Here are six things to think about ahead of any indictment and arrest of Donald Trump:
1. What is Trump going to be indicted for?
Trump may soon be indicted on a campaign finance law violation. This means Manhattan district attorney Alvin Bragg has convinced a grand jury there is enough evidence to charge Trump with the crime (federal prosecutors seem to have long abandoned the cheesy political revenge fantasy).
2. But I thought this was all about Trump having an affair with some porn star?
Stormy Daniels allegedly had sex with Trump in 2006, which he denies, and which she and Michael Cohen also once denied. She then took money in 2016 to sign a nondisclosure agreement, or NDA, to keep silent. Sensing an opportunity when Trump ran for president, she willfully violated the NDA to revive her career and profit off of selling her story to the National Enquirer.
Meanwhile, when faced with jail time for all sorts of dirty deeds, Trump’s now-disbarred former lawyer Cohen, a felon himself, violated attorney-client privilege to claim on his word that the NDA payoffs were actually complex technical violations of campaign finance law. If all this sounds complicated, that’s because it is. Even the Washington Post has labeled this a “zombie case.”
3. So the problem is the hush money paid in 2016?
Not really, but sort of. Paying money as part of an NDA is not illegal; lawyers regularly obtain discreet resolutions of issues threatening the interests of their clients. Without admitting guilt, money is paid from Party A to Party B in return for dropping all future claims, agreeing to never mention something again, handing over documents or photos — whatever you like. It happens all the time, and it’s the dirty little secret that keeps sexual harassment alive and well. Wealthy men pay women to remain silent under NDAs. It does not change the legality of all this even if the media calls those payments hush money or payoffs.
The what in this case (money for silence) is clear. It is the why that matters most. The why also affects any potential sentence: Trump lying would be a misdemeanor if it is proved that all he did was falsify his business records, but it could be a felony if prosecutors can prove that the falsification was tied to another crime. That’s where campaign finance laws come in.
4. The case, if it ever goes to trial, will hinge on intent, or what Trump intended the money to do for him
One has to intend to violate campaign finance laws. Any illegality comes from the supposition by Michael Cohen that he can speak to Trump’s intent, that the NDA was not, say, merely to spare Trump’s marriage some new embarrassment, but “for the principal purpose of influencing an election.”
If the purpose was hiding Stormy from voters instead of hiding Stormy from Trump’s wife, then the money could be seen as a campaign contribution and a whole new set of laws kick in. But “it should be clear,” says the New York Law Journal, “Cohen’s plea, obtained under pressure and with the ultimate aim of developing a case against the president, cannot in and of itself establish whether Trump had the requisite mental state.” If DA Alvin Bragg has other key witnesses beyond Stormy and Cohen, he has not signaled as much.
It’ll be up to a jury to decide if Cohen’s testimony proves Trump knew the payments made to Stormy were illegal. Prosecutors would have to prove willingness by Trump alongside proving that his principal goal was to influence the election. If this ever reaches court, Trump will simply deny everything — and it would be a rare jury that says weighing one man’s word against another, especially these knuckleheads, eliminates all reasonable doubt. Felons testifying out of self-interest make poor witnesses. Michael Cohen pleaded guilty to eight criminal offenses, including lying to Congress, tax fraud, and campaign finance violations. Cohen will face questions of personal bias, given his own multiple lawsuits against Trump. He will face questions about whether he received a benefit from prosecutors — early release from prison — for cooperating.
5. Seems like an awful lot rests on what the jury ‘believes’ versus what can be proven
Trump need only introduce doubt to prevail. But that’s not where the jury question will first come up. Trump’s lawyers are already hinting that they will demand a change of venue, that it will be impossible to seat an impartial jury in Manhattan. Moving the whole show to, say, Pittsburgh or Seattle will only increase the circus-like atmosphere and add to Trump’s public-facing argument that this is all unfair.
6. Trump denies the affair. So how do we know he paid Stormy to keep quiet about the sex?
DA Bragg will need to do some heavy lifting to connect Trump directly to the NDA payment. The check for $35,000 from Trump to Cohen — supposedly part of $135k paid to Stormy Daniels — was displayed by Cohen at his 2019 congressional hearing, and ten others alleged to exist do not show what the payments were for. The checks do not have Stormy’s name on them. Cohen simply claimed they were part of his reimbursement for “illegal hush money I paid on his behalf.” The checks are also not receipts; they could have been for anything. That Cohen denied everything until 2018 when he changed to confessing everything will feature in any Trump trial.
Under direct questioning before Congress, Cohen claimed there was no corroborating evidence. He said he sent fake invoices to Trump only for “legal retainer fees,” so don’t bother with the invoices as evidence because Cohen now says he lied on them. The checks total over $400k, because supposedly Trump rolled Cohen’s fee and bonus into the amount, so we just have to take his word for it that $135K of the money was for Stormy. Cohen said some of the checks were signed by Don Jr. and the felony-convicted tax cheat former Trump Organization CFO Allen Weisselberg. That means the checks would be used to implicate personally a person who did not sign them.
If this case comes to trial, Trump’s side will drag its feet at every step, hoping to push the verdict past the 2024 election. There is nothing to stop Trump from running for president if he is under indictment, or even if somehow found guilty and serving time. His affair with Stormy has been part of the public conversation around Trump for years and is well-digested by voters.
There are elements here that would cause a reasonable man to call this overcriminalization, an act of political revenge, and an attempt to derail the Trump campaign by the DA in New York. Would Trump garner more sympathy votes than those he might lose running as the first ever indicted presidential candidate? Will voters object to a district attorney in New York trying to play kingmaker in the 2024 election, taking the vote out of the electorate’s hands with this legal Hail Mary? Isn’t arresting political opponents a Third World thing? As always, playing with fire around Trump is never a good idea.
