Trump hush money case: The merits and the politics

Prosecution of former President Donald Trump for alleged hush money payments to porn actress Stormy Daniels might be far from an open-and-shut case.

The Manhattan district attorney’s office has not yet brought charges against Mr. Trump, and the parameters of such a legal proceeding and facts involved are not yet clear. But Mr. Trump’s weekend social media claim that he expects to be arrested this week, and his appeal for supporters to “protest,” has reinforced a sense in Washington that the looming indictment of a former U.S. chief executive would mark a leap into an unprecedented and unpredictable national political future.

Some experts question whether the Manhattan case is strong enough to justify the first criminal indictment of a former U.S. president. It is relatively complex, and prosecutors may have to rely on an untested legal theory to raise the charges to the level of a felony.

The Georgia investigation into whether Mr. Trump tried to illegally influence the state’s presidential vote, and federal special counsel Jack Smith’s probe of the former president’s possible incitement of the Jan. 6 Capitol riot and his handling of classified documents at Mar-a-Lago, are all potentially more serious than a hush money case.

But others say the Manhattan case represents serious legal trouble, with Mr. Trump potentially caught in a lie about paying Ms. Daniels to keep her mouth shut at a moment in history when her revelations could have swung the narrow outcome of the 2016 election.

Either way, prosecutors don’t coordinate indictments based on importance, says Paul Schiff Berman, a professor at the George Washington University School of Law.

Nor do they typically bring prosecutions they think they can’t win. Given that, the best course of action now may be for the legal proceedings in Manhattan to simply proceed.

“The bottom line is, we should not rush to judgment on whether this is a good or bad prosecution. That is what trials are for,” says Professor Berman.

Partisan tensions

If nothing else, Mr. Trump’s social media broadside against Manhattan District Attorney Alvin Bragg and his all-caps call for supporters to “PROTEST” and “TAKE OUR NATION BACK!” offered a preview of the heated political discourse likely to follow any Trump indictment.

Many of Mr. Trump’s political allies rallied to his side, saying the alleged impending arrest was an outrage that would only make it more likely he would return to the White House following the 2024 election. Three House Republican committee chairs, including Judiciary chair Jim Jordan, dispatched a joint letter to Mr. Bragg demanding he hand over documents, communications, and testimony bearing on his Trump investigations.

Florida Gov. Ron DeSantis, a potential rival to Mr. Trump for the 2024 GOP nomination, weighed in on Monday, broadly condemning Mr. Bragg for “pursuing a political agenda and weaponizing the office.”

At the same time, Governor DeSantis did repeat the allegations against Mr. Trump. “I don’t know what goes into paying hush money to a porn star to secure silence over some type of alleged affair,” he said at a state college appearance. “I can’t speak to that.”

On Monday Mr. Trump’s legal team was also active on another potential legal problem. His lawyers filed a motion in a Georgia court seeking to quash the final report of a special grand jury that investigated whether he and his allies interfered in the counting of the state’s 2020 election results. The motion also asked that Fulton County District Attorney Fani Willis be disqualified from the case.

There is very little chance that Mr. Trump’s attacks will sway district attorneys, including Mr. Bragg or Ms. Willis, to drop charges they would otherwise proceed with, says Larry Jacobs, director of the Center for the Study of Politics and Governance at the Hubert Humphrey School of Public Affairs at the University of Minnesota.

The former president has very little influence over whether he will be indicted or not, says Professor Jacobs. His strategy is ultimately a political one, in which he is trying to leverage his unprecedented situation as a former president in legal trouble to rally support for his 2024 presidential campaign.

“It is about turning lemons into lemonade,” says Professor Jacobs.

Specifics of the case

Mr. Trump and his allies have attacked the prosecutors who are investigating him and the processes they are using, but they have been quieter about the allegations involved.

The Manhattan case stems from an incident just prior to the 2016 election. Michael Cohen, Mr. Trump’s former lawyer, made a $130,000 payment to the pornographic film actress Stormy Daniels, who claimed she had an affair with Mr. Trump. Mr. Cohen said the money was intended to buy Ms. Daniels’ silence.

Mr. Trump has denied the alleged affair.

Over the course of 2017, the Trump Organization reimbursed Mr. Cohen for his $130,000 expense, concealing the payments as money for a legal retainer that did not exist, according to court documents from a legal case against Mr. Cohen. In 2018, Mr. Cohen was sentenced to three years in prison for tax evasion, false statements, and campaign finance violations.

The Manhattan case against Mr. Trump is likely to charge him or his organization with falsifying business records of the $130,000 to Mr. Cohen. In order to boost this to the level of a felony, prosecutors would need to show that this falsification was done with the intention of committing a second crime – such as the concealment of a campaign finance violation. If the payment was made for political purposes, then it was a donation to the Trump for President campaign – but was never recorded as such.

This aspect of the case has given some legal analysts pause. This combination of charges to produce a possible felony is largely untested, tweeted David French, a New York Times columnist and former writer for the National Review, over the weekend.

“‘Untested’ legal theories should not be used to prosecute anyone, including former presidents,” tweeted Mr. French.

In addition, for Mr. Trump to be culpable, he would have had to be directly involved in a misrepresentation of the payment to Mr. Cohen, and he would have had to do so for the purpose of another crime, says David Shapiro, a former FBI agent, financial crimes specialist, and law professor at the John Jay College of Criminal Justice.

The former president could simply argue that he was unaware of what underlings were doing in his name.

“Mr. Trump is not a bookkeeper,” he says.

Based on what is currently known, Mr. Bragg’s decision to bring the case is difficult to understand, says Professor Shapiro, especially years after the fact. But Mr. Bragg has been under a lot of pressure to indict the former president. 

“You know how everyone is concerned that ‘Mr. Trump isn’t above the law?’ .... Mr. Trump is not beneath the law either,” says Professor Shapiro. “Treat him like you would any citizen.”  

An ‘unprecedented’ deflection

But to call the legal approach to the Manhattan hush money case “unprecedented” is an attempted deflection, says Caroline Fredrickson, a visiting professor at Georgetown Law and a former president of the progressive legal organization the American Constitution Society.

It is a way of not speaking to the merits of the case, or suggesting that the merits of the case are irrelevant, she says.

Candidates for public office are not supposed to engage in making payments and then concealing them. If prosecutors do not go forward with charges they will be signaling that other politicians can get away with this kind of illegality, according to Prof. Fredrickson.

“The fact [Mr. Trump] has been able to put this off for so long is a testament to how skilled he is at manipulating the legal regime rather than a testament of the strength of the charges against him,” she says.

Given the political wrangling over the hush money case it is easy to forget the simple story of its basic allegation: a presidential candidate had an affair, paid $130,000 to keep it from becoming public in the stretch run of the race, and then manipulated evidence to cover his tracks.

Furthermore, this outline is unlikely to have any effect on the 30% to 35% of Republicans who are his firm Trump supporters, says Prof. Jacobs at the Hubert Humphrey School. The allegation itself is insufficient to knock the former president out of the running. It is entirely possible he could win the White House again while under indictment, or even after a conviction.

“It is shocking. It’s not even possible to talk about precedent because it is so unheard of,” says Prof. Jacobs.