• Show Notes

Dear Reader,

Donald Trump is about to face trial for conduct that happened eight years ago; if you have kids in college now, they were in elementary school when it all went down. The crime is a paperwork offense, relating to how Trump and his businesses logged a series of perfectly legal (if unseemly) hush money payments in their own internal records. The prosecution’s star witness is a convicted perjurer and fraudster who openly spews vile at the defendant, often in grotesque terms, essentially for a living. The famously aggressive feds at the Southern District of New York passed on the case years ago, and current Manhattan District Attorney Alvin Bragg’s predecessor could have indicted before he left office, but did not. The charges are either misdemeanors or the lowest-level felonies (depending on how the jury decides the case), and the vast majority of defendants convicted of similar offenses are sentenced to probation and fines, not prison. 

Donald Trump is about to face trial for deceiving the American voters and attempting to interfere in the 2016 presidential election. The world had just heard the infamous Access Hollywood “grab ‘em by the p***y” tape, and Trump’s campaign was reeling, just weeks before Election Day. To keep his listing campaign from capsizing, Trump and his team paid off porn star Stormy Daniels to keep quiet about an alleged extramarital affair, and then labeled those payments “legal expenses.” Trump, already the first American president or former president to face indictment, could soon become the first to sustain a felony conviction, and it’s possible he could lose the 2024 election – and eventually wind up behind bars – as a result.  

Both of the preceding paragraphs are true. There’s no opinion or editorializing therein. Every statement above is fact. It’s all a matter of characterization. Witness, for example, the branding mini-war that has broken out around the case. Many media outlets and commentators refer to the case, in shorthand, as “The Hush Money Case.” But the DA’s Office and its flaks insist on the wordier but (in their view) more descriptive “The 2016 Election Interference Case.” Either works, in its own way.  

Most criminal cases turn on binary questions: Did this defendant pull the trigger? Did that defendant know 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 rescue a failing business? But this case turns largely on issues 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, this really is a crime, if proven. But it’s vital to understand exactly what the charges are (and are not), because the tabloid aspect of it all – payoffs, politics, porn – tends to obscure the operative legal issues. 

First: paying hush money is not a crime. In fact, a hush money agreement, though seedy, is legally no different than any other contract between private parties. So the fact that Trump knew about the Daniels payoff – and he clearly did – is merely a starting point here, and insufficient to prove anything criminal. 

The charged New York state crime here is falsification of business records. The DA alleges that Trump had the hush money payments fraudulently recorded in his internal books as “Legal Expenses” (rather than, I don’t know, “Hush Money to Porn Star”). If proven, that’s merely a misdemeanor – a low-level crime virtually certain to result in a non-prison sentence. For comparison, under the New York code, falsification of business records has the same technical designation as shoplifting less than $1,000 of goods.

The proof on the falsification point is mixed. On one hand, Trump plainly knew about the payments, and he signed some of the checks to reimburse his former attorney (turned-star-prosecution-witness) Michael Cohen for the payoffs. But it’s not entirely clear whether Trump was involved in the actual logging of those payments in the internal records of his business – and, 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 seems clueless about the accounting mechanism; Cohen explains to Trump that “I’ve spoken with [Trump Organization CFO] Allen Wiesellberg about how to set the whole thing up.” Later, when Trump asks if they’ll pay cash, Cohen responds, “No, no, no, no, no. I got it.” So Trump’s team will argue that the lawyer (Cohen) and accountant (Weisellberg) – not Trump – handled the booking of the payments. Cohen surely will testify that Trump was in on not just the payments, but also the internal bookkeeping around them. The jury will sort it out. 

If the jury does find Trump guilty on the business records charge, the next question is whether he falsified the records in furtherance of some other crime – primarily here, according to the DA, campaign finance violations. Trump fudged the records, the theory goes, because he didn’t want the alleged affair with Daniels to become public and harm his then-ongoing presidential campaign. Therefore, the hush money payments were actually campaign contributions, in excess of federal limits and 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 behind bars in this scenario, the vast majority of (but not all) first-time, nonviolent class E felons receive probationary sentences and fines, but no prison time.

The received wisdom is that the Manhattan case is the least important, and will be least impactful, of the four pending Trump indictments. The first part of that proposition is beyond reasonable dispute. Plainly Trump’s efforts to steal the 2020 election (as charged in DOJ Special Counsel Jack Smith’s federal case and DA Fani Willis’s case in Fulton County) and the former president’s retention of classified documents at Mar-A-Lago (as charged in Smith’s other federal case, in Florida) involve more serious conduct than falsification of hush money records. Bragg himself said last year that “broader justice may warrant another case going first.” That doesn’t necessarily mean the Manhattan charges are unserious, in the grand scheme – but they plainly are the least serious of the four. 

But, even with its off-the-podium, fourth-place finish, the DA’s case could make a modest but potentially decisive dent in the electorate. Recent polling by Politico and Ipsos is insightful, if a bit confounding. 36% of independents said that 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 already have their minds made up about, and against, Trump.) Somehow, 9% of independents said a Trump conviction in the Manhattan case would make them more likely to support him. (Really? How?) Even if we net that out, a 25% swing among independents away from Trump is substantial and, in a razor’s edge election, that number could well make all the difference. 

With every passing day, it becomes more likely this will be the only Trump criminal case tried to verdict before Election Day. Smith’s January 6 case sits in limbo and at the mercy of the Supreme Court, his classified documents matter is foundering without a set trial date, and the Fulton County case is a mess with no chance at a pre-election verdict. 

Still, on balance, the odds favor the prosecution here. The healthy majority of criminal cases that go to trial result in conviction, and the parties will choose a jury from a decidedly anti-Trump pool of Manhattanites. The question, as ever with Trump, is whether the outcome – even one as stark as a criminal conviction – will make a dent.

Stay Informed,