Trumped-Up Charges?

It’s like watching a classic rom-com “will they, won’t they”—everybody seems to agree Manhattan District Attorney Alvin Bragg is about to order Donald Trump’s arrest and indictment, but nobody knows quite when. Today, as Trump predicted? Saturday? Tomorrow? Not until closer to the subsequent arraignment, reportedly set for sometime next week as law enforcement officials prepare security measures in case of rioting?

Whatever the timing, if and when the camera shutter snaps on his mugshot, it’ll mark the first time a former president of the United States has faced criminal indictment. But it’s far from clear the expected charges will stick: Bragg reportedly plans to charge the Florida resident in connection with a grand jury investigation of a hush money payment to adult film star Stormy Daniels (née Stephanie Clifford), a now years-old incident other law enforcement officials—and previously Bragg himself—have declined to pursue. The precise details of the expected indictment have yet to emerge, but the possibility is already causing a political ruckus.

The case hangs on a tawdry episode from the halcyon days before the 2016 presidential election, when now-former Trump attorney Michael Cohen paid Daniels $130,000, reportedly to keep her from going public about an alleged affair she had had with Trump in 2006. Cohen alleges the Trump Organization reimbursed him and made accompanying payments to the ultimate tune of $420,000, and he pled guilty in 2018 to federal charges that the payment—along with a similar one to model Karen McDougal—amounted to illegal campaign contributions. The sentencing memorandum in Cohen’s case says Trump’s company falsely accounted for those payments by portraying them as legal retainer fees to Cohen. 

Federal prosecutors opted not to pursue then-President Trump in the case, and Bragg himself would later take heat from attorneys formerly in his office for declining to prosecute what he considered underbaked tax charges against Trump’s company. But he seems to feel differently about this case and will reportedly slap Trump with a misdemeanor for falsifying business records, punishable by up to a $1,000 fine and about a year in jail. That misdemeanor carries a two-year statute of limitations that has likely already passed, but prosecutors have a longer runway with felonies—which this misdemeanor would become if New York prosecutors can demonstrate it was carried out with the intent to commit or conceal a second crime. In this case, that second crime would likely be a violation of either New York State or federal election law. Because the payment was intended to benefit his campaign by keeping the Daniels story quiet, prosecutors would allege, it constituted an improper campaign donation.

Proving the misdemeanor might not be too challenging—we’ve seen checks made out to Cohen featuring Trump’s flowy signature which imply Trump knew about the dubious legal retainer situation. But proving a campaign finance violation will be a much heavier lift. Cohen pled guilty, yes, as part of a larger deal, but Trump’s attorneys likely plan to argue the payment to Daniels was about saving his reputation or his relationship with his wife, not the campaign. John Edwards—the former Democratic senator from North Carolina and 2004 vice presidential nominee—successfully defended himself against similar campaign finance charges after a donor provided money to support Edwards’ mistress in what prosecutors said was essentially a campaign donation to protect his 2008 presidential bid. 

If that wasn’t enough to give prosecutors pause, Bragg’s plan also reportedly relies on some untested legal theories—can he draw in a federal law, over which he has no jurisdiction, for this state case? Can he apply a New York election law to a federal election? Unless Bragg has turned up more evidence we’re not yet aware of—or plans to pursue different charges than the ones that have been reported—it’s not clear why he’s choosing to devote his office’s finite resources to pursuing a years-old misdemeanor. Unless, of course, he’s caving to political or career pressure to take a big swing at this high-profile target as plenty of pundits have alleged. As our old friend David French put it in the New York Times: “Although [Trump] is accused of making hush money payments, the legal theory that it could support a felony charge ‘has largely gone untested’ and ‘would therefore make for a risky legal case against any defendant.’ If that’s the case, then don’t file the charge.”

The indictment may not have arrived yet, but the takes sure have. Florida Rep. Byron Donalds declared the situation “one of the worst uses of the justice system we’ve ever seen,” while Rep. Jim Jordan said Bragg “got pressured, I think, from the left.” The House Judiciary Committee, chaired by Jordan, has demanded Bragg testify to Congress about his investigation and provide associated documents. “Your actions will erode confidence in the evenhanded application of justice and unalterably interfere in the course of the 2024 presidential election,” Jordan wrote in a joint letter to Bragg with House Oversight Committee Chairman James Comer of Kentucky and House Administration Committee Chairman Bryan Steil. “In light of the serious consequences of your actions, we expect that you will testify about what plainly appears to be a politically motivated prosecutorial decision.”

Trump, according to people close to him, is reportedly nervous about the prospect of being arrested, getting fingerprinted, and asking for bail. But you wouldn’t know it from his recent Truth Social activity: “THERE WAS NO CRIME!!!” and, “REMEMBER, THE SAME ANIMALS AND THUGS THAT WOULD DO THIS TO PERHAPS 200 MILLION PEOPLE, BUT ACTUALLY ALL AMERICANS, ARE THE COMMUNISTS, MARXISTS, RINOS, AND LOSERS THAT ARE PURPOSEFULLY DESTROYING OUR COUNTRY!” and, “OUR NATION IS NOW THIRD WORLD & DYING. THE AMERICAN DREAM IS DEAD!” and, “THEY’RE  KILLING OUR NATION AS WE SIT BACK & WATCH. WE MUST SAVE AMERICA!PROTEST, PROTEST, PROTEST!!!” 

