Former president Donald Trump has been indicted and schadenfreude is piled high in progressive precincts around the country. Seven years ago delegates at the Republican convention that nominated Trump for president trolled his opponent Hillary Clinton with the chant: “lock her up.” Despite her history of dubious behavior, Trump could be the one to end up behind bars.
He might deserve to go to prison, but almost certainly not for paying hush money to cover up an affair, the charge brought by New York City District Attorney Alvin L. Bragg. If true, Trump’s conduct was sleazy, but neither unusual nor criminal. The only basis for the indictment, as well as the investigation of a similar case involving another woman, is Bragg’s contention that the payment should have counted as a campaign contribution.
The theory is that Trump paid to protect his, er, reputation, in order to enhance his presidential chances. While it might be unfair to call such an assertion silly, it surely lacks credibility, as Trump’s attorney is likely to tell any jury that hears the charge.
Trump allegedly paid off porn star Stormy Daniels in October 2016, shortly before the election. At that time, The Donald’s reputation was rather well established—in the negative. Going into the campaign there likely were few Americans who saw him as the next leader for the Moral Majority. Seriously, did anyone other than the most cloistered naïf view him as a choirboy, a stellar example of abstemious behavior, a moral model for the community? Was there any voter who was shocked at the allegation, unnerved to discover that someone guilty of so many other excesses had yet another affair?
Which means he probably wasn’t paying to sustain his political viability. It is evident that tens of millions of Americans voted for him despite his personal peccadilloes. They believed that his political beliefs and combative nature were more important. Indeed, a last-minute effort, evidently fake and contrived, to burnish his reputation probably would have cost him votes. The US electorate knew what it was getting and still preferred him to Clinton.
Why the payoff? Most likely for the same reason other cheaters hide their affairs, to avoid getting caught by their spouse, kids, and others close to them. The disclosure could have wrecked Trump’s marriage, triggered a costly divorce, and interfered with his future plans, whether as president, television host, or whatever else came his way. Imagine spending the presidential transition negotiating a property settlement!
Why the payoff before the election? Because the decade-old fling had been of little public interest and had little private value before Trump’s presidential run. Only in late 2016 could Daniels extort some cash. Although the campaign triggered her demand, it likely was not the reason he paid her off.
There is one similar case of note, involving former Sen. John Edwards, the 2004 vice presidential nominee and 2008 presidential candidate. During the latter race two of his major backers paid off his mistress, for which he was later charged with violating federal campaign law. Reported Politico, the case “sparked significant criticism of the Justice Department by campaign finance lawyers who deemed the case legally flawed and by Democratic activists who considered it a form of political payback from a Republican prosecutor in North Carolina.” (In fact, the latter went on to serve four terms in Congress.)
Edwards’ defense was simple. Explained his lawyer, Edwards “did not violate any campaign law nor even imagined that any campaign laws could apply.” The jury acquitted him on one count and deadlocked, with majorities favoring acquittal, on four others; the Justice Department then dropped the case.
There is another point in Trump’s favor. It doesn’t appear that he expected to win. He publicly admitted that he figured the race was lost when the polls closed. Moreover, he was privately expecting defeat when he paid Daniels. In fact, it appears that he never expected to win, running for notoriety, not victory: “Trump’s longtime friend and former head of Fox News Roger Ailes used to say ‘if you want a career in television, first run for president.’ And that’s just what Trump did, with plans to start a news network and become ‘the most famous man in the world.’ A week before the election, Trump was sure he would lose the presidency. But still, according to [Michael] Wolff’s book, he told Ailes that it was ‘bigger than I ever dreamed of. I don’t think about losing, because it isn’t losing. We’ve totally won’.” In which case he wouldn’t have been paying hush money for campaign purposes.
It still might be hard to feel sorry for him, even if the charge is bogus, but anyone who wants civil debate and good government should be skeptical of the indictment. First, politicizing the justice system is in no one’s interest. Given the weakness of the charge, which was previously rejected by the Department of Justice, the indictment looks partisan. Which will encourage retaliation and make it more difficult to return from the dark side.
Second, criminal statutes should be interpreted narrowly. People, even Donald Trump, should have fair warning that their behavior might lead to conviction and prison. Most Americans, at least those not steeped in legal arcana, likely would be shocked that what looks like a garden variety payoff might actually be an illegal campaign contribution. As was Edwards, a successful trial attorney.
Third, far more serious charges have been leveled against Trump involving his post-election intervention in Georgia and the January 6 mob attack on the Capitol. Leading with a dubious, likely losing case will undermine other claims, irrespective of their factual strength. For instance, Jonathan Turley of George Washington University law school observed that “the New York case would be easily dismissed outside of a jurisdiction like New York, where Bragg can count on highly motivated judges and jurors. Although it may be politically popular, the case is legally pathetic.”
Fourth, an indictment widely seen as political will further divide the country and intensify political conflict. What better evidence for MAGA conspiracy theorists than a New York City Democrat making a name for himself by abusing the law and prosecuting the bete noire of progressives? Imagine the reaction if a jury rejects his dubious interpretation. And Republican prosecutors will be inclined to reciprocate, looking for their opportunity to score some Democratic scalps. Today’s political environment is already beyond unhealthy. If it continues spiraling downward it could drag America’s constitutional system along.
Ironically, the indictment could help Trump pull a Grover Cleveland, the only person to win non-consecutive presidential terms. Trump’s poll numbers are on the rise and the charge is likely to rally his Republican base behind him. GOP legislators privately desperate to separate themselves from him have been publicly defending him. His Republican rivals will feel forced to do the same and concentrate their fire on the Democrats. Even some lefty partisans might feel pressed to criticize what they see as a political prosecution. Although a majority of Americans said they would view an indictment as reason to vote against Trump, that might not apply to this case.
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Democrats still may expect the indictment to sink a Trump general election campaign, but he wasn’t supposed to win in 2016. And a few score thousand extra votes in the right states would have reelected him four years later. Does the Democratic Party really want to go for a tie-breaker
Donald Trump faces a plethora of serious legal charges. Claiming hush money to be a campaign contribution is not one of them. Democrats may eventually rue further criminalizing politics.
Doug Bandow is a Senior Fellow at the Cato Institute. A former Special Assistant to President Ronald Reagan, he is a graduate of Stanford Law School and a member of the California and D.C. bars. Bandow is a 19FortyFive Contributing Editor.