, that would mean anyone can enter into a contract with a willing party to not discuss a particular matter unless they are running for office. Daniels going public certainly would have hurt Trump’s chances in the following month’s election, especially after the damaging “Access Hollywood” video had already called into question Trump’s character and fidelity. But even Citizen Trump had plenty of reasons to want her story kept out of the press.
Bragg’s office has not said if it will go for a felony indictment, much less confirmed what its legal theory would be, but impaneling a grand jury to pursue a misdemeanor against a former president seems like an ill-advised stretch and waste of time. Cohen, who pleaded guilty in 2018 to federal charges related to the payments, has been the star witness before the grand jury, which has also reportedly heard from another half-dozen witnesses.
Daniels reportedly offered to testify before the panel, but so far has not been called. Trump was invited to testify but declined. Sources close to Bragg’s office have reportedly signaled that a true bill could be imminent. Unlike a criminal trial jury, which must be unanimous to support a conviction, a grand jury can indict with a majority – hence the old legal saw about a prosecutor being able to “indict a ham sandwich.”
If Trump becomes the ham sandwich, Bragg’s office will face a much bigger hurdle when the case goes to trial. Trump’s lawyers will make a strong case that any payments made to Stormy were a tempest in a teapot. Then again, Trump’s fate may not hinge on arcane interpretations of campaign finance laws. It may come down to whether 12 New York jurors want his scalp as badly as Bragg does.