New York’s Progressive DA Prepares Stormy Prosecution of Trump

F or reasons unclear to me, most commentary about Donald Trump these days discusses his prospects of winning the Republican presidential nomination and his prospects of being indicted for various crimes as if these matters were unrelated — as if the latter did not bear significantly on the former.

I don’t think Trump has any realistic chance of winning a national election. I also believe that Republicans, pro- and anti-Trump alike, will grasp this in enough time and in enough numbers that he won’t win the nomination. I believe that is happening already. Yet he could win the nomination: His base is sufficiently devoted that, if other promising candidates falter and if the field is too big, he could rack up primary wins with just 20 to 30 percent of the vote. I don’t expect that to happen, but it’s not out of the realm of possibility. That is why I’ve argued that the biggest problem for Republicans when it comes to Trump — again, for fans and abominators alike — is investigative metastasis.

Trump’s jeopardy is just too open-ended and fluid, and his propensity to say and do foolish things that prosecutors can use against him makes things even more unpredictable. There is also the progressive-politics factor.

Unlike federal prosecutors, state attorneys general and district attorneys are elected. In several states, and in almost all big cities that are run by Democrats with negligible GOP competition, campaign promises to use prosecutorial authority against Donald Trump — something that would be offensive in a sane world where people understood that if they can do it to him, they can do it to anyone — are popular. So even as the Biden-appointed special counsel plows ahead on his multiple Trump probes, Democratic state prosecutors around the country are combing through their files, trying to figure out a way to get in the game.

Or, in the case of Manhattan District Attorney Alvin Bragg, to get back in the game.

Thus is the New York Times inclined to believe that, if there is going to be a first criminal indictment of the former president, it is going to be over not the Capitol riot, not the Mar-a-Lago classified documents, not the 2020 presidential election in Georgia, but over . . . wait for it . . . Stormy Daniels.

The Times reports that prosecutors in Bragg’s office — who have lots of time on their hands because their boss, a leading exemplar of the Left’s progressive prosecutor project, is not big on, you know, prosecuting — have offered the former president the opportunity to appear next week before a grand jury. In the state criminal-justice system, it is not uncommon to invite the target of an investigation to testify — i.e., to try to persuade the grand jury and prosecutors that charges should not be filed. Usually, the subject will decline (asserting the Fifth Amendment right not to be a witness against oneself), which is the prudent call: If it’s likely that the state is going to file charges anyway, a prospective defendant is better off waiting for that to happen — to see what the prosecutors think they have — rather than making statements that could help them shore up their case.

The Manhattan state grand jury in question has reportedly been scrutinizing the Stormy Daniels hush-money caper. Daniels, you’ll recall, is the porn star whose real name is Stephanie Clifford. The investigation reportedly focuses on a nondisclosure agreement. NDAs are legal — indeed, common, especially in the settlement of civil claims. The issue in this instance is not the NDA itself but how it was booked on company records. To recap what we’ve covered a number of times, on the eve of the 2016 election, Trump arranged for his then-“fixer,” Michael Cohen, to pay $130,000 to Clifford, in exchange for an NDA regarding a sexual liaison she claims to have had with Trump a decade earlier; the Trump organization, prosecutors believe, then booked the reimbursement of Cohen in a manner that covered up its true purpose.

At around the same time, Trump and Cohen are believed to have orchestrated a hush-money arrangement with a second woman, Karen McDougal, also over alleged long-ago trysts. That one, however, is not as enticing to prosecutors because Trump did not pay for it — it was handled by his friends at the National Enquirer, who purchased exclusive rights to McDougal’s story, then buried it.

Obviously, this is less than earth-shattering stuff. In fact, the notoriously territorial federal prosecutors in Manhattan (the Southern District of New York) declined to pursue the case against Trump despite the fact that they had it first, having prosecuted Cohen. It might be more accurate to say, though, that the feds passed up the case because they prosecuted Cohen. That is, having gotten to know him, and having convicted him on charges arising out of fraud and deceit, they decided it was best not to give him a cooperation agreement and make cases that would rely on his testimony.

The DA’s office, however, took this crumb that fell from the SDNY’s table, and has been gnawing at it for six long years, beginning under Bragg’s predecessor, Cy Vance Jr. The Stormy investigation seemed to have cratered in 2022 — as it should have, given that Bragg, averse as he is to prosecuting the real crime that is plaguing New York City, would never in a million years bring so trivial a case if the suspect’s name were not Donald Trump.

I’ve previously described the sundry flaws in this increasingly stale case (see, e.g., here). Beyond these demerits, recent history teaches us that prosecutors should not intervene in electoral politics absent truly serious criminal conduct, and yet the charge of falsifying business records — apparently to be brought against a former U.S. president and current presidential candidate — is just a misdemeanor under New York State law, punishable by less than a year’s imprisonment. An exception could bring the case into four-year felony range, but I don’t see how the state could prove it.

