“I could stand in the middle of 5th Avenue and shoot somebody, and I wouldn’t lose voters.” Donald Trump, candidate for president of the United States, January 2016.
Much has happened in the years since that speech. Troubling things were revealed or credibly alleged about him: sexual improprieties (maybe even assault), attempts at election tampering (maybe even collusion with foreign powers), mishandling (maybe even stealing) classified government documents, soliciting fraudulent votes in an election (maybe even attempting a coup).
None of it has significantly swayed his supporters. These accusations aren’t the same as publicly committing murder, obviously, but they are serious charges that, before 2016, would give people pause about any politician, in case they turned out to be true. The fact that people are willing to brush them aside suggests Trump’s statement was a disturbingly accurate read on the kind of people he attracts and the unwavering loyalty they offer him.
Oddly, his opponents display a similarly intense fixation with him. I’ve written before that something about Trump inspires both cult-like followers and cult-like detractors. The latter have spent the last eight years somehow trying to “get” him. Two impeachments. A months-long special counsel investigation. Threats of multiple lawsuits for everything from tax evasion to insurrection. Some Democrat-dominated states tried to drop him from the ballot in the upcoming election based on a constitutional provision disqualifying candidates who previously engaged in insurrection against the nation while holding public office. But Trump was never convicted of this. He hasn’t even been charged with it. In a case pending before the U.S. Supreme Court about the Capitol riots of 6 January 2021, the charge is election obstruction, not insurrection. A mere accusation by political opponents is, of course, insufficient for a constitutional disqualification.
Similarly, the conservative-dominated Supreme Court, three out of nine members of which are Trump appointees, has held up the election interference cases, which frustrates informed choice in the next electoral process. No matter the outcomes of the cases, they’re unlikely to disqualify Trump’s candidature under the constitution but could have state law implications. Crucially, the Court’s decision, with the usual published judicial reasoning, would provide indispensable information for voters.
Meanwhile, on 30 May, a verdict was reached in the case of The People of the State of New York v. Donald J. Trump, convicting Trump of 34 counts of a felony, falsification of business records. There was only a modest slip in his favorability numbers. Polls show that more than 90 per cent of his supporters remain supportive, and almost a fifth of them are now more strongly resolved to vote, whereas before the verdict, they preferred him to other candidates but were not planning to vote.
In any other time, in relation to any other candidate, it would be astonishing for someone’s approval rating to be so undamaged by a criminal conviction. But these are unprecedented times, and it was an unprecedentedly convoluted prosecution. And Trump, of course, is not like anyone else.
But also, while it’s true that many Trump supporters are unmoved because of their irrationally steadfast hero-worship of him, it is also true that the case itself and its much-ballyhooed outcome—with headlines screaming “guilty on 34 felony counts!”—is thin on substance.
First, some background. During Trump’s 2016 presidential run, a pornographic actress named Stormy Daniels, with whom he allegedly had some sexual history, was paid off by Trump’s lawyer, Michael Cohen, in exchange for her agreement not to divulge the affair. She signed a non-disclosure agreement (NDA). Nevertheless, she later made her story public and claimed the NDA was invalid based on various theories.
The point relevant to this case is that the money paid to Daniels by Cohen was reimbursed by Trump in payments recorded in Trump’s accounts as legal fees. And the “34 counts” are all just this one scheme, broken up into 34 separate payments over time.
Here’s the snag: falsification of business records like this—where no party is claiming injury (financially or otherwise) who might be owed damages, where no unpaid taxes are at issue, and where no asset valuation for stock market disclosure purposes is at issue—is a relatively minor misdemeanour, one that is rarely prosecuted as a primary charge in a case. What raises it to the level of felony is if the falsification was intended to hide or facilitate a crime. In this case, it was hiding a sleazy but totally legal personal matter.
Getting someone to sign an NDA is not a crime, even if that someone is a porn star and the subject matter of the NDA is a tawdry extramarital fling. It’s unsavoury and distasteful to decent people, but it isn’t a crime unless the NDA itself is hiding or facilitating something that is a crime. Legally, she was free to tell her story. He was free to try to induce her to refrain from exercising that freedom by paying her a mutually agreed-upon sum. Yes, it’s icky. But consensual. And legal.
So, how DID they get the felonies? One theory the prosecutor used was that Cohen’s payment to Daniels on behalf of Trump was an undisclosed campaign contribution exceeding the amount allowed under the federal campaign finance law. But wait. Wasn’t Trump on trial for having reimbursed Cohen and recorded it falsely? So, if Cohen was reimbursed by Trump, how can his payment also be a contribution to Trump? But that was the theory.
Another theory was that the mischaracterised payments were attempts at tax fraud. But treating a reimbursement as additional income increased Cohen’s tax burden, money for which was also folded into the reimbursement (it’s not illegal to pay someone else’s taxes). Under this scheme, MORE taxes were paid by one party or another than if the scheme hadn’t been hatched. So the “tax fraud” theory seems puzzling, if not specious, though it is true that the income was falsely reported.
A third theory was that the NDA violated an obscure provision of the New York Election Law, which makes it a misdemeanour to “conspire to promote or prevent the election of any person to a public office by unlawful means.” This law is so rarely invoked as the basis of any criminal charge that calling it “obscure” is an understatement. It has NEVER been invoked as the underlying “other crime” to turn business record falsification from a misdemeanour into a felony. Even to convict someone of the misdemeanour described in this law requires yet ANOTHER source of unlawfulness. Attempting to influence an election by promoting your own candidature, for example, is not unlawful by itself, of course.
But that ultimate “unlawfulness” seems elusive here, unless we go back and find it in the prosecutor’s other two theories discussed above: tax fraud and federal campaign finance violations. But if those worked, why would you need to invoke this dusty, unused state law in the first place? I may be wrong, but it looks like too many bootstrapping arguments.
Also, the presiding judge reportedly instructed the jury that it was not necessary to agree on which of the prosecutor’s theories was applicable to the intended underlying crime required by the New York Election Law invoked here. Allowing this kind of uncertainty seems extraordinary, given the principle of criminal law, whereby the defendant is entitled to the benefit of every reasonable doubt.
Also, incidentally, there was a significant appearance of inappropriate bias at work here. The judge and prosecutor in the case are both known to politically oppose right-wing politics generally and/or Trump specifically. The prosecutor, when he was running for election to this position (District Attorney) in 2021, reportedly made it an oft-repeated campaign promise to prosecute Trump.
An appearance of bias doesn’t necessarily mean there is bias. Novel legal theories don’t necessarily mean unsound legal theories. But it might mean those things, and the people deserve more clarity and less political theatre.
Democrats are convinced that everything Trump does is not just wrong but evil, and he must be stopped by any means. Meanwhile, their relentless pursuit of him is seen by his followers as an elaborate witch hunt, and it has only deepened their fealty to him.
These hardline positions on both sides are deeply troubling because things really are NOT black and white. Some of the charges against Trump come with credible evidence that should be explored in good faith, while others are so flimsy that only the naïve can believe—and only the cynical can pretend—that the motives behind them are beyond suspicion.
The author is a lawyer, writer and editor based in Manhattan, New York.