Politics Foreign Affairs Culture Fellows Program

Tempest in a Teapot

Trump’s supposedly pending indictment is hardly a sign of stormy seas ahead.


Convicting Donald Trump for some sort of crime connected to his alleged affair with porn star Stormy Daniels means taking the word of said porn star and a guy like Michael Cohen, serial liar and convicted felon, over the word of someone many people think also has the disposable morality of a porn star and the trustworthiness of a serial liar, Trump himself. That's likely going to be up to a Manhattan jury if the long-rumored indictment comes through.

For any of this to matter, Trump would have to be reconvicted in the court of public opinion, something that has largely already moved on. The rough details of Trump and Stormy's relationship (financial and otherwise, though Trump denies having an affair with Daniels) have long been chewed over by everyone from law reviews to late night comics. The only people who really think the walls are closing in, yet again, are in the cheap seats of blue-check Twitter.


Goodness help us, here's the rest of the raw material of this criminal caper. Trump may soon be indicted on some sort of campaign finance law violation. This means District Attorney Alvin Bragg, of the Manhattan District of the State of New York—federal prosecutors have long signed out of the cheesy political revenge fantasy business—has convinced a grand jury there is enough evidence to charge Trump with the crime.

A grand jury setting means Bragg faced little opposition in laying out his case, as the not-quite-a-defendant is not represented. So no cross examination, no motions to suppress evidence, no hammering away at Michael Cohen as perhaps the least credible witness of all time, and thankfully, no hoary Godfather references to it all in the media. The old joke is you can indict a ham sandwich if the DA is clever; if Trump is indicted, that motto holds true here.

So what happened is this: Stormy Daniels, a porn star whose very NSFW antics are all over the internet, likely had sex with a businessman. She then accepted money to sign a nondisclosure agreement (NDA) to keep silent. Sensing an opportunity when the businessman ran for president, she willfully violated the NDA to revive her career.

Meanwhile, when faced with jail time for all sorts of dirty deeds, the businessman's now disbarred lawyer and a felon himself, violated attorney-client privilege to claim that the NDA payoffs, although per se legal, were actually complex technical violations of campaign finance law. And, oh yeah, most of this naughtiness happened way back before Trump was even president. That's the basic case to bring down Citizen Trump in the ultimate act of political revenge. Fuhgettaboutit!

It will be interesting in a stop-and-stare-at-a-car-wreck kind of way to see how Bragg presents his case. Problem One is that paying money as part of an NDA is not illegal. Lawyers regularly obtain discreet resolutions of issues threatening the interests of their clients. (Here's a fill-in-the-blanks NDA.)


Without admitting guilt, money is paid from Party A to Party B in return for Party B dropping all future claims, agreeing to never mention something again, handing over documents or photos, whatever you'd like. It happens all the time, and in fact is the dirty little secret which keeps sexual harassment alive and well. Wealthy men pay women to remain silent under NDAs. It does not change the legality of all this even if the media calls those payments “hush money” or “payoffs” and Michael Cohen a "fixer."

Problem Two for Bragg: Any criminality must come from twisting a not uncommon occurrence into an uncommon violation of a campaign finance law. When Trump allegedly had sex in 2006, he was just another philanderer. However, a ten years later Trump became a philandering presidential candidate, and that money shifted, maybe, from a legal NDA payoff to something akin to a campaign contribution. The what in this case (money for silence) is clear. It is the why that matters most.

So Problem Three, and it is a big one, is intent. You have to intend to violate campaign finance laws, not make a mistake or just act like a sleaze. Illegality comes from the supposition by Michael Cohen that he can speak to Trump’s intent, that the NDA was not, say, to spare Trump’s marriage from new embarrassment, but “for the principal purpose of influencing an election” amid everyone already knowing Trump was a serial philanderer.

If the whole mess was primarily for the purpose of hiding Stormy from voters instead of hiding Stormy from Trump's wife and kids, then the money was essentially a campaign contribution and a whole new set of laws kick in. But "it should be clear," said the New York Law Journal, "Cohen’s plea, obtained under pressure and with the ultimate aim of developing a case against the president, cannot in and of itself establish whether Trump had the requisite mental state."

Thus Cohen’s testimony does not prove Trump knew the payments made to Stormy were illegal. Prosecutors would have to prove that willingness by Trump, as well as proving that his principal goal was to influence the election. If this ever reaches court, Trump will simply deny intent; no jury can say weighing one man's word against another, especially these knuckleheads, eliminates all reasonable doubt.

Felons testifying out of self interest make poor witnesses. Michael Cohen pleaded guilty to eight criminal offenses, including lying to Congress, tax fraud, and campaign finance violations. Cohen will face questions of personal bias, given his own multiple lawsuits against Trump. He will face questions about whether he received a benefit from prosecutors, early release from prison, for cooperating. If a liar like Cohen is your best witness on Trump's intent, you really have no witnesses.

There's a Problem Four. Prosecutors also have to connect Trump directly to the payment. The check for $35,000 that Michael Cohen displayed at his 2019 Congressional hearing from Trump to Cohen, which was supposedly one of eleven such check making up the $135,000 paid to Daniels, does not show what the payments were for. The checks do not have Stormy’s name on them. Cohen simply claimed they were part of his reimbursement for “illegal hush money I paid on his behalf.” The checks are not receipts; they could have been for anything. They do potentially expose Trump to another crime, falsifying business records, calling the money “legal expenses” to hide the payoff, a misdemeanor in New York.

But they are receipts for a crime only because Cohen says they are. Under direct questioning before Congress, Cohen claimed that, unfortunately, there was no corroborating evidence. He said he sent invoices to Trump only for “legal retainer fees,” so don’t bother with using them as evidence—Cohen now says he lied on them. The checks total over $400k, because supposedly Trump rolled Cohen’s fee and bonus into the amount, so we just have to take his word for it that some of that money was for Stormy. Cohen said some of the checks were signed by Don, Jr. and the Trump Organization’s felony-convicted tax cheat CFO, Allen Weisselberg. That means the checks could be used to implicate personally a person who did not sign them. If this all sounds complicated, it's because it is.

Problem Five: For Stormy’s payoff to be illegal, it will also be necessary to determine the money came from campaign funds. If it was Trump’s private money, even private money he donated to his own campaign, there is likely no case. Even if the money is shown to be campaign funds, illegality is based on the $2,000 donation limit imposed on the supposed “giver”—Michael Cohen in this case, who has already been convicted. The limit does not apply to the candidate himself. The payment is also not a donation if it was made for an expense that would have been paid even if there were no campaign, like hiding an affair from your wife.

A final question: so what? There is nothing to stop Trump from running for president if he is under indictment, or even found guilty and serving time. His alleged affair with Stormy, which may be offensive to some voters, has sadly been part of the public conversation around Trump for years. Anyone who has wanted to see Stormy in the buff has done the requisite searches. Trump is not former Democratic vice-presidential nominee John Edwards, who withdrew from the race. Edwards was accused of illegally arranging for two wealthy supporters to pay $925,000 to keep his pregnant mistress out of public view during the campaign. Trump is also not Hillary Clinton, whose funding of the Steele dossier was falsely declared a “legal expense.” (The Clinton campaign was fined over that false filing.)

This all is no knock-out blow for 2024. Trump’s spokesperson said in a statement, “The Manhattan District Attorney’s threat to indict President Trump is simply insane." You literally cannot embarrass Trump into quitting. His true supporters could care less about Stormy and overcriminalization. This is a DA struggling to twist state laws to press a federal case long ago rejected by the Department of Justice. The Dems are going to have to beat Trump another way.