It’s fine to condemn Alvin Bragg’s partisan weaponization of law-enforcement power. But defending Donald Trump’s behavior is neither necessary nor prudent.
The fact that we are riveted to l’affaire Stormy today does not mean that we will be for long. As Trump allies beat the drum for Ron DeSantis to proclaim support for Donald Trump in the face of the former president’s imminent indictment by Manhattan district attorney Alvin Bragg, the Florida governor would do well to remember that.
At the New York Times, Jonathan Swan and Maggie Haberman report on heavy breathing from such Trump flacks as Jason Miller, Jack Posobiec, and the Trump campaign’s social-media “War Room.” They want us to know they are “taking receipts” on DeSantis’s supposedly thundering silence, portentously warning that “history will remember” his passivity.
It’s still early and I haven’t had enough coffee yet, so the conjured image of Trump in Gethsemane, heroically steeling himself for persecution over misdemeanor book-cooking to hide his fling with a porn star seems a bit much. But if I were DeSantis, I would give this a long yawn and then carry on with the prudent practice of ignoring his rival.
There is nothing more for Trump’s competitors to say about all this than that it is a shameful instance of the legal system’s being weaponized by an elected Democratic. No one who was not named Donald Trump would be charged with the trifling, stale violation that Bragg is struggling to inflate into a felony. This is a political gambit by a progressive prosecutor whose softness on hardened criminals jeopardizes New Yorkers. Therefore, for 2024 campaign purposes, the message should be: This is what you get when you trust Democrats to run the legal system (although, given Trump’s vows to conduct a retribution administration if he is elected, it’s also what voters could get if they entrust him to run the legal system).
On the other hand, Trump does appear to be guilty of the misdemeanor. To be clear, our objection should be that the former president is being deprived of equal protection of the law because Bragg would not prosecute others for this offense. It is not that the offense didn’t happen — at least in its misdemeanor iteration.
Trump keeps denying the sexual liaison with Stephanie Clifford (a.k.a. Stormy Daniels). The denials are not very convincing (the notoriously thrifty Trump shelled out $130k to silence an adult-film actress about trysts that didn’t really happen?), but they’re also irrelevant. As we’ve covered in some detail, the crime at issue is fraudulent accounting of the hush money (i.e., the non-disclosure agreement).
There is no dispute that there was an NDA. Trump keeps insisting that NDAs are perfectly legal, but legally, that is perfectly irrelevant here. The offense is not the execution of an NDA; it is how the NDA was booked in the company records. Technically, this was accounting for reimbursement of a $130k debt — the money paid on Trump’s behalf by Michael Cohen in October 2016 to purchase Stormy’s silence. Trump and his subordinates in the Trump organization arranged to make the reimbursement look like the payment of fees to Cohen (who has a law degree) for ongoing legal services throughout 2017.
Of course, had the reimbursement really been paid that way, Cohen would have taken a big tax hit. Legal fees are taxable income, while receiving reimbursement on a no-interest debt is non-taxable. To avoid such a tax hit, there were bookkeeping shenanigans. The $130k was combined with another $50k that Cohen had laid out for Trump (for 2016 campaign polling) and “grossed up” — i.e., it was doubled to $360k (i.e., $180k x 2). For good measure, Cohen was also paid a $60k bonus, for a total of $420k. This way, even if Cohen treated the Stormy payments as taxable income rather repayment of a debt, he would be whole. Cohen was duly paid monthly $35,000 installments until December 2017, with some of the checks drawn on the Trump revocable trust (signed by Don Trump Jr. and Trump Organization chief financial officer Allen Weisselberg), and the rest signed by then-president Trump — drawn on his personal bank account.
I presume that the fact that the Cohen payments were handled this way may give us insight on why Bragg thinks he can prove felony falsification of records, which requires convincing evidence that, in allegedly falsifying the records, Trump intended to “conceal another crime.” It could be argued that this deceptive method of paying Cohen not only misrepresented what the payments were for in Trump’s business records (i.e., faux legal fees to conceal a hush-money deal) but also sowed the seeds for a potential tax violation (i.e., misrepresenting payment of a nontaxable debt as payment of taxable income).
While we won’t know until we see the indictment whether Bragg is alleging that Trump tried to conceal a tax crime, I don’t see it. Laying the groundwork for a possible tax crime is not the same as committing a tax crime. Regardless of how the pay-out to Cohen was categorized (payment of a debt or legal fees), the effect on Trump’s taxes would have been de minimis. Moreover, even if there had been a material tax consequence, it’s not clear that Trump was complicit in it. Bragg has already prosecuted Trump’s organization and Weisselberg on comparatively minor felony tax charges, but I do not believe the DA alleged in that case that the payments to Cohen were problematic. (Cohen himself was convicted of tax fraud in a federal case, but this payment does not appear to have been part of that — it’s not clear that Cohen would have had to account for repayment of a no-interest, non-taxable debt in his taxes, much less that Trump had any knowledge of Cohen’s personal accounting and taxes.)
In any event, what all this tells us is that, while it is shameful for Bragg to be guided by partisan politics in exercising his prosecutorial power, Trump is far from blameless here. Whatever happened between Trump and Stormy (and between Trump and Karen McDougal, for whom a hush-money arrangement — differently structured — was also made around the same time), it certainly looks like the business records were tweaked to camouflage an NDA, which is a misdemeanor under New York law. I doubt Bragg will be able to prove the felony. Trump will contend — convincingly, I believe — that his motive was, not to conceal another crime, but to prevent his wife from finding out about the NDA arrangement and to avoid political damage. Still, being innocent of a felony would not make Trump blameless for his predicament — Alvin Bragg did not falsify the records, even if their falsification does not merit prosecution.
If DeSantis and other competitors of Trump’s for the GOP nomination want to condemn Bragg and Democrats generally for politicizing law enforcement while being lax in the prosecution of real crime, they should knock themselves out. That should be a big theme of the 2024 campaign. But that will never be enough for the Trump diehards, who demand that Republicans defend Trump himself. That should be a bridge too far. Trump should not be prosecuted, but that doesn’t mean his conduct is defensible — or, better, that anyone should expend energy composing strained defenses of it.
More importantly, DeSantis and other candidates must remember that the current Stormy frenzy is likely to be fleeting. As I’ve previously suggested, once the first prosecutor has crossed the Rubicon, others are sure to follow.
In the coming weeks and months, Trump is highly likely to be indicted by the Fulton County prosecutor for alleged felonies arising out of his efforts to reverse the 2020 presidential election in Georgia. Judging from the intense investigative activity by Biden Justice Department-appointed special counsel Jack Smith, an indictment is coming in connection with the Trump’s hoarding of classified intelligence at Mar-a-Lago, probably highlighting his alleged obstruction of the grand-jury investigation of that matter. In addition, Smith may also finally decide to charge Trump with obstructing Congress in connection with the January 6, 2021, joint session for counting state-certified electoral votes and ratifying President Biden’s victory.
The Stormy Daniels hush-money caper is all the rage . . . for this week. Very soon, it is going to be yesterday’s news, superseded by new charges involving behavior by Donald Trump that is even less defensible. It would be a mistake for Governor DeSantis and others to get in the habit of sounding like the former president’s defense lawyers. That’s going to be a full-time job.