Trump's criminal hush money trial is a big deal
Trump's criminal hush money trial is a big deal
If he really thinks it's a nothingburger, he certainly isn't acting like it.
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Despite a comically high number of attempts to stave it off, Donald Trump is set to face his first criminal trial later today.
It remains to be seen whether he’ll be able to control his behavior any better than he did in his civil trials for defamation and fraud. But given his inability — or willful refusal — to adhere to gag orders in the run up to the trial, it seems unlikely.
First, since it’s difficult to keep track of all of Trump’s criminal charges, let’s remember what he faces in this one. Last year, a New York grand jury indicted Trump on 34 felony counts of falsifying business records in the first degree. Prosecutors allege that Trump faked business records to hide $130,000 in hush money payments made to Stormy Daniels in 2016 so she would stay quiet about their 2006 affair.
Yes, these are the same payments that, in part, led to Trump’s former fixer, Michael Cohen, pleading guilty to federal charges back in 2018 and spending more than a year in prison. The government’s sentencing memorandum in that case didn’t name Trump but talked about Cohen arranging payments to two separate women with whom “Individual-1,” a person who later became president of the United States, had extramarital affairs. Though there was never any official confirmation, it appears that shortly after Trump left office, federal prosecutors in New York decided not to pursue charges against Trump.
However, just because the feds stepped aside did not require New York state to stop pursuing similar charges.
The 34 felony counts Trump now faces don’t refer to separate incidents but rather the multiple steps Trump took to hide the hush money payments. First, he is accused of faking a series of invoices to Cohen, saying they were for legal services when they were really reimbursement for Cohen paying the hush money. Correspondingly, Trump is alleged to have issued a series of checks to Cohen, which he falsely denoted as payment for legal services. Finally, prosecutors say that Trump then caused false entries about the payments to be created in the Trump Corporation general ledger. Trump is charged only with the falsifications as they relate to the payments to Stormy Daniels. However, prosecutors have also indicated they will be discussing the $150,000 paid to former Playboy model Karen McDougal so she too would keep quiet about her own affair with Trump.
Normally, falsifying business records is a misdemeanor, but if business records are falsified with intent to cover up or commit a different underlying crime, it is a felony. Manhattan District Attorney Alvin Bragg has accused, but not charged, Trump of concealing violations of election laws and tax fraud. Prosecutors do not have to prove that Trump actually committed those crimes, or any other. All they have to prove is that when Trump falsified business records, he did it with “intent to commit another crime or to aid or conceal the commission thereof.”
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In pre-trial motions, the Trump team made multiple attempts to block any discussion of any violations of election laws. These were unsuccessful, and the trial judge, Juan Merchan, has ruled that the prosecution can discuss that the falsification was designed to conceal a violation of federal campaign contribution limitations — and that Trump intended to violate a New York state election law prohibiting conspiring to promote or prevent someone’s election by unlawful means.
Prosecutors will also be allowed to provide evidence Trump knew he was reimbursing Cohen for payments to Daniels, not paying him for legal services, and that Cohen was given substantially more money — $420,000 — than the $130,000 paid to Daniels, in part to address tax issues Cohen would possibly face.
In a win for Trump, the judge ruled that prosecutors would not be able to show the infamous Access Hollywood tape where Trump bragged about grabbing women by the pussy, but could have a witness describe the exchange. Prosecutors wanted the tape in for context — that Trump was motivated to keep Daniels quiet because the tape had just come out, and he was concerned the Daniels news would further jeopardize his election chances. The judge agreed with prosecutors that the tape was relevant to showing Trump’s intent but agreed with Trump that he would be prejudiced by the tape being shown, rather than just described, to the jury.
As the trial approached, this was one of the few victories for the Trump team. As with all his cases, Trump alleged this was politically motivated, and here, he argued he was selectively prosecuted — targeted where other people who were similarly situated were not prosecuted. Trump’s basis for this argument will surprise no one who lived through the 2016 election: that the New York DA did not prosecute Hillary Clinton for not properly documenting money her campaign spent on the Steele Dossier. But this did not fly with the judge.
Nor was Trump able to prevail on his argument that the New York DA doesn’t typically prosecute people for falsifying business records with the intent to commit or conceal a different crime. The judge noted that the prosecution showed the DA’s office had brought approximately 437 cases charging just that in the previous decade. Just Security surveyed the last 15 years of New York state criminal cases and found over two dozen felony prosecutions for falsifying business records in the first degree. The Washington Post found that from 2014 to 2023, prosecutors brought first-degree business records falsification charges 11,663 times. In that same period, the Manhattan DA had 42 cases where the falsification charge was the top one, and the defendant, like Trump, was not charged with an additional, more serious crime.