Perhaps fearing a redux of the last time Trump made a similar call to arms, other top Republicans have been more circumspect on that last point. “I don’t think people should protest this, no,” House Speaker Kevin McCarthy told reporters Sunday before adding a slightly more dubious claim: “I think President Trump, if you talk to him, he doesn’t believe that, either.” Trump’s calls for protest may have helped produce what intelligence officials reportedly described to CBS News as a “significant increase” in violent online rhetoric from extremists, but reportedly not concrete attack plans. Only about 50 protesters showed up at a Tuesday evening rally in Manhattan, and Trump supporters have warned each other federal officials might use protests that turn violent as a pretext to arrest them.

If Trump were a normal candidate, you might expect his electoral opponents to jump at the opportunity to paint him as a criminal. But Trump allies have made a point to push other potential Republican presidential contenders to prove their partisan cred by leaping to Trump’s defense. A few condemned the indictment—albeit with far less passion than Trump himself. “I think it just tells you everything you need to know about the radical left in this country,” former Vice President Mike Pence told ABC’s This Week. “It just feels like a politically charged prosecution here.” 

After a few days of silence that did not go unnoticed, Florida Gov. Ron DeSantis spoke up Monday to criticize the prosecution as partisan, but also take a not-so-veiled swipe at Trump on morality grounds. “I don’t know what goes into paying hush money to a porn star to secure silence over some type of alleged affair,” he said Monday. “I’ve got real issues to deal with here in the state of Florida.” Trump shot back swiftly, with a sign of what’s to come. “Ron DeSanctimonious will probably find out about FALSE ACCUSATIONS & FAKE STORIES sometime in the future, as he gets older, wiser, and better known,” he wrote on Truth Social, insinuating DeSantis would one day face “FALSE ACCUSATIONS” of his own from “classmates that are underage” or “possibly a man!”

Trump faces the possibility of additional charges outside Manhattan, and they’re widely considered to be much stronger cases: In Georgia for his efforts to overturn the 2020 election results, and in Washington, D.C., for mishandling classified documents and his role in the January 6 Capitol attack. But some political analysts fret this comparatively trivial case leading the way will distract from the others, or fire up Trump’s base and sway voters convinced of politically-targeted prosecution

Republicans and Trump allies have enthusiastically endorsed this idea. “The prosecutor in New York has done more to help Donald Trump get elected president than any single person in America today,” said GOP Sen. Lindsey Graham. “Mr. Bragg, you have helped Donald Trump, amazing.” Taylor Budowich, head of pro-Trump super PAC MAGA Inc., insisted an indictment “will not only serve to coalesce President Trump’s support, but it will become the single largest in-kind contribution to a federal campaign in political history.” It’s also reportedly helped Trump with contribution contributions, too. 

But FBI officers entering Mar-a-Lago to retrieve classified documents didn’t produce the lasting boost for Trump many predicted at the time, and it’s possible that ongoing legal fights—helpful in a GOP primary—could weigh him down in a general. “Who would Trump add to his coalition that wasn’t there in 2020 if he’s indicted, arrested, or found guilty?” asked conservative radio host Erick Erickson last night. “He lost in 2020. This doesn’t grow that total.”

Worth Your Time 

• The Dispatch’s Scott Lincicome had a piece in the Atlantic on Monday, writing about—what else—trade and maritime law. “Industrial policy is once again hot in the United States,” he notes. “Federal subsidies and trade restrictions—fueled by pandemic- and China-related security risks and intended to boost strategic commercial industries such as semiconductors and batteries—have proliferated dramatically since 2020. Collectively, the Infrastructure Investment and Jobs Act, the CHIPS and Science Act, and the Inflation Reduction Act will funnel hundreds of billions of taxpayer dollars to favored companies in the United States, marking one of the biggest U.S. industrial-policy pushes since the ’80s. The ribbon-cutting ceremonies and golden shovels that will accompany commercial projects supported by these laws will make for great photo ops and generate lots of political excitement. But the cameras won’t catch the invisible knock-on effects and unintended harms. And if the Jones Act is any guide—which, really, it should be—they’re going to be worth stewing over.”
• President Biden’s days as the darling of the progressive activist class are likely coming to an end, Jonathan Chait writes for New York Magazine. A few recent policy moves have signaled this shift: “Biden is declining to block a bill in Congress overriding a liberalization of the D.C. criminal code, angering both advocates of D.C. sovereignty and anti-police activists,” Chait notes. “He approved a plan to allow ConocoPhillips to drill oil in Alaska. And he is signaling an intent to reinstate family detention along the southern border in order to deter migrants. Another perhaps even more significant sign comes from Biden’s budget proposal, which lacks a health-care public option and lower eligibility for Medicare. The reason I believe recent events portend a change is that a series of underlying conditions that permitted the alliance between progressives and Biden is changing.”

Presented Without Comment  

Also Presented Without Comment  

Also Also Presented Without Comment