The risks of indicting Trump in the N.Y. hush money case

For some of Trump’s biggest critics, the prospect of an indictment related to the Daniels case leads to little but existential dread.

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If the rule of law and the idea that no person is above the law mean anything, we must hold the man who tried to destroy our government from the inside to account; former President Donald Trump must face criminal indictment. But if New York County District Attorney Alvin Bragg indicts Trump on charges related to his hush money payment to adult film star Stormy Daniels, it could threaten every other investigation against him. That’s why, for some of Trump’s biggest critics, the prospect of an indictment related to the Daniels case leads to little but existential dread. That’s not because the facts show Trump engaged in no wrongdoing; quite the opposite. It is because of all the legal cases Trump faces, this one may be the hardest to prove

Of all the legal cases Trump is facing, this case may be the hardest to prove.

If Trump successfully defends himself against an indictment for his role in the payment to Daniels, we can predict he will use it as vindication that any and all charges brought against him are merely so-called witch hunts. It doesn’t take much to imagine Trump’s ceaseless gloating about a loss by the New York prosecutors. And this could have a cascade effect, not only emboldening Trump’s false claims that he has done nothing wrong, but also making other prosecutors skittish about charging Trump in other cases.  

Again, Trump should face criminal charges. He must be held accountable for crimes he (allegedly) committed before, during and after he was in office. At least four other investigations are pending against him, any of which might offer a smoother legal path to punish him for his behavior. Overwhelming evidence indicates that Trump incited or assisted in an insurrection aimed at obstructing an official proceeding, namely the certification of Electoral College votes. A recorded telephone call shows that he tried to commit election fraud in Georgia. The alleged crime spree didn’t stop when Trump left office. An FBI search and court documents strongly suggest that he unlawfully took classified documents and kept them at his Mar-a-Lago residence in Florida. And there is plenty of evidence to show that before Trump took office, he and the Trump Organization committed not just civil violations, but also financial crimes, by lying about the value of Trump properties to pay lower taxes and get better deals on loans and insurance. 

Whether any or all of those cases will proceed is, however, an open question; the far likelier path is that the first criminal case ever brought against a former president will be the one involving the scheme to silence Daniels’ claims that she had an affair with Trump before he was president. 

The first problem, though not at all insurmountable, is that this is an old case. The actions giving rise to this case took place years ago. In fact, Michael Cohen, Trump’s former attorney, has already been sentenced to federal prison and served time for his part in this alleged conspiracy. Right before the 2016 presidential election, Cohen, through a shell company, paid Daniels $130,000 not to share her claims that she had had an affair with Trump. A hush money payment in and of itself isn’t illegal. The problem here was that it was done to influence the 2016 presidential election and should therefore be viewed as an undisclosed campaign contribution that was way over the applicable limit of $2,700 per donor per election. 

Trump is implicated here. Cohen has said he made the payments at the direction of Trump, which involves him in the illegal behavior. In addition, Trump reimbursed Cohen for the payments but improperly listed those reimbursement payments as legal expenses and claimed there was a retainer agreement with Cohen, which apparently never existed. This could give rise to the crime of falsifying business records. Normally that is a misdemeanor charge, but it can be kicked up to a felony if prosecutors show Trump intended to defraud, which includes the intent to commit, aid in the commission of or conceal another crime.  

Proving Trump had any sort of intent is always tricky. He doesn’t leave many smoking guns lying around. He doesn’t send emails or texts. He speaks in code.

This is where our stroll from indictment to conviction gets even thornier. First, proving Trump had any sort of intent is always tricky. He doesn’t leave many smoking guns lying around. He doesn’t send emails or texts. He speaks in code. We may know exactly what he means, but then he claims he didn’t say anything of the sort. As just one example, Trump claims he has “never met” people whom he clearly has, which can be a cryptic statement. The point is Trump is slippery in his use of language, and he lies. A lot.     

One theory, consistent with Cohen’s plea deal, as to what the other crime could be is that the hush money payment to Daniels amounts to a violation of New York state law. As MSNBC legal analyst Lisa Rubin has pointed out, a part of New York election law prohibits two or more people from conspiring “to promote or prevent the election of any person to a public office by unlawful means.” Under the law, at least one person must take an action to effectuate the conspiracy. 

But we are talking about Trump’s running as a federal candidate, and it may make more sense to view his activities as federal crimes. Therefore, alleging a violation of federal campaign finance laws seems like the more obvious course here. That is, in fact, one of the charges to which Cohen pleaded guilty. The potential problem is that when New York’s law says falsifying business records can become a felony if linked to other crimes, it isn’t entirely clear whether those other crimes can be federal crimes. The law does appear to be on Bragg’s side. There is precedent of people’s being charged in New York with the state crime of falsifying records to cover up federal crimes. 

Bragg’s case isn’t unwinnable, but it is far from a slam dunk. Trump has claimed the case is just too old, meaning the statute of limitations to bring the case has run out. This is probably the easiest hurdle for Bragg to clear. New York law includes an exception to the statute of limitations when someone has been “continuously” outside the state. 

In addition, Trump has claimed and could continue to claim that he was merely relying on the advice of his lawyer, Cohen. Trump would have to prove that Cohen explicitly told him the hush money payment scheme was legal and that he relied on those statements in good faith. This would most likely require him to take the witness stand, which could open him up to a cross-examination about his many, many lies

And, of course, there’s the not entirely insignificant matter that one of Bragg’s key witnesses, Cohen, is a convicted felon. Trump would no doubt try to paint him as a witness lacking in credibility who lied before and will lie again. Here again, Cohen can certainly rehabilitate himself in the eyes of the jury, but it’s one more bump in Bragg’s road.   

Any indictment of a former president would be historic. In fact, such a criminal indictment would be a first in our nation’s history. One thing we know about historic firsts: We view them as test cases for what is possible. If Bragg were to move forward on an indictment and lose his case, it would have a ripple effect, both legally and politically, on future cases against Trump. For the sake of the rule of law and of legal and political accountability, let’s hope Bragg and his office know something we don’t about the strength of his case against the former president.