The first criminal trial against Donald Trump may happen soon and center on Manhattan DA Alvin Bragg’s indictment of the Stormy Daniels hush-money caper.
That’s because Thursday is Stormy Daniels Day for former president Donald Trump.
Although few would have predicted this, and District Attorney Alvin Bragg seemed less than anxious to proceed with his prosecution, it increasingly appears that Trump will face his first criminal trial in Manhattan on or close to the March 25 date tentatively scheduled after he was first indicted last spring.
If you’re keeping score, that’s about six weeks from now, in the midst of primary season.
We’ll know more on Thursday when New York State judge Juan Merchan begins conducting pre-trial hearings in connection with the hush-money caper, in which Trump is alleged to have falsified records of his 2017 reimbursement payments to then-aide Michael Cohen. Prior to the 2016 election, Cohen — the self-described “fixer” for Trump — had paid Stephanie Clifford (the porn star known as “Stormy Daniels”) $130,000 to remain silent about a tryst she claims to have had with Trump in 2006.
Clifford’s claim is credible, and it dovetails with a claim by former Playboy model Karen McDougal, who says she had an affair with Trump around the same time. McDougal received $150,000 in an unwitting nondisclosure arrangement — one that Cohen admits to having orchestrated but that was carried out by Trump’s friends at the National Enquirer (who purchased exclusive rights to McDougal’s story, buried it, and absorbed the costs, having decided that being reimbursed by Cohen/Trump would be a bad look).
Trump has publicly denied these extramarital flings. At the time they allegedly occurred, he had been married for about a year to his third and current wife, Melania Trump. The former first lady gave birth to Trump’s youngest child, son Barron, during this 2006 time frame.
Bragg’s case is ridiculous. His theory is that Trump couched the monthly payments made to Cohen through 2017 as legal fees when in fact they were repayment installments of a debt incurred in 2016, when Cohen had paid Clifford — an arrangement in which Trump initially, incredibly denied any involvement before settling on the rationale that it was all perfectly legal. To be sure, nondisclosure agreements are legal (indeed, they are a staple of civil-litigation settlements). Realistically speaking, it makes no difference how Trump recorded these payments. He was obviously motivated to conceal the alleged affair, not falsify his records — and no one has accused him of fraud or tax evasion in that connection.
In New York, intentional falsification of business records is a misdemeanor for which the statute of limitations is two years. Yet Bragg, an elected progressive Democrat who campaigned for office touting the many lawsuits he filed against Trump while he was a state-government lawyer, has preposterously charged Trump with 34 felonies, each carrying a potential four-year prison sentence.
He got to 34 by chopping a single transaction into eleven separate ones, further divided into sub-parts — each time (a) Cohen provided an invoice, (b) a check was drawn, and (c) a payment was booked — an underhanded tactic that, for example, the Justice Department admonishes prosecutors to avoid. (The idea is to intimate to the jury that the defendant must be a hard-core criminal if the prosecutor has hit him with dozens of felony charges; that increases the likelihood of a guilty verdict on at least one of them.) Bragg got to felonies, rather than a misdemeanor, on the theory that Trump doctored his books to conceal the commission of another crime. But obviously Trump was trying to conceal an affair, not a crime, and the other crime Bragg seems to have in mind involves campaign-finance law.
On the latter, Bragg’s theory, you see, is that Trump’s failure to disclose the hush-money arrangements to voters cost Hillary Clinton the very close 2016 election. This is partisan hackery, not law. The Trump/Cohen payments were not technically campaign expenditures that required disclosure. Even if they had been, disclosure would not have been due until early 2017 — after the election. Moreover, campaign finance is a federal regulatory scheme; Bragg, a state prosecutor, has no authority to enforce it — and the federal agencies that do decided not to proceed against Trump (we’ll come to that). So why is Bragg doing this? Because if he can spin Trump’s record-keeping as concealment of a crime, and therefore a felony, he gets the benefit of a five-year statute of limitations, which would arguably mean the charges he indicted last year were not time-barred. (There are good arguments that, in fact, they are time-barred, even if they qualify as felonies.)
Bragg’s star witnesses in this extravaganza are the porn star and the fixer.
Clifford will be an interesting witness, to say the least. She publicly denied the affair with Trump before basking in the celebrity glow that bragging about it has generated. Her conduct in pressuring Trump and Cohen to pay up (threatening that she’d go public right before the election) may strike the jury as extortionate — although she has alleged that, more than a dozen years ago, she was extorted into silence by a presumed Trump associate whom she has not identified and apparently did not report to the police, and she says she has more recently gotten death threats from anonymous sources presumed to be Trump supporters.