Fighting dirty in court of public opinion
Since Trump couldn’t prevail on dismissing the criminal charges, he pivoted to two familiar behaviors: personal attacks and scorched-earth litigation.
After the prosecution presented evidence that Trump had targeted prosecutors and court employees, Judge Merchan imposed a limited gag order on March 26. Trump immediately responded by attacking the judge’s daughter, leading to the gag order being expanded to prevent attacks on the judge’s family.
Overly pugnacious Trump spokesman Steven Cheung said the expanded gag order “violates the civil rights of over 100 million Americans who follow President Trump and have a First Amendment right to receive and listen to his speech.” That is, of course, very much not how the First Amendment works. And on Saturday, Trump seemed to brazenly violate the order in a Truth Social post attacking Cohen, a key witness in the case.
Trump has also tried every last-ditch legal maneuver to stop this day from arriving. On March 7, Trump’s lawyers asked that this case be delayed indefinitely while the US Supreme Court decides his presidential immunity claim in the January 6 criminal case. This did not land well, with Judge Merchan ruling that Trump had ample opportunities to raise the immunity issue earlier but waited until the deadline for pre-trial motions had already passed and that the filing “raises real questions about the sincerity and actual purpose of the motion.”
Then, in just three days, from April 8 to April 10, Trump filed three separate emergency appeals. First, on Monday, he tried to get the state intermediate appeals court to delay the trial while he pursued a change of venue, saying he couldn’t get a fair trial in New York City. That was denied less than two hours after a hearing on the request. On Tuesday, a New York appellate judge took just 12 minutes to refuse a different request that the trial be delayed while he appeals the gag order.
Then, on Wednesday, Trump asked the appeals court to, you guessed it, delay the trial. This time, it was because he wanted time to appeal the denial of presidential immunity and to have Judge Merchan be recused from the case. This request for a trial delay was rejected in under 30 minutes. Trump had previously requested Merchan recuse himself, which Merchan denied last summer. The latest recusal demand is based on the absurdly attenuated argument that because Merchan’s daughter works for a firm that works with Democrats, she has “a direct financial interest” in the trial, and Merchan could “incarcerate and incapacitate” Trump to benefit his daughter’s business.
None of these three appeals has been decided. Only the emergency requests to delay the trial have been ruled on. The substance of all three appeals would still need to be briefed, argued, and ruled on, and of course, Trump could ask New York’s highest state court to review any of those decisions. But none of that solves Trump’s current problem, which is that he desperately doesn’t want his criminal trial to start.
None of this is good for Trump
This case is likely the only one that goes to trial before the election, given that Trump has had greater success obtaining procedural delays in his other criminal cases.
Arguably, this case represents the least satisfying set of charges against Trump. That’s not because what Trump did here wasn’t a real crime or that his behavior isn’t indicative of his comprehensively criminal mindset. Instead, it’s that the underlying facts are already well-known because of Michael Cohen’s indictment and plea and that as appalling as the hush money scheme might be, it pales in comparison to stealing classified documents, trying to overturn an election, and inciting an insurrection. There’s a bit of an “Al Capone went down for tax evasion” vibe about the whole thing.
However, Trump — who spent most of the weekend melting down on Truth Social — is not behaving like a person who thinks this criminal trial is small potatoes or that he is guaranteed a win.
Even if he prevails at trial or gets a conviction overturned on one of the numerous issues he’s already appealed, that won’t unring the bell of everyone outside the courtroom hearing all the evidence the prosecution will present. When you combine that with the fact Trump will likely not be able to control himself during the trial, there’s a real chance for the next several weeks to be wall-to-wall unfavorable coverage. No wonder he’s so desperate to make this all go away.
That’s it for today
Aaron is in Italy this week for a conference but we’ll be back with more Wednesday nonetheless.
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Thanks for reading, and have a good one.
Al Capone did indeed go down for tax evasion.
But He. Went. Down.
Please call it what it is—ELECTION INTERFERENCE!! He calls “Hush money cover up” a nothing burger to try to minimize it. Don’t play into that ploy!!! ELECTION INTERFERENCE!!!