People v. Trump
Next Monday, April 15, Donald Trump will report to the Manhattan Criminal Courthouse to stand trial. According to the official summary released this week by Judge Juan Merchan, the case involves allegations that "Donald Trump falsified business records to conceal an agreement with others to unlawfully influence the 2016 presidential election." Specifically, the case will center around Trump's alleged efforts to conceal "payments…intended to reimburse Michael Cohen for money he paid to Stephanie Clifford, also known as Stormy Daniels, in the weeks before the presidential election to prevent her from publicly revealing details about a past sexual encounter with Donald Trump." It will be the first time that a former president has been criminally prosecuted.
Manhattan District Attorney Alvin Bragg announced that Trump was indicted on these charges more than a year ago. Since then, prominent media outlets and pundits have insisted the case against Trump was flimsy and would likely benefit Trump politically. On March 30, 2023, the Washington Post Editorial Board said that Bragg's case against Trump was the "least compelling" of all possible charges against the former president. The Editorial Board warned that a "failed prosecution" of this "shaky" case could "provide Mr. Trump ammunition for his accusations of 'witch hunt.'" A news article published in the Washington Post on February 2, 2024, continued this theme, describing Bragg's indictment as "the weakest" case against Trump.
In an April 5, 2023 column published in the New York Times, Fordham law professor Jed Shugerman, called Bragg's case against Trump a "legal embarrassment." Shugerman predicted that either a state judge would dismiss the case or it would be removed to federal court and dismissed there "on grounds of federal pre-emption" because "only federal courts have jurisdiction over campaign finance and filing requirements." (Neither of those predictions proved correct.) Shugerman described Bragg's case as "a political prosecution still in search of a legal theory."
In a February 16, 2024, piece published by Slate, former federal prosecutor Robert Katzberg called the case "far less significant than the criminality alleged" in other cases and "feels a bit like prosecuting John Gotti for shoplifting."
If these and dozens of other similar commentaries are to be believed, Trump should be looking forward to arriving at the courthouse next Monday. The sooner the case begins, the sooner Trump defeats an obviously weak case. A decisive victory against Bragg would give him momentum entering the home stretch of the presidential campaign and a powerful argument that the other pending criminal cases are also meritless.
But there is one group of people who don’t buy this story: Trump and his attorneys. They are not eager for this case to begin. Over the last few days, Trump's attorneys have engaged in a series of increasingly desperate tactics to delay the trial.
In just the last week, Trump's attorneys have sought to delay the trial by demanding a new judge (because Judge Merchan's daughter works for a consulting firm that has Democratic clients) and a new trial venue (because people living in Manhattan are too biased against Trump). In a more unorthodox tactic, Trump has initiated a lawsuit against Judge Merchan. The lawsuit, which was filed under seal, is reportedly an Article 78 action, which allows people in New York to challenge the actions of a state or local government official on the grounds that they have exceeded their authority. All of these tactics have, thus far, been unsuccessful.
But the actions of Trump's attorneys underscore a fundamental reality: this case is serious and the underlying facts — which are largely uncontested — are damaging to Trump. At trial, the country will learn about Trump's effort to subvert the democratic process.
At their heart, presidential elections are relatively simple. Voters learn things about each candidate and then use that information to select their choice. A campaign is a process of shaping that information environment through ads, events, policy announcements, and other activities. There are some basic rules about how federal campaigns operate. If you spend money to benefit your campaign, it must be publicly reported. If you run an ad, you must disclose that your campaign paid for the ad. The underlying principle of these rules is transparency — voters have a right to know what you are saying and doing to get elected.
This case is about how Trump used illegal means to hide the truth from the American people in order to increase his chances of victory in the 2016 presidential election.
The facts of the case
In a March 2023 statement released in anticipation of charges being filed, Trump's campaign claimed he was "the victim of an extortion plot." This is not what happened. (The statement has been removed from the campaign website.)
Daniels says she met Trump at a July 2006 celebrity golf tournament in Lake Tahoe, Nevada. (There is a photo of the two of them together at the event.) According to Daniels, Trump invited her to his hotel room and promised her a spot on his reality show, The Apprentice. She alleges they had a sexual encounter in his room, which Trump denies. Daniels says that, after their encounter, Trump would call her and invite her to other events, including the 2007 launch of Trump Vodka.
