- Manhattan prosecutors have argued that the Stormy Daniels case—the first criminal trial of a former President in American history—is about much more than hush money. And legal experts believe that a conviction is likely
By Eric Lach, April 14, 2024
In 2006, at a celebrity golf tournament on the shore of Lake Tahoe, Donald Trump met the adult-film star Stormy Daniels. According to Daniels, things got intimate. (“The sex was nothing crazy,” she would go on to say.) A decade later, Trump was running for President, as a kind of Republican uber-family man, drawing crucial support from conservative, evangelical voters. Daniels decided to go public: her encounter with Trump had taken place while he was already married to his third wife, Melania. Searching for an outlet that would handle the story with the delicacy it required, Daniels’s agent reached out to the National Enquirer.
A day earlier, the Washington Post had posted the “Access Hollywood” tape on its Web site. Trump could be heard talking about grabbing women by the genitals. The Republican Party was freaking out. Paul Ryan, then the House Speaker, told his colleagues that it was O.K. to “abandon” Trump, to save their own electoral skins in November. There was talk of replacing him on the Presidential ticket. In the midst of this frenzy, the National Enquirer’s editor got in touch with Trump’s lawyer Michael Cohen, who negotiated a hundred-and-thirty-thousand-dollar fee to buy Daniels’s silence, avoiding further scandal. Cohen paid the fee himself, and was reimbursed by the Trump Organization in installments identified on company records as “retainer” payments for “services rendered.”
Would Trump have lost the 2016 Presidential election if Stormy Daniels had gone public with her story? Prosecutors in Manhattan think maybe so. This question is at the heart of this week’s criminal trial against Trump—the first against a former President in American history. Trump faces thirty-four felony counts of falsifying business records, which the Manhattan District Attorney, Alvin Bragg, claims was part of a scheme to “conceal damaging information and unlawful activity from American voters before and after the 2016 election.”
The case has become known as the “Stormy Daniels hush-money case,” which has made it easier for the public to dismiss, because it seems like small potatoes. In fact, the argument that the prosecutors have made in court filings is focussed on something closer to election interference. The case is about Trump lying his way into office.
Many legal experts believe that a guilty verdict is likely. “I think Bragg has shown he wouldn’t have said yes unless he thought this was a really good case,” Andrew Weissmann—a New York University law professor and a former member of the special counsel Robert Mueller’s investigation—told me. It is in many ways a straightforward fraud case, with a paper trail of evidence, and a defendant with a strong motive to commit the crime.
And yet the case has also provoked heated debate among legal scholars and former prosecutors. Last year, after the indictment was announced, a Boston University law professor named Jed Shugerman wrote a blunt Op-Ed in the Times titled “The Trump Indictment Is a Legal Embarrassment.” Shugerman is no Trump fan; he just had questions about the strength of the case. “Even if it survives a challenge that could reach the Supreme Court, a trial would most likely not start until at least mid-2024, possibly even after the 2024 election,” he wrote.
Part of this skepticism had to do with the novel way in which Bragg brought the charges against Trump. In New York, falsifying a business record is a misdemeanor. The crime can be bumped up to felony status, however, if it is done to aid and conceal a so-called underlying crime. In the Trump case, the underlying crimes referred to in the charging documents include violations of federal election law, to which Michael Cohen pleaded guilty to in 2018. Trump’s case is historic, not only because it is the first of its kind involving a former President but because it involves an unusual legal maneuver: reaching to federal law to bolster the state charges of falsifying business records.
“Stretching jurisdiction,” Shugerman called it. And yet the law professor acknowledges now that he underestimated the case. “I still think people, well-intentioned people, have graded this case on a curve,” he said. But he’d been persuaded by arguments that he’d heard from colleagues and friends. “I’m now more willing to say that it’s fair for the prosecution to go forward, and for Trump to have his day in appellate court,” he said. He, too, thinks a conviction is likely.
Shugerman was persuaded by legal arguments. Others have increasingly come around to the case because of the calendar. For much of the past year, Bragg’s case had been obscured by the other criminal cases brought against Trump—in Georgia, Florida, and Washington, D.C.—in connection to his actions before and after the 2020 election. These were considered stronger and more important than the Manhattan hush-money case. But, one by one, the other cases have been delayed.
The Supreme Court has stepped into the one related to January 6, 2021, considerably slowing proceedings. In Georgia, the Fulton County district attorney’s decision to have a relationship with the lawyer whom she tapped to oversee her sprawling election-interference case nearly derailed the whole thing. The trajectory of American history may now turn on Bragg’s case, which is expected to last for six to eight weeks. Trump will be required to attend every day.
The hush-money case was, for years, referred to by officials in the Manhattan District Attorney’s office as the “zombie case,” because of its propensity to come back from the dead. Within the office, prosecutors engaged in the same debate about the case’s viability that would later break out publicly, once the charges were finally announced, in April of 2023. “Paying hush money is not a crime under New York state law,” Mark Pomerantz, a lawyer who worked in the D.A.’s office, wrote, in “People vs. Donald Trump,” an insider account of the office’s investigation of the former President.
The effort began under Bragg’s predecessor, Cyrus Vance, Jr.—the son of Jimmy Carter’s Secretary of State—who had been criticized for dropping a case in 2012 against two of Trump’s children, focussed on their management of the Trump SoHo hotel-condominium project, in Lower Manhattan. In 2021, Vance brought in Pomerantz as a Special Assistant District Attorney, to add muscle to the office’s pursuit of Trump.
