The former US president pleaded not guilty to 34 separate felony charges—all of which are based on a 2016 payment to a porn star. How did we get here—and what’s next for the Don?
Editor’s note: We’re all suffering from Trump exhaustion so we’re keeping this explainer shorter than others. Our reading list has all the nerdy legal details you need.
The original crime
The golf tournament: Back in 2006, Trump was in Lake Tahoe attending a celebrity golf tournament. During this four-day event, he allegedly propositioned or had sex with at least four women. Three of them were porn film actresses and the fourth a Playboy model. Of these, Stormy Daniels and one other woman—Karen McDougal—consented to have sex with him. Point to note: Trump had married Melania just eighteen months ago—and their son was four months old.
This is how Daniels described the encounter:
She remembers talking afterward, with Trump telling her she was “someone to be reckoned with, beautiful and smart just like his daughter,” presumably referring to Ivanka. (Tiffany was then only 11.)
The on-off affair with both McDougal and Daniels carried on for some time—before petering out.
The hush money racket: Daniels had been trying to sell her story to a tabloid since 2011—as was McDougal. These became especially valuable once Trump announced his run for the White House. This is also when a flood of stories about sexual harassment and misebehaviour became public. To help his buddy Trump, David Pecker—the head of American Media Inc which owned the National Enquirer—used a ‘catch and kill’ strategy. Basically, AMI would pay for the story—and then not publish it.
The Stormy Daniels problem: In August, 2016, AMI paid McDougal $150,000 to keep her mouth shut—and paid $30,000 to a doorman who alleged Trump had fathered a secret love child. But Pecker backed out of protecting Trump in the Daniels case. So Trump used his personal lawyer, Michael Cohen, to take care of it. He set up a shell company to pay Daniels $130,000 on October 27. The date of the US presidential election: November 8.
The 34 felony charges
34 entries, 34 charges: Trump returned the money to Cohen in monthly instalments in 2017—marking them as “legal expenses” for the Trump Organization. And that’s the sole basis of the charges:
The 34 counts in the indictment refer to allegations of 11 falsified invoices, 12 falsified general ledger entries and 11 checks falsely recording hush money repayments as retainers.
It’s about the coverup: US election law requires a candidate to declare all campaign-related expenses. All three payments—to Daniels, McDougal and the doorman—were made at the height of the campaign. In 2018, Trump’s lawyer Cohen pleaded guilty to violating federal campaign finance laws by making that payment to Daniels and others. And he claimed to have done so on Trump’s orders.
Hence, prosecutors say Trump “orchestrated a scheme” to influence the 2016 election. But the case against him isn’t about the crime—it’s all about the coverup: “The defendant, Donald J. Trump, falsified New York business records in order to conceal an illegal conspiracy to undermine the integrity of the 2016 presidential election.”
Treading tricky legal ground: The New York District Attorney Alvin L Bragg has been a little creative in interpreting the law—and framing the charges. Typically, falsifying business records is a misdemeanour—but Bragg has turned it into a felony—which is a bit tricky:
To elevate it to a felony, the district attorney, Alvin L. Bragg must prove that Mr. Trump’s “intent to defraud” was in service of a second crime. In this case, it is unclear whether Mr. Bragg has settled on the specifics of that second crime. During a news conference after the arraignment, Mr. Bragg mentioned a number of potential underlying crimes, most prominently a violation of a state election law that bars any conspiracy to promote “the election of a person to public office by unlawful means.”
Translation: Fudging your books is a felony only if you did it to cover up a more serious crime. We don’t know what this second crime is at this time. But also interestingly, this:
They must only show that there was intent to “commit or conceal” a second crime. Prosecutors do not have to charge Mr. Trump with any secondary crime, or prove that he committed it.
Point to note: Even if Trump is proved guilty, he is unlikely to go to jail. He has been charged with the lowest level of felonies—which carry a maximum sentence of four years in jail. And first-time offenders usually receive much lighter punishment.
Looking ahead: potential winners vs losers
Of course, becoming the first US president to be charged with a felony is not a win. As the Wall Street Journal notes: “Not since a police officer stopped Ulysses S. Grant for speeding in his horse-drawn buggy in 1872 has a current or former president been arrested.”
But, but, but: The case comes just as the US is gearing up for the 2024 presidential election. Trump is the only prominent candidate to have declared his candidacy. The case gives him the opportunity to play martyr and rally his base—which is already enraged at the charges. He has already raised $10 million since news of the indictment broke. An election year with Trump hogging the spotlight is bad news for his main Republican rival, Ron DeSantis: “Any development that stands to render the primary a referendum on the former president is bad news for anyone seeking to turn the page.”
Data point to note: Trump has been rising in the polls once again—at least among Republicans. While 57% of Americans think Trump should be disqualified from running again—a whopping 75% of Republicans disagree. And 93% of Republicans, plus 70% of independent voters view the case as mainly motivated by politics. That kind of loyalty will be hard for any other Republican candidate to match.
As for Biden: Trump’s wild antics—and that of his supporters—may once again persuade American voters that they are better off with Mr Boring Biden—who can position himself as “the anti-chaos president”:
To the extent that the remainder of Mr. Biden’s term is a split screen between the 45th and 46th presidents, White House officials are willing to live with less airtime if it means their president is seen focusing on manufacturing, health care and climate change while the other one is seen focusing on pretrial motions, hostile witnesses and records of hush money paid to a porn star.
OTOH, Biden’s team will have to work twice as hard to grab the public’s attention. While US presidents are typically guaranteed airtime, Biden may lose his to Trump:
When Mr. Biden flew to Minnesota on Monday to promote a factory making hydrogen electrolyzers, the news channels showed Mr. Trump’s private plane, the so-called “Trump Force One,” taking off for New York.
The bottomline: American politics has become all about spectacle—emptied of values or ideas. That’s not good news for any democracy—leave alone one that is readying to choose its next leader.
Reading list
New York Times has a good explainer on the charges—while CNN offers a nerdier legal analysis. Vox has the most comprehensive overview of the case—and its explainer on Stormy Daniels offers a good refresher. For what’s next, read The Atlantic’s more optimistic view on Trump’s support, New York Times on what it means for Biden, and the Wall Street Journal (splainer gift link) on the fallout for Republicans.