Daniels did not attempt to extort Trump. Instead, she sought to sell the story about her alleged affair with Trump to media outlets beginning in 2011, as Trump raised his profile by floating a presidential run. Life & Style agreed to pay Daniels $15,000 for an extensive interview. But when Life & Style contacted the Trump Organization for comment, Trump's lawyer, Michael Cohen, threatened to sue. Life & Style killed the story and did not pay Daniels. (The full Life & Style interview was eventually published in January 2018.)
After Trump won the Republican nomination in 2016, Daniels did not contact Trump but tried to sell her story again. She received no offers until the release of the infamous Access Hollywood tape on October 7, 2016, placed Trump's sexual mores in the national conversation. It was critical to Trump's chances to put the issue behind him before election day.
Daniels' agent reached out to Dylan Howard, then-editor of the National Enquirer, and asked if he was interested in Daniels' story. What Daniels didn't know is that David Pecker, the then-publisher of the National Enquirer, Trump, and Cohen, had reached a secret agreement at the outset of Trump's presidential campaign to work together to "catch-and-kill" negative stories about Trump. Howard reached a tentative agreement to pay Daniels $120,000 for her story. But Pecker had recently paid Karen McDougal — a former Playmate who alleged she had an affair with Trump — $150,000. Pecker made it clear that he would not spend any more money to bury negative stories about Trump. So Howard advised Cohen that Trump would need to purchase Daniels' silence himself. Cohen conferred with Trump and Pecker and negotiated a deal to pay Daniels $130,000 in exchange for not talking about her alleged affair with Trump.
Cohen negotiated the deal but had no way to pay Daniels. On October 25, two weeks before election day, a lawyer for Daniels, Keith Davidson, called Cohen, complaining that Daniels hadn't been paid. Davidson said that the deal was off and Daniels would resume shopping her story. This put Trump and his campaign in a dire situation. Now, not only could Daniels reveal the story of her affair with Trump in the critical days before the election, but she could also reveal the botched scheme to buy her silence.
After consulting with Trump, Cohen withdrew $131,000 from a home equity line of credit and transferred it to a recently formed shell company, Essential Consultants. The shell company transferred $130,000 to Davidson on October 27.
Daniels' story did not become public before the election, and Trump won by about 70,000 votes across a handful of states.
Having an affair — even one that occurred five months after the birth of your first child with your third wife — is not illegal. But Trump's attempt to conceal the payment to Daniels was when his legal problems started.
After Trump was inaugurated, Cohen invoiced the Trump Organization $35,000 per month to both reimburse him for the payment to Daniels and compensate him for his role in defusing a threat to the campaign. The details of the arrangement were allegedly negotiated in the White House. Cohen was paid a total of $420,000 by the company, and the checks were personally signed by Trump.
Federal prosecutors determined the scheme that was directed by Trump and executed by Cohen was illegal. Among other things, the payments by Cohen, which were ultimately reimbursed by the Trump Organization, constituted unlawful corporate contributions to Trump's campaign. Cohen pled guilty to campaign finance violations and other crimes and was sentenced to three years in prison for his role. But federal prosecutors declined to charge Trump, even though he played a central role in the scheme, either before or after Trump left office.
Bragg, a state prosecutor, is entitled to make a separate determination regarding whether Trump's conduct violated New York law. In the indictment, Bragg states that Trump "repeatedly and fraudulently falsified New York business records to conceal criminal conduct that hid damaging information from the voting public during the 2016 presidential election."
Will 12 jurors from Manhattan agree? We'll find out in a few weeks.
Have times changed so much that we consider it "so last century" when a candidate steps down from a presidential race because we learn that he cheated on his wife and had an affair [Gary Hart 1972]? Is it now fine with The Washington Post and The New York Times for presidential candidates to cheat on their wives? Do we now think that the Stormy Daniels coverup is old news and therefor boring? Bottom line: does the way Trump treats women as objects for sexual pleasure or disregards them as beling below his standard and thus unworthy of respect as our current national standard?
His view of women affects the way our culture deals with women's issues. Most women are now standing up against this Trumpian position with their votes when it comes to their bodies and abortion rights.
The editorial boards of our most powerful newspapers would be wise to wake up!
"In a February 16, 2024, piece published by Slate, former federal prosecutor Robert Katzberg called the case "far less significant than the criminality alleged" in other cases ..."
And yet, someone went to prison for these criminal acts. That the crimes pale in comparison to trying to overthrow the election is a meaningless distinction, at least as far as Michael Cohen is concerned.