Trump's Hush-Money Trial Is a Rorschach Test

Photo-illustration: Intelligent; Photos: Getty

Donald Trump is about to be tried for conduct that occurred eight years ago; If you have kids in college today, they might have been in elementary school when everything went south. The crime is an administrative offense related to how Trump and his companies recorded a series of perfectly legal (if improper) secret payments in their own internal records. The prosecution's star witness is a convicted perjurer and fraudster who openly spews vitriol at the accused, often in grotesque terms, essentially for a living. The notoriously aggressive federal authorities in the Southern District of New York dropped the case years ago, and the current Manhattan District Attorney's predecessor, Alvin Braggs, could have indicted him before leaving his duties, but he did not do so. The charges are either misdemeanors or the most minor crimes (depending on how the jury decides the case), and the vast majority of defendants convicted of similar offenses are sentenced to probation and fines, and no to prison.

Donald Trump is about to go on trial for misleading American voters and attempting to interfere in the 2016 presidential election. The world had just heard the infamous Access Hollywood catch them on tape, and the Trump campaign Trump was reeling just weeks before Election Day. To keep his IPO campaign from capsizing, Trump and his team paid porn star Stormy Daniels to keep silent about an alleged extramarital affair, then called the payments legal fees. Already the first U.S. president or former president to be indicted, Trump could soon become the first to be convicted of a crime, and it's possible he could lose the 2024 election and end up behind bars.

The previous two paragraphs are true. There is no opinion or editorial there. Every statement is a fact. It's all about characterization. This is evidenced, for example, by the mini branding war that broke out around this affair. Many media outlets and commentators refer to it in shorthand as the secret money affair. But the prosecutor's office and its supporters insist on a wordier but (in their view) more descriptive 2016 election interference case. Either one works in its own way.

Most criminal cases hinge on binary questions: Did this defendant pull the trigger? Did this defendant know that the duffel bag in his trunk contained kilos of heroin? Did the defendant intend to steal money from investors or was she trying in good faith to save a bankrupt company? But this case rests largely on questions of interpretation. Trump did what he did, but is it really a crime, and do we really care?

Let's start with the first question: yes, it really is a crime if proven. But it's critical to understand exactly what the charges are (and aren't), because the tabloid aspect of all this bribery, politics and pornography tends to obscure operational legal issues.

First: paying money for silence is not a crime. In fact, a hush money deal, while shabby, is legally no different from any other contract between private parties. So Trump knowing about Daniels' payment, and he clearly did, is just a starting point here and insufficient to prove anything criminal.

The crime charged in New York State is falsifying business records. The DA alleges that Trump fraudulently had the hush money payments recorded on his internal books as legal fees (rather than, I don't know, as hush money for a porn star). If proven, it is simply a misdemeanor, a low-level crime that will almost certainly result in a non-prison sentence. For comparison, under New York code, falsification of business records has the same technical designation as shoplifting merchandise under $1,000.

The evidence on the point of tampering is mixed. Trump clearly knew about the payments and signed some of the checks to reimburse the payments to his former lawyer (turned star prosecution witness) Michael Cohen. But it's not entirely clear whether Trump was involved in actually recording these payments in his company's internal records, remember that's the crime. In fact, when Cohen secretly recorded his then-client talking about a hush-money payment to another woman in 2016, Trump appeared to have no idea of ​​the accounting mechanism. Cohen explains to Trump: “I spoke with Allen Weisselberg about how to put this together, referring to the CFO of the Trump Organization. Later, when Trump asks if they will pay in cash, Cohen responds: No, no, no, no, no. Got it. Trump's team will therefore argue that it was the lawyer (Cohen) and the accountant (Weisselberg), not Trump, who handled the recording of the payments. Cohen will surely testify that Trump was involved not only in the payments, but also in the internal accounting relating to them. The jury will decide.

If the jury finds Trump guilty of the business records charge, the next question is whether he falsified the records to commit other crimes, primarily here, according to the prosecutor, campaign finance violations. According to the theory, Trump faked the records because he did not want the alleged affair with Daniels to become public and damage his then-current presidential campaign. Therefore, the secret payments were actually campaign contributions that exceeded federal limits and were improperly reported. If the DA prevails on this point, the crime becomes a Class E felony, the lowest of five felony levels under New York law. While Trump would face a maximum of four years in prison in this scenario, the vast majority (but not all) first-time nonviolent Class E felons receive probation and fines, but not prison.

The conventional wisdom is that the Manhattan case is the least important, and will have the least impact, of Trump's four pending indictments. The first part of this proposition cannot be reasonably disputed. Clearly, Trump's efforts to steal the 2020 election (as charged in the federal case of DOJ Special Counsel Jack Smith and the DA Fani Williss case in Fulton County, Georgia) and the former president's retention of classified documents at Mar-a-Lago (as accused in Florida). in Smith's other federal case) involve conduct more serious than falsifying hush money records. Bragg himself said last year that broader justice might justify another case being opened first. This doesn't necessarily mean that the charges against Manhattan aren't serious overall, but they are clearly the least serious of the four.

Yet even with a fourth place off the podium, the DA's case could have a modest but potentially decisive impact on the electorate. A recent poll by Politico and Ipsos is revealing, if a little confusing: 36% of independents said a conviction in the Manhattan case would make them less likely to vote for Trump in 2024. (Note that independents and undecideds are not necessarily the same thing; I suspect many of these independents have already made up their minds for and against Trump.) One way or another, 9% of independents said that a conviction of Trump in the Manhattan case would make them more likely to support him. (Really? How?) Even if you take stock, a 25% gap to Trump among independents is substantial, and in a razor-thin election, that number could make all the difference.

With each passing day, it becomes more and more likely that this will be the only Trump criminal case tried before Election Day. Smith's January 6 case is in limbo and at the mercy of the Supreme Court, his classified documents case is failing with no trial date set, and the Fulton County case is a mess with no chance of getting a pre-election verdict.

Still, overall, the odds are in favor of prosecution here. The good majority of criminal cases that go to trial result in a conviction, and the parties will choose a jury from a group of staunchly anti-Trump Manhattanites. The question, as always with Trump, is whether the outcome, even one as brutal as a criminal conviction, will have an impact.

This article was originally published in the free CAFE Brief newsletter. You can find more analysis on law and policy from Elie Honig, Preet Bharara, Joyce Vance and other CAFE contributors at CAFE.com.

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