Donald Trump: does the case against him stack up?

Basic facts of former president’s ‘catch and kill’ scheme not in dispute - but law might still be on his side

Trump arrives at Trump Tower in New York on Wednesday
Trump arrives at Trump Tower in New York on Wednesday
(Image credit: Kena Betancur/AFP via Getty Images)

“It’s going to be a hell of a thing to explain to future generations,” said David Frum in The Atlantic. After losing the 2020 election, Donald Trump “incited an attack on congress” in the hope of preventing a transfer of power. Many of his followers were prosecuted and jailed for joining the violent mob.

Yet what led Trump to be hauled in front of a judge last week, as the first former US president ever to be indicted? The accusation that he covered up hush-money payments to a porn actress. Stormy Daniels had approached the National Enquirer shortly before the 2016 election with a story about a liaison with Trump. The tabloid’s publisher notified Trump, who directed his lawyer and long-time fixer Michael Cohen to give Daniels $130,000 in exchange for her silence. Later, Trump reimbursed Cohen, in monthly instalments that were registered as legal fees.

The basic facts of Trump’s “catch and kill” scheme to suppress a damaging story are not in dispute, said Ruth Marcus in The Washington Post. Indeed, they’re a matter of public record, since Cohen has already served prison time on the strength of them: he admitted to violating federal election laws by making an illegal corporate contribution and exceeding individual donation limits. Federal prosecutors didn’t charge Trump back then because he was president at the time, and therefore not subject to indictment under Justice Department practice; and they opted not to pursue the charges after Trump had left office. But then Alvin Bragg, Manhattan’s district attorney, who is a Democrat, decided to take the case up at a state level. Under New York law, falsifying business records is usually just a misdemeanour. But the charge can be bumped up to a felony if it can be shown that the falsification was done in service of another crime.

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That’s how Bragg hopes to get Trump. The prosecutor may not have to spell out exactly what the second crime is, said Harry Litman in the Los Angeles Times. But Bragg has indicated two possibilities. One is that Trump mischaracterised the nature of the payments for tax purposes. The other is that the scheme broke New York law because it amounted to a conspiracy to defraud voters. Trump’s legal team has suggested that in buying off Daniels, he wasn’t trying to boost his electoral prospects, but simply to spare the feelings of his family. But Bragg’s “statement of facts” includes the damning revelation that Trump suggested to Cohen that he delay transferring the money to Daniels until after the election, on the basis that, if he lost, he wouldn’t need to pay as it “wouldn’t matter if the story became public”. Some say Bragg’s indictment is tenuous, but it reveals “a clear path to a felony conviction”.

I’m not sure about that, said David French in The New York Times. It’s true that the facts point to Trump’s guilt, but the law’s not on Bragg’s side. That’s putting it mildly, said Andrew C. McCarthy in the New York Post. Bragg’s case is completely incoherent. He “is attempting to enforce either federal election laws that a state prosecutor lacks jurisdiction to enforce, or state election laws that do not apply to US presidential elections”. But perhaps he doesn’t care; perhaps his aim is mainly just to punish Trump via the process. Whether or not Bragg’s case succeeds, Americans are “now seeing the power that local prosecutors wield, sometimes capriciously”, said C. J. Ciaramella on Reason. Florida governor Ron DeSantis described Bragg’s indictment as “un-American”, but getting “rung up on flimsy criminal charges by a politically minded district attorney is as American as a fighter jet flyover at an NFL game”. It happens to people every day – just not normally to former presidents.

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