Nothing to See Here
Media conniptions notwithstanding, the Trump indictment is a boring story.
If you have access to media of any kind, or speak to other human beings, you have heard by now that the Manhattan district attorney’s office has indicted Donald Trump. While the actual indictment document remains sealed for the time being, a few basic facts are publicly available. The charges stem from a 2016 incident dramatically referred to as Trump’s “scheme to pay hush money” to a porn actress over an alleged affair. From a lawyer’s perspective, what we know so far and what we are likely to discover when the indictment is unsealed is no bombshell. It’s not even very interesting.
The facts are still somewhat obscure, but the gist is that Trump was accused of having an affair with a porn actress known as Stormy Daniels. A deal was reached where money was to be paid to this woman in exchange for her silence about the alleged affair. For reasons we will get to shortly, this ordinarily would not be news, nor a crime, nor anything worth writing about. But apparently the payments were made through Michael Cohen, Trump’s lawyer, via a shell company. A Trump organization reimbursed Cohen for “legal expenses.”
The Manhattan D.A. Alvin Bragg appears to be pursuing business fraud charges over the manner in which the payments were made. But that is only a misdemeanor. The D.A. (who has seemingly made it a priority to downgrade criminal felonies in New York City to misdemeanors) is intent on charging Trump with a felony, by trying to tie the business fraud charge to a campaign finance violation.
If this seems convoluted, it is. To get a felony charge, Bragg will essentially have to prove that Trump falsified business records with the intent to commit a crime, in this case the campaign finance violation of aiding his campaign by paying to cover up the affair. Again, the indictment is not public, so we have not yet seen the extent of the charges or the evidence presented to the grand jury. But let’s step back, because we are missing the fact that, even if the worst version of this unlikely tale is true, it is rather unimportant and legally quite boring.
Let us first dispense with the supposed political implications. Criminal charges cannot disqualify Trump from being elected president in 2024. Yes, under Article II of the Constitution, a president can be impeached for treason, bribery, or other high crimes and misdemeanors. But impeachment is a post-hoc process applied against a sitting president, not a disqualification from office. The Constitution provides three, and only three, qualifications for someone to be sworn in as president: The person must be a natural born citizen, at least 35 years old, and at least 14 years a resident of the United States. That is it. Trump is a natural born citizen, well over 35 years old, and a life-long U.S. resident. He remains qualified to be president if he is indicted and convicted of these offenses, or even if he is standing trial or sitting in jail on election night.
It should be mentioned in passing that early poll numbers suggest that this indictment will only increase Trump’s popularity among primary voters. It is too early to discuss the potential political ramifications of a misdemeanor business fraud charge for a presidential candidate, but it doesn’t seem likely that this episode will be the demise of the Teflon Don.
Back to the realities of the legal situation. As a recovering private practice attorney who spent a couple years in civil litigation, it is worth explaining some basic concepts to those following the Trump situation. Wealthy people get sued. A lot. While the legitimacy and frequency obviously vary with the facts and circumstances, this is a well-known reality. And most civil disputes do not go to trial: In fact, in recent years the percentage of civil litigation matters that are resolved before trial (by settlement or a pre-trial disposition of some kind) is generally well over 90 percent. There is a reason for this. Lawsuits are expensive, and they often involve airing unpleasant dirty laundry in public. Therefore, it is quite common to settle a lawsuit without going to court.
When a civil settlement occurs, the settlement agreement will involve a payment, and will almost always include some kind of non-disclosure agreement. One party agrees to take a certain amount of money, and in exchange agrees to drop his lawsuit and not to speak publicly about the incident or the terms of the settlement. Frequently, a civil defendant will pay for a settlement even if he maintains that the accusations are false, because it is cheaper and less stressful to pay a settlement in exchange for silence and an end to litigation. Call it “hush money” if you like, but this is not a dark exchange reserved for mobsters. This is how civil lawsuits are settled.
Get weekly emails in your inbox
So while I hate to disappoint those looking for the next big piece of drama in the endless quest to take down Trump, this indictment is not a bombshell. It is not the big scandal that will finally sink him. This is actually quite boring. We have known about the alleged Stormy Daniels affair for years, so that part is not news. This indictment will tell us nothing that makes it more likely that the affair actually occurred, or that Trump engaged in some insidious criminal activity. It tells us only that Trump was sued, that he decided it was better to make a payment and settle the case quietly, and that perhaps the manner in which the settlement money was delivered was not quite by the books. But even that is unlikely to reveal anything exciting.
Trump could have any number of reasons for wanting to settle a civil lawsuit. Perhaps he wanted to save his family the embarrassment and hassle of a public trial. Perhaps he was busy with a presidential campaign and just wanted this out of his life. Whatever his motive, Trump is rich. He could afford this six-figure payment. If there was an attempt to cover up the nature of this payment through lawyers and shell corporations, it was likely not because he was intending to violate campaign finance law. Trump was a very public figure who was legitimately trying to keep the settlement private; is it surprising that he might fear that, if he wrote a settlement check in his own name, nosy political operatives and journalists might dig it up? When we think of campaign finance law violations, we think fraud, theft of political funds for personal use, bribery. This is not that.
There is just no way around the fact that this is not a compelling story. This is simply not important. Activist Democrat politicians and the corporate media could really occupy us with something much more interesting than a story about a rich, public political figure settling a civil lawsuit. But they can’t help it, because the subject is Trump. This is dull, run of the mill legal procedure. No matter what the indictment and possible show trial might reveal, there is really nothing to see here.