As for Cohen, he has a law degree, but he has had no real legal practice, including at the time Trump couched the reimbursement payments as legal fees (there is no public indication that Cohen performed legal services for these payments). When last seen dabbling in the law, Cohen was providing bogus legal citations that he’d cribbed from an artificial-intelligence program (Google Bard) and then provided to his lawyer, who in turn — and without checking their authenticity — wove the citations into a motion presented to a federal court in an attempt to get Cohen’s sentence reduced. Suffice it to say, Judge Jesse Furman was not amused.
About Cohen’s sentence. Recall that after falling out with Trump while he was under investigation from crimes in which Trump was not implicated, Cohen eventually pled guilty to several fraud and tax-evasion offenses. He was, of course, hoping federal prosecutors in the Southern District of New York would give him a cooperation agreement that would help him avoid a term of incarceration. What he figured he had to trade was Trump — specifically, the Stormy Daniels and Karen McDougal nondisclosure arrangements. He therefore agreed to plead guilty to two campaign-finance charges that the SDNY prosecutors tacked on as they tried — ultimately unsuccessfully — to build a case against the then-president.
As I explained at the time, the fact that Cohen agreed to plead guilty to campaign-finance crimes does not establish that there actually were campaign-finance crimes, much less that Trump was also guilty. In any event, Cohen was not a very attractive witness on whom to build a case: He is a convicted charlatan (his SDNY convictions were supplemented by a perjury conviction arising out of Robert Mueller’s Russiagate investigation); he has a track record of manipulation, of brass-knuckles tactics, and of praising Trump as above reproach. (Of course, given that Trump retained him for many years, Bragg is banking on the jury’s counting Cohen’s odiousness against Trump rather than in his favor.)
In the end, the SDNY prosecutors opted not to adopt Cohen as a cooperating witness. To the contrary, they wrote a stinging pre-sentencing memorandum, describing “the crimes committed by Cohen” as both “more serious” than he was willing to acknowledge and “marked by a pattern of deception that permeated his professional life.” The judge sentenced Cohen to three years’ imprisonment. (I suspect that the sentence would have been more severe had then-president Trump not inappropriately agitated publicly for a severe sentence.)
Meanwhile, in 2021, the National Enquirer’s publisher, American Media Inc., agreed to a settlement with the Federal Election Commission in which it paid a fine of $187,000 for its part in the McDougal arrangement but did not admit to a knowing and willful violation of law. (AMI was forced by its majority stakeholder to sell the National Enquirer in 2019; it has since been merged with a wholesale distributor, Accelerate 360, with the new company called A360.)
Not only are campaign-finance violations difficult to prove; the FEC and the Justice Department famously differed in the John Edwards case about what constitutes such a violation. The FEC said the former vice-presidential candidate’s support payments to his pregnant mistress were not campaign expenditures; the Justice Department, led by prosecutor Jack Smith, insisted that they were. In the end, the jury rejected Smith’s aggressive theory, acquitting Edwards on some counts and hanging on others, after which the Justice Department decided to drop the matter. (In a twist of fate, Smith is now prosecuting Trump on similarly edgy federal charges, whose predictably tortuous path through the federal system has resulted in delays, unexpectedly opening the calendar for Bragg to try Trump in the spring.)
The controlling regulations make it tougher to prove a campaign-finance violation by the candidate himself — unlike their supporters, candidates are not limited by expenditure ceilings (although such expenditures must be disclosed). Disclosure, moreover, is not required for expenses that would be incurred even if there were no campaign. Notably, the federal prosecutors ended their investigation without charging Trump, and the FEC ended its inquiry without pursuing Trump or his 2016 campaign.
Yet Bragg charged the former president with . . . 34 felonies, statutorily aggregating to over a century of imprisonment (rather astonishing when one considers Bragg’s default stance against the harsh prosecution of many hardened criminals).
It is anticipated that, during Thursday’s hearing, Judge Merchan will announce that the trial could begin on March 25. That is right after six states hold primaries, between March 19 and 23, and right before five states hold primaries on April 2. Assuming Merchan denies motions to dismiss the case, I assume the trial would take two to three weeks.
A trial carries significant risks for Democrats. Bragg’s case is regarded, even across the partisan divide, as the weakest against Trump. Were he to be acquitted — which may be possible, even in blue, blue Manhattan — it would turbocharge Trump’s campaign theme that the indictments against him are a weaponization of the criminal-justice system by Democrats against their nemesis. That said, polls do indicate that Trump’s current levels of support would drop significantly, perhaps fatally, if he is convicted of a felony.
Again, that’s why Bragg inflated what is at most a single misdemeanor into 34 felony counts. All he and his fellow Democrats need is one.