A guilty verdict for Trump and its consequences for the country
If Democrats felt like cheering when the guilty verdict was read, they should think again.
Twelve New York jurors have found Donald Trump guilty of falsifying business records, a total of 34 felony counts, in history’s first criminal conviction of a former President. What a volatile moment for the country. Will the judge jail Mr. Trump? Will voters re-elect him in November anyway, in disgust of this concocted case? What if it’s thrown out on appeal? Will Republicans retaliate? The nation might soon regret this rough turn.
Thursday’s guilty verdict wasn’t entirely surprising, given the jury pool in Manhattan. If Mr. Trump had lucked out, he might have drawn one or two stubborn sceptics, like the Henry Fonda character in 12 Angry Men, resulting in at least a hung jury. Instead the fortunate one was Manhattan District Attorney Alvin Bragg, who filed the weakest of the four indictments of Mr. Trump, but who managed to drag his case first over the finish line.
Normally a felony conviction would be politically fatal for a candidate appearing on the ballot in five months. But normally a prosecutor wouldn’t have brought this case. Mr Bragg, an elected Democrat, ran for office as the man ready to take on Mr. Trump. When the new DA didn’t indict shortly after winning office, his top Trump prosecutors loudly quit, increasing the pressure on Mr. Bragg to do, well, something. Even after a guilty verdict, the case he ended up filing looks like a legal stretch.
The evidence from the six-week trial fleshed out some of the facts. Stormy Daniels testified that she and Mr. Trump had a sexual rendezvous in 2006, which he keeps denying, if implausibly. In the run-up to the 2016 election, Mr. Trump’s fixer Michael Cohen paid Ms. Daniels $130,000 to keep quiet. Mr Trump reimbursed him, and then some, in 2017. According to the DA, the crime was disguising this repayment as legal fees to Mr. Cohen for work under a retainer that didn’t exist.
On the law, though, the case was a bizarre turducken, with alleged crimes stuffed inside other crimes. By the time Mr. Bragg showed up on the scene, the Stormy business was old enough that Mr. Trump couldn’t be hit with misdemeanour falsification of records, because the statute of limitations had expired. To elevate these counts into felonies, the DA said Mr. Trump cooked the books with an intent to commit or cover up a second offence.
What crime was that? At first Mr. Bragg was cagey. He eventually settled on a New York election law, rarely enforced, that prohibits conspiracies to promote political candidates “by unlawful means.” This explains why prosecutors spent so much trial time on David Pecker, the National Enquirer boss. His outfit paid $150,000 in 2016 to silence another woman, Karen McDougal, who also says she had an extra-curricular affair with Mr. Trump. Mr Bragg’s argument is that they were all in cahoots, more or less, to steal the election.
Yet what “unlawful means” did this alleged conspiracy use? The DA’s argument was that there were three: First, the hush money was effectively an illegally large donation to Mr. Trump’s campaign. Second, more business filings were falsified, including bank records for Mr. Cohen’s wire transfer to Ms. Daniels. Third, false statements were made to tax authorities, since Mr. Trump’s repayment of Mr. Cohen was structured as income and “grossed up” to cover the taxes he would need to pay on it.
In some ways this Russian nesting doll structure, to use another analogy, defies logic. Did Mr. Trump falsify business records in 2017 to cover up an illegal conspiracy to elect him in 2016, whose unlawful means included false information in Mr. Cohen’s tax return for 2017? There was hardly any direct evidence about Mr. Trump’s state of mind. Federal prosecutors squeezed a guilty plea out of Mr. Cohen but notably didn’t pursue Mr. Trump. One news report said the feds worried that his “lack of basic knowledge of campaign finance laws would make it hard to prove intent.”
A help to Mr. Bragg’s prosecution is that the jurors were instructed that as long as they were unanimous that Mr. Trump was guilty of falsifying business records to aid or cover up an illegal conspiracy to get him elected, they didn’t all have to agree about which theory of the “unlawful means” they found persuasive. Perhaps this will be taken up by Mr. Trump on appeal. He will almost certainly argue, too, that the Stormy pay-off wasn’t a campaign expense, as Brad Smith, a former chairman of the Federal Election Commission, has been arguing all along.
We don’t doubt the sincerity of the Manhattan jurors, but many voters will digest all of this and conclude that, while Mr. Trump may be a cad, this conviction isn’t disqualifying for a second term in the White House. Judge Juan Merchan tolerated Mr. Bragg’s legal creativity in ways that an appeals court might not. What if Mr. Trump loses the election and then is vindicated on appeal? If Democrats think that too many Republicans today complain about stolen elections, imagine how many more might next year.
The conviction sets a precedent of using legal cases, no matter how sketchy, to try to knock out political opponents, including former Presidents. Mr Trump has already vowed to return the favour. If Democrats felt like cheering Thursday when the guilty verdict was read, they should think again. Mr Bragg might have opened a new destabilising era of American politics, and no one can say how it will end.
The Wall Street Journal
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