As the first criminal case against Donald Trump gets underway in New York City, the media have forgone their customary practice of declaring the “trial of the century”. Trial of the month is more like it, since three more are set to follow. The sheer number of criminal trials involving different allegations -- hush money payments, retention of confidential documents, and election interference -- would seem to guarantee a conviction and Trump’s final ejection from public life.
A conviction is indeed possible, even likely. But neither a conviction nor even jail time would disqualify Trump from running for the presidency. The important question is what impact a conviction might have on voters’ choices on election day. Given that most people have already made up their minds about Trump, we are talking about a small, obscure group of undecided voters in a handful of swing states. And given that most of these people seem to have little interest in, or knowledge of, politics, they likely know very little about the accusations against Trump. The media deluge from the trials may finally end their ignorance.
The trial in New York is about business records, not insurrections or national security. The indictment accuses Trump of violating a New York statute under which a person who, with fraudulent intent, “makes or causes a false entry in the business records of an enterprise” is guilty of a felony if he intended to conceal or commit another crime.
The “other crime” is not clearly identified in the indictment, but the focus of the trial is likely to be a federal campaign-finance violation (or possibly a violation of New York election law). Trump’s then-lawyer, Michael Cohen, paid hush money to the adult-film actress Stormy Daniels, who had threatened to disclose to a tabloid a sexual encounter with Trump. Paying money to someone to help a campaign is a campaign expenditure, and Cohen admitted to violating the law both by making a payment in excess of legal limits and failing to report it. Trump is accused of orchestrating this scheme, though he has not been indicted for the alleged campaign-finance violations.
The legal issues and the facts of the case are weirdly intricate. The US government did investigate Trump for violating federal campaign-finance law, but government lawyers probably feared that a jury would find that he concealed the hush-money payoff because it was personally embarrassing, not because it helped his campaign. That is what happened when the government prosecuted but failed to convict John Edwards in connection with the coverup of an extramarital affair during his 2008 Democratic presidential primary campaign.
Alvin Bragg, the New York district attorney, is not required to prove that Trump violated the campaign-finance law, only that he intended to do so. The federal government’s failure to indict Trump for campaign-finance violations suggests that Bragg may need to prove to a jury that Trump intended to commit a crime that the jury won’t think he actually committed. In making the journey into Trump’s brain to discover what exactly the man was thinking eight years ago, Bragg’s Virgil will be Cohen, an ex-con and admitted perjurer. Daniels will also testify.
You might think that this circus of seedy characters and events would end Trump’s electoral chances for good, just as Edwards’s dalliance destroyed his political career. But that would be a mistake, one that has been made a thousand times before. For Trump’s supporters, every new disclosure about his shocking behavior and repulsive character merely confirms the malevolence of the disclosers. In their view, Bragg’s prosecution of Trump for a business-records violation is actually an attempt to derail Trump’s campaign for the presidency by distracting him and exposing him to public embarrassment.
Exhibit A for this theory may be that Bragg has styled his business-records case as an election interference case rather than as a minor financial peccadillo. Bragg argues that Trump is a threat to New York’s reputation for business probity and to US democracy, bridging this yawning gulf by pointing out that the false business records concealed a campaign-finance violation that would have persuaded people to vote against Trump back in 2016 if they had learned of it. Hence, minor financial fraud is transmuted into major election interference. But the logic assumes that a substantial number of voters would not have supported Trump if they had known about the Daniels affair -- an unknowable and perhaps implausible proposition. It also stumbles on the inconvenient fact that the business-records falsification occurred after the election, not before it. Trump may have attempted to interfere with the election by depriving voters of information about (parts of) his scandalous past, but it is not clear that it affected the outcome.
So, how much will this trial matter? It won’t change Trump voters’ support and may be too confusing to influence those independent voters who have not been paying attention to electoral politics. Maybe all that matters is the symbolism of the thing. If Trump is thrown in jail, he will surely present himself as a political prisoner in the mold of Aleksandr Solzhenitsyn or Alexei Navalny. But the image of Trump being led off in handcuffs, or the (mental) image of him being strip-searched upon his reception into jail, will probably have more impact on people than anything that is revealed at the trial. Are Americans ready to elect a jailbird?
Well, that possibility cannot be ruled out.
Eric Posner
Eric Posner is a professor at the University of Chicago Law School. The views expressed here are the writer’s own. -- Ed.
(Project Syndicate)
