Trump is on trial for the ‘crime’ of being Trump

The first of Donald Trump’s criminal trials kicked off in earnest this week in New York. Manhattan district attorney Alvin Bragg has charged Trump with 34 felony counts, alleging that he falsified records to cover up a ‘hush money’ payment to porn star Stormy Daniels.

It’s an unprecedented case. Never before has a former US president, or a leading candidate for an upcoming presidential election, faced criminal charges. There’s a good reason why America hasn’t had such a case before: seeking to jail your political opponent is generally understood to be something only banana republics do.

It’s also an absurd and unjust case, involving novel legal theories and obvious political intent. No one other than Donald Trump would be subject to such charges.

The Manhattan trial is part of the ‘lawfare’ offensive that is currently being waged by President Joe Biden and the Democrats against Trump. It is one of four criminal cases that Trump faces. He also has two federal cases, related to his handling of classified documents and to the ‘January 6’ riots, and one in Georgia, alleging that he subverted the 2020 election. These other cases are delayed, so the Manhattan case may be the only one to be tried before the November presidential election. Democrats have even tried to knock Trump off the ballot in multiple states, an anti-democratic scheme that was stymied by the Supreme Court last month.

The Democrats’ aim is to brand Trump as a convicted felon and put him in jail. They’re hoping that a verdict against Trump will give the Biden campaign a decisive advantage in this year’s elections.

Members of the anti-Trump ‘Resistance’ have waited a long time for this day. They are excited to see ‘Hitler Pig’, as Biden’s aides have dubbed him, finally get his comeuppance. For Manhattan district attorney Bragg, this indictment is the fulfilment of his 2021 campaign promise to ‘get’ Trump, by charging him with any crime he could find once elected. Such political targeting by a state official ought to be disqualifying, but in the eyes of Democrats, Bragg is a hero.

While Democrats are crowing at seeing Trump in court, most Americans aren’t buying it. An AP-NORC survey finds that just one in three Americans thinks Trump did something wrong in the hush-money case. Only the most hard-bitten partisan refuses to see how political these charges are. The events in the Manhattan case relate to the 2016 election. Yet the New York district attorney’s office waited seven years to bring an indictment, conveniently landing the case in court during an election year.

It’s understandable that most Americans would see through these hush-money charges and sense the case is fishy. Based on what we know, Bragg’s arguments are weak, convoluted and reliant on untested legal theories. If you’re thinking about doing something as politically explosive as trying a former president and current candidate, ‘innovative’ shouldn’t be a word that’s used to describe your case. That is, you wouldn’t do all this if you wanted to maintain the appearance of political neutrality. But Bragg doesn’t seem to care.

The case revolves around a payment of $130,000 by Trump’s former fixer, Michael Cohen, to porn star Stormy Daniels in 2016. Paying hush money isn’t against the law. Bragg alleges that Trump falsified the records of reimbursement payments to Cohen, disguising them as fees for legal services. But even if that were true, this would only be a misdemeanour, not a felony. What’s more, the statute of limitations had already expired on charging Trump with a misdemeanour.

In order to nail Trump in this election year, Bragg had to – somehow – convert these charges to a felony. This is where his creativity really takes flight. Bragg seeks to prove that Trump falsified records with the intent to commit or conceal another crime, which is a felony under New York law. Trump’s alleged second crime, according to Bragg, is violating federal campaign-finance laws. In other words, Bragg contends that this payment was part of a larger scheme to influence the 2016 election.

This interpretation of federal election law is highly questionable, to say the least. Most obviously, paying off a mistress is not generally considered a campaign expense. Further, Bragg’s charging Trump with a violation of a federal law in a state court (ie, in New York) is an untested legal gambit. The usual authorities on campaign-finance laws are federal agencies, namely the Department of Justice and the Federal Election Commission. Both investigated Trump on these specific charges and decided not to pursue the case. But Bragg, a state official, thinks he knows better.

Paying hush money to a porn star is squalid, but not illegal. The idea that Trump should have declared this payment as a campaign expense is ludicrous. Failing to do so is not election fraud or interference. Even legal experts who are not Trump fans see the problems in this case. ‘Any voters who look beneath the surface are sure to be underwhelmed’, says Richard Hasen, UCLA professor and voting-rights advocate. ‘Calling it election interference actually cheapens the term and undermines the deadly serious charges in the real election interference cases’, he says.

Do the many weaknesses of Bragg’s case mean he can’t win a conviction, at least on some charges? No. Judging by the opening statements on Monday, the prosecutors are introducing any anti-Trump arguments they can find – like lurid tales of Trump’s sex life and unrelated civil cases that Trump has lost – to distract the jury. In a complicated case like this, that approach might work. Moreover, the legal system in deep-blue Manhattan is not exactly Trump-friendly. Prosecutors ‘could well succeed in a city where nine out of 10 potential jurors despise Trump’, says legal analyst Jonathan Turley.

Whatever the outcome of the case, when it comes to the political implications, the court of public opinion will matter more than the court of law. Even with a conviction, Trump may ultimately triumph in the eyes of voters. Certainly, if the recent past is any guide, we know that he has an ability to turn his opponents’ overreach to his advantage. Given the explicit aim of targeting Trump in this Manhattan trial, many Americans will no doubt view a guilty verdict as unfair and see him as the victim of a political vendetta.

The main theme of the Biden re-election campaign is that Trump represents a ‘threat to democracy’. But the problem for Biden and the Democrats is that, when it comes to democracy, many view his party as a worse threat than Trump. After all, it was the Democrats who sought to take Trump off the ballot. It was Democrats like New York attorney general Letitia James who brought a civil trial that sought to bankrupt Trump (and won, to the tune of $454million). And it is Democrat Alvin Bragg – a district attorney who prefers not to prosecute street crimes in Manhattan, like the goons who sucker-punched random women – who has found the time to single out Trump and try to nail him on how he keeps his books.

The crusade to get Trump is unhinged. It represents an abuse of legal power. This is the real threat to democracy in the US today. If there is any ‘election interference’ going on, it is coming from the Democrats who have put Trump on trial.

Sean Collins is a writer based in New York. Visit his blog, The American Situation.