Klasfeld’s reporting is part of Just Security’s Trump Trials Clearinghouse.
Consider a thought experiment.
On the cusp of the 2016 presidential election, after the “Access Hollywood” scandal sent his campaign reeling, then-candidate Donald Trump signs a $130,000 personal check to Stormy Daniels. He does so with the explicit goal of covering up his alleged affair to the voting public. But because such a payment is arguably an in-kind donation to his campaign, Trump in an abundance of caution, reports the payoff to the Federal Elections Commission.
In this alternative version of U.S. history, it’s hard to imagine Trump gearing up several years later for an unprecedented moment — the debut criminal trial of a former president.
The reason for that is simple and often overlooked: Former President Trump is not facing a trial for making “hush-money” payments, which is not a state or federal crime. The former president’s lawyers and handlers have characterized the payments as nothing more unusual than a confidential settlement entered into courts across the country every day. But Trump didn’t cut a simple check.
And the backdrop of the transaction, set against more than two dozen women accusing Trump of sexual misconduct before voters went to the polls, made it anything but routine.
Trump’s New York Indictment, Mapped
For Manhattan District Attorney Alvin Bragg, the grand jury’s indictment alleges something far more serious: an attempt to “corrupt” a presidential election, giving Trump an illegal edge in a razor-thin race.
“The core is not money for sex,” Bragg told a local NPR affiliate late last year. “We would say it’s about conspiring to corrupt a presidential election and then lying in New York business records to cover it up.”
Since that time, Manhattan Supreme Court Justice Juan Merchan issued multiple rulings reinforcing that framing. The judge called the charges “serious” and refused every effort by Trump to keep federal and state election law out of the case. Though Trump is not technically charged with election interference — a federal statute distinct from the one he’s accused of violating — the main theories of the case behind all 34 counts ask jurors to find a plot to deceive voters in New York and nationally. The phrase “hush money” obscures the byzantine system through which Trump’s former attorney Michael Cohen transmitted the payments and the former president reimbursed him over the course of nearly a year. Obtaining a home equity loan from First Republic Bank, Cohen funneled $130,000 through his shell company Essential Consultants LLC to attorney Keith Davidson, Daniels’ lawyer at the time, who then compensated her. As first reported by The Wall Street Journal, Cohen also hired the IT firm RedFinch Solutions to rig online polls in Trump’s favor: promising to pay $50,000, then ultimately stiffing the company.
IMAGE: The flow of funds in Trump’s Hush Money Pay Off Scheme (Credit: Pooja Shah, Just Security).
To make him whole, Trump needed to “gross up” Cohen’s payment to account for taxes and give him a bonus: totaling $420,000, paid out in $35,000 monthly installments for nearly a year, according to the indictment. The Rube Goldberg-like system sparked dozens of criminal charges because it operated on reams of allegedly falsified business records describing them as compensation for “legal services” — each one, prosecutors say, a crime that misled the voting public and tax authorities. (Cohen listed the RedFinch expense, blandly, as “tech services.”)
IMAGE: Infographic examining Trump’s criminal case. (Credit: Pooja Shah, Just Security)
How Trump Proved an Old Adage in Washington Politics
Stripped of rhetoric, Trump stands accused of falsifying documents in a similar way that recently landed him a $464 million civil fraud judgment and led to the shutdown of his family’s charity years earlier. Campaign finance experts believe that, absent an allegedly elaborate cover-up, even a hush-money plot explicitly aimed for electoral gain would have gotten a pass, at least under criminal law.
“If Donald Trump just paid his own debts, he could’ve pretty easily avoided criminal behavior,” said Jordan Libowitz, a spokesperson for Citizens for Responsibility and Ethics in Washington, a government watchdog.
Instead, Cohen used a bank’s money to pay Daniels, and Trump made his namesake business the vehicle for the reimbursements, illegally disguising their purpose, according to prosecutors.
“There’s a line that’s older than me how the best way to avoid scandal in Washington is to use your own money and sleep with your own wife,” Libowitz quipped.
To win at trial, prosecutors do not need to prove that Trump actually had a tryst with Daniels, only that the former president broke the law in the methods used to cover up her account. Under the terms of the trial judge’s order earlier this year, the jury will be able to hear three theories of the case from prosecutors: that Trump falsified the business records to commit a violation of federal election law, state election law, and New York tax law.
Bragg’s Battle in the Court of Public Opinion
In public statements, Bragg all but ignores the tax fraud theory of the case, which involves a somewhat technical violation of the law: Cohen overpaying his taxes to disguise the reason for his inflated reimbursements. Such a claim may be sustainable in a court of law, but a lack of financial harm may not resonate in the court of public opinion.
In justifying the first-ever prosecution of a former president, critics understandably demand that the alleged crime matches the historic weight of the case. There’s a reason that the name of the statute Trump allegedly violated hardly ever seems to make an appearance in headlines about the New York case. Falsifying business records, a class E felony under state law that rarely leads to jail for first-time offenders, does not capture the national milestone. On the other hand, framing the case as an attempt to corrupt the 2016 presidential election could work against that trend — and to his critics, the legitimacy of Trump’s presidency.
Bragg calls the election law-related theories the “heart” of the case, and in sending the case to trial, Manhattan Supreme Court Justice Juan Merchan appeared to adopt that framing about the alleged “effort to influence the 2016 Presidential election.”
“In this Court’s view, those are serious allegations,” Merchan added.
Trump’s long-scheduled trial in New York was nearly adjourned to make way for his Jan. 6-related election obstruction trial in Washington, D.C., before that case was postponed by ongoing appeals on the former president’s claim of absolute immunity, which are now with the U.S. Supreme Court. At one point, Bragg volunteered to let it go first, in an apparently tacit acknowledgement that it was more consequential. The New York indictment is not about Trump’s attempt to overturn the 2020 election, like the cases in Washington and Georgia, or his alleged mishandling of classified information and associated threats to national security.
Now, Bragg is on a quest to prove that his criminal prosecution is no less worthy of a history-making trial.
Both federal and state judges have found Bragg’s core theory of the case plausible: that Trump’s circuitous scheme for hiding the payments broke New York’s falsification of business records law, as well as federal and state election laws. Justice Merchan’s recent rulings make clear that he views the heart of the case as about much more than simply inaccurate paperwork, and he has given prosecutors wide latitude to tell jurors about the many scandals Trump’s campaign sought to smother when he allegedly designed the payoff system– including the “Access Hollywood” tape to the “catch-and-kill” scheme to quash former Playboy model Karen McDougal’s allegations.
There are some limitations on the evidence Justice Merchan will allow prosecutors to present: The jurors cannot actually view or hear the footage of Trump boasting about grabbing women “by the pussy,” though they may learn what he said through witness testimony, and the judge has not yet decided whether the panel can hear about the multiple women who accused Trump of sexual assault right before the election. In such rulings, Justice Merchan aims to deemphasize arguably sensational and lurid details that may compromise Trump’s right to a fair trial. Meanwhile, the judge has given prosecutors plenty of runway to present what they describe as Trump’s motive — to salvage a campaign in a tailspin from cascading allegations of sexual misconduct, making the 2016 election the backdrop to every count of the indictment.
Of Trump’s four criminal cases, the New York charges may pose the least potential peril in terms of their sentencing exposure, but they aim at a significant target: how the 45th president and presumptive GOP nominee first got into office.