In “People vs. Donald Trump,” Pomerantz writes that he and others in the office tried to get creative with the zombie case, to get around the problems that Shugerman and others would later identify. At one point, Pomerantz even entertained the idea of treating Cohen and Trump’s payment to Daniels as an act of extortion by the adult-film actress—a way of painting Trump as both victim and perp in the same case. Even if Trump had been extorted, falsifying business records was a crime. Eventually, that and other lines of inquiry fizzled, Pomerantz writes, and the zombie case “went back into the grave” in March, 2021, as the office turned its attention to an investigation of Trump’s inflation of the value of his assets.
In November of 2021, Bragg was elected to succeed Vance as the Manhattan District Attorney, and he took office the following January. He reviewed the inflated-assets case that Pomerantz and others had been working on, and decided not to move forward with it. Pomerantz resigned. In his resignation letter, he criticized Bragg. “I fear that your decision means that Mr. Trump will not be held fully accountable for his crimes,” Pomerantz wrote. “I have worked too hard as a lawyer, and for too long, now to become a passive participant in what I believe to be a grave failure of justice.” He spent part of the next year putting together “People vs. Donald Trump,” in which he all but calls Bragg a coward who shied away from prosecuting Trump for political reasons.
But Pomerantz also admits to a kind of tunnel vision on his own part. “Alvin may have thought that some of us, and perhaps me most of all, had become Captain Ahabs in search of Donald Trump as the ‘great white whale’ of criminal defendants, and that we had lost our perspective and our ability to read the facts accurately because we so wanted to bag this target of a lifetime,” Pomerantz wrote. He doubted whether Bragg would ever bring a case against Trump, and wondered what that would mean for the country, and the rule of law. The book was published in February, 2023. Two months later, Bragg indicted Trump.
There are lingering questions about Bragg’s case: why did federal prosecutors not bring these charges against Trump, for instance? (In Cohen’s federal case, Trump was identified in court records as “Individual-1.”) But one person who has never minimized Bragg’s case is Trump himself. Just this week, he had his lawyers make three separate attempts to postpone the case, all unsuccessful. He does not want to face a jury. Things don’t end well for him in courtrooms. In the past year, courts have ordered him to pay nearly a hundred million dollars to the journalist E. Jean Carroll—whom Trump assaulted in a Bergdorf Goodman dressing room in the nineteen-nineties, and later defamed—and nearly half a billion dollars to the State of New York for inflating his wealth on financial statements. (The New York attorney general, Letitia James, brought this as a civil case after Bragg dropped it as a criminal matter.)
Trump has denounced the hush-money case as a politically motivated selective prosecution, designed to damage his election prospects. “Democrats are salivating,” Trump wrote in an e-mail to his supporters this month. “They think images of me sitting in court will be the end of the MAGA Movement.” Does some part of Trump think this, too? I’ve now had the experience of seeing him in a courtroom, multiple times. When he is forced to sit quietly for some time, it’s easier to see that he is an old man in serious legal trouble. “Haggard,” a pair of veteran political reporters agreed, after sitting in Judge Juan Merchan’s courtroom in Manhattan criminal court a few weeks ago and watching Trump drag himself up the aisle during a break in a daylong preliminary hearing.
Weissmann, the former member of Mueller’s investigation, told me that Trump’s legal team, led by Todd Blanche and Susan Necheles, is “really good.” He compared Necheles to John Adams defending British soldiers after the Boston Massacre. But Trump has a way of making even good lawyers look bad. Earlier this week, it was revealed that Blanche had sent a subpoena to a man named Jeremy Rosenberg, who lives in Brooklyn, thinking he was the Jeremy Rosenberg who’d once been an investigator in the District Attorney’s office. He wasn’t. “I don’t have any files for you,” the Brooklyn man responded to Blanche, adding that he was keeping the fifteen dollars that had been sent to him to offset the cost of printing and mailing requested documents.
In general, Trump’s legal strategy in his various cases has been to throw everything at the wall and see what sticks. He has denied all wrongdoing, but in practice his lawyers have focussed less on his presumed innocence than on procedural and constitutional objections. In court, Trump, the master of optics and narrative, has been reduced to technical arguments. When it became clear that these technical arguments were failing in his civil cases, Trump resorted to acting out. He antagonized judges, and muttered and complained in earshot of the jury. “I would love it,” he growled, when a judge in the second of Carroll’s two suits against him threatened to toss him from the courtroom.
No doubt Trump will try to make his trial in Manhattan as unpleasant for everyone else as it surely is for him. In the lead-up, he has repeatedly publicly attacked Judge Merchan’s daughter, who has worked on digital campaigns for Democratic Party candidates. Merchan has tried to set limits on Trump’s speech about the case, but the former President is determined to test those limits. Already, he has all but openly invited violence. “How many Corrupt, Biased, Crooked Joe Biden-‘Protection Agency’ New York Judges do I have to endure before somebody steps in?” he recently wrote on Truth Social, his social-media platform. Such outbursts will likely intensify as the trial goes on.
There’s an old saying in American politics that a campaign’s most precious resource is the candidate’s time. Four days a week during the next month and a half, Trump will be in Merchan’s courtroom, where cameras and cell phones are not allowed, cut off from the rest of the world. In addition to Cohen and Daniels, witnesses may include the former White House communications director Hope Hicks, the former National Enquirer publisher David Pecker, and other Trumpworld figures.
It’s like the “Seinfeld” finale, with all these bit players coming back as the protagonist faces legal consequences. If he’s found guilty, legal experts are split on what kind of consequences he’d face. Falsifying records in the first degree is subject to up to four years in prison, and a five-thousand-dollar fine. But, if Trump is convicted, Merchan will have discretion when deciding on a sentence. As a first-time offender, jail time isn’t a sure thing. And the Constitution does not prohibit a convicted felon from serving as President.
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