Don’t Sleep On This Case

Image courtesy of the NY Post

Big breaking news today.

Access Hollywood reports that, right before the 2016 election, Hillary Clinton had an extramarital affair with her trainer, who was also working as a male escort. In order to prevent a major scandal on the eve of the election, Clinton instructed her accountant to pay her lover off for his silence, then hid the paper trail by disguising the payments as “consultant fees” in violation of New York law.

It gets worse. She also arranged hush money for a second lover, as well as a nanny who was about to go public about a child her husband Bill Clinton had sired out of wedlock. 

These bombshell stories were not discovered before the election, and that was by design. They would certainly have been devastating, probably fatal, to her candidacy.

You see where I’m going with this.

None of that is remotely true about the Clintons, but if it were, Hillary Clinton’s trial next week for falsifying business records in order to cheat in the 2016 election would be generating non-stop headlines and 24/7 coverage on Fox News.

And if she had the audacity to be running for president today, despite criminal charges and with a jury trial starting next week, pundits would label her a disgrace, and nearly everyone would be demanding she drop out before she embarrassed herself any further. By now, Democratic voters surely would have abandoned her.

Enough of that. The real questions are why highly analogous allegations against Donald Trump have not played out the same way in the press and in public opinion, and more importantly, how they will soon likely play out in court.

The court of public opinion is skewed

My hypothetical Clinton election scandal demonstrates two things when it comes to press coverage and public opinion.

First, it shows that very similar allegations—which are true about Trump and have led to nearly three dozen criminal counts—should be taken quite seriously. They could and should lead to significant criminal penalties, including prison. And the press should be reporting it that way, not dismissing this as a mere case about “hush money.” 

As many legal experts have emphasized, this really is a case about election interference and an extensive cover-up. It’s a case about how Trump cheated to help win the 2016 election.

In the state of New York and other jurisdictions, it is illegal to falsify business records. And falsely mischaracterizing payments meant to buy silence as “lawyer fees” fits the bill exactly for this crime. 

Further, it is a felony to falsify business records in furtherance of another crime, in this case illegally influencing an election. District Attorney Alvin Bragg has emphasized that it is also a crime in New York to conspire to promote a candidacy by unlawful means, and that the payments in question exceeded the federal campaign contribution cap.

While Trump will argue that federal law is irrelevant, the state will argue that it doesn’t matter whether the other crime was a state or a federal one. It’s still a crime, and Trump still falsified New York business records to try and get away with it.

And this of course was no small, local election. It was the presidential contest, and the stakes were as high as they could possibly be. Moreover, the outcome was so close in the battleground states that the result could have easily turned on what “vibe” late-deciding voters had about the candidates. As the Washington Post reported at the time,

[I]f you look at the four closest states where Clinton lost — or, in the case of Michigan, where she's expected to lose — exit polls show late-deciding voters in each of them went strongly for Trump in the final days. In Florida and Pennsylvania, late-deciders favored Trump by 17 points. In Michigan, they went for Trump by 11 points. In Wisconsin, they broke for Trump by a whopping 29 points, 59-30.

A late-breaking sex scandal involving Trump could easily have reconfirmed to a few thousand undecided voters in Pennsylvania, Michigan and Wisconsin, particularly suburban women who turned on Trump by 2020, that he was simply undeserving of their vote. Of course, we’ll never know if that’s true, but it’s why we have laws designed to prevent this kind of thing in the first place.

Second, my hypothetical also demonstrates an incredibly ugly double standard at work. For Trump, payments to his adult porn star lover to buy her silence were a just case of “Trump being Trump”—much as his boasts of sexually assaulting women captured on the Access Hollywood tape was just “locker room talk.”

As a nation, we have grown numb to Trump’s immorality, mendacity and criminality. The fact that he illegally disguised payments to buy silence over a sex scandal as “legal fees” is somehow less or even un-newsworthy precisely because they comprise just one illegal scheme among his many crimes. 

But here’s the good news: What the press and the public think about Trump’s misdeeds and cheating won’t matter in the courtroom. There, it’s looking, at least so far as the existing evidence indicates, like a slam dunk for the prosecution.

The court of law will be brutal for Trump

Barring any 11th hour reprieve, which seems unlikely now given that Trump has unsuccessfully attempted three times over the last week to further delay the trial, the parties will begin picking a jury on Monday. That jury, once seated, will consider only the evidence presented before it. And the question jurors must answer is this: whether Trump falsified business records in order to illegally cover up his violation of election law.

That means a lot less evidence from the state about the actual affair, and a lot more about how the payments were disguised so they would not be discovered. There will be the checks to Michael Cohen, many signed by Donald Trump, that falsely claim in the memo line that these were for his attorney services. There will be evidence that these payments were part of a pattern of “catch and kill”—a scheme by The National Enquirer designed to help Trump by buying the exclusive rights to a story and then never publishing it.

The prosecution has Trump dead to rights on the question of falsification of business records. In addition to a damning paper trail of the cover up, there will be key witnesses, including Trump’s fixer Michael Cohen, who will explain the whole scheme to the jury first hand. And there is audio tape of a conversation between Trump and Cohen about the catch and kill scheme.

The challenge for the prosecution will be to show that Trump falsified the records in order to help his election chances. His lawyers likely will argue that he did this instead to protect his marriage (ha!) or to protect his public image (which was inextricably wound up with his candidacy).

Meanwhile, Trump likely will sit silent and stony-faced, his face caked with orange foundation, shifting and muttering aloud as he did recently in another New York courtroom, while the prosecution methodically establishes the elements of the crime. My guess is Trump will be unlikely to garner much sympathy from the jury.

The defense will try to undercut Cohen as a liar and a felon. This will be interesting to watch, as Cohen got into hot water and went to prison for lying in order to protect Trump. It will be hard to tarnish Cohen without also dirtying their client.

His lawyers might also contend that the affair with Stormy Daniels never happened, citing a letter Daniels wrote in 2018 denying the affair. Half a year after writing that letter, however, Daniels recanted, explaining that she believed she had to deny the affair due to an NDA she had signed that she thought had left her no choice.

It doesn’t seem likely that Trump will win his case based on a defense that the affair and subsequent payments never happened. The checks and the payments don’t lie. Instead, as the jury likely will conclude, it was Trump who was lying, as he always, habitually, has.

Prosecutors usually obtain convictions. The success rate is above 90 percent, often approaching 98 percent. In this kind of case, built largely around the paper trail corroborated by the person who created it, it remains likely that District Attorney Alvin Bragg will establish the elements of the crime beyond a reasonable doubt. Sure, there’s always the chance of a rogue MAGA juror, but Bragg and his team will be on the lookout for that during voir dire. If prosecutors succeed in their presentation, the jury will likely return a conviction against Trump on 34 felonies.

Trump understands that he is facing extreme legal peril, which is why his lawyers have been hurling everything they can to delay the case. It’s why Trump sounds more unhinged than ever in his social media posts. He knows he may soon become the first criminally convicted ex-president in history.

Don’t sleep on this case.