Specifically, New York law makes falsifying business records felonious if prosecutors can prove that, in committing the fraud, the defendant intended to “conceal the commission” of “another crime.” It has been suggested that, in orchestrating the NDA, Trump was violating the campaign-finance laws. That would be a stretch, to say the least. But let’s say, for argument’s sake, that he was. The campaign laws in question are federal. When New York’s penal code speaks of concealing “another crime,” it must be referring to a crime under New York law.

Some contend, to the contrary, that because the statute in question doesn’t say “another New York crime,” that federal crimes are covered. But what’s the limiting principle? Are, say, French crimes covered? How about sharia crimes? Clearly not. In my view, under venerable criminal-law principles, doubts about the coverage of ambiguous statutes are resolved in a defendant’s favor. Since the New York penal code covers crimes codified by the New York State legislature, we must presume that when it refers to “another crime” it means another New York State crime; if the legislature wanted to cover federal crimes, it would have said so.

If I’m right, then to convict Trump of a felony, Bragg’s prosecutors would have to show that he knowingly and intentionally made false entries in accounting for the reimbursement of Cohen, with the purpose of covering up his commission of some other New York crime. It’s not clear what that other New York crime would have been (perhaps a tax offense?), much less that Trump would have had it on his mind.

More to the point, it’s not clear that Trump would even have known about how his subordinates booked the reimbursement of Cohen — i.e., he may not even have been criminally complicit in the false accounting, much less have acted with the intention of concealing some (potential but unclear) New York crime. More believable is that Trump — assuming he was involved in the bookkeeping at all — was not trying to conceal a crime; he was trying to conceal an extramarital fling with a porn star (or, at least, a fling that she claims they had). That would be a cover-up of something that is personally humiliating but not criminal. That is, it would be a textbook example of why people and companies execute nondisclosure agreements all the time.

I doubt Bragg has much of a case here, but it doesn’t look like that will stop him from bringing it. Only an indictment, it seems, will appease the ambitious DA’s progressive Democratic political base. You can say, as many analysts do, that this kind of prosecution will only strengthen Trump. I disagree. Sure, given that Trump practices the populist politics of grievance, the devotion of Trump diehards, who are drawn to such politics, could be intensified if Democrats appear to be abusing their power to persecute him. I doubt, however, that most Republicans will see it that way. Instead, most will see the whole thing as tawdry. Unlike the heady days of 2015 and 2016, Republicans on the whole no longer see Trump as a new and exciting disrupter of a corrupt system; they see him as a relentless pain in the ass who brings many of his problems on himself.

They are problems such as the post-2020 election “stop the steal” farce, which one of his lawyers this week admitted was a cascade of lies. If Alvin Bragg doesn’t indict him first on l’affaire Stormy, Fulton County Democratic prosecutor Fani Willis is poised to launch with charges based on “stop the steal” — to the extent Trump sought to undermine the 2020 election in Georgia. If she dawdles, Jack Smith, the special counsel appointed by Attorney General Merrick Garland, has been stepping up his grand-jury activity: He’s pressing for testimony from former vice president Mike Pence on Trump’s suspected obstruction of the congressional ratification of Biden’s Electoral College victory, and from Trump lawyer M. Evan Corcoran on the former president’s suspected obstruction of a grand-jury investigation scrutinizing his illegal retention of hundreds of classified documents.

Meantime, with a Manhattan jury having already convicted the Trump organization on felony tax charges, Bragg hasn’t given up on nailing Trump personally in the case — the DA is continuing to pressure Allen Weisselberg, Trump’s now-convicted chief financial officer, the witness he needs to try to make the case. And New York attorney general Tish James is pressing ahead with her massive civil-fraud suit, an effort to put Trump out of business. And the SEC is reportedly poking around to determine whether securities laws were broken in Trump’s effort to launch his new media venture — an effort in which the financing arrangement remains in doubt. And a federal judge ruled on Friday that E. Jean Carroll, who is suing Trump for defamation — a case arising out of her claim that he sexually assaulted her (which he vigorously denies) — may elicit testimony from two other women who claim Trump similarly abused them, and may introduce as evidence an excerpt from the infamous Access Hollywood tape in which Trump bragged about being sexually aggressive.

Trump may land on his feet in every one of these cases. But he may not. His prosecutors are in overdrive, yes, but in virtually every case he has given them lots of ammunition to work with. There is, moreover, no reason to believe we’ve reached the end point. Democrats will have these cases churning throughout the 2024 election cycle.

Unless and until Republicans come to the realization that, if they want to win, it’s time to move on.