The critical element in the Trump “hush money” trial, and the factor most likely to result in a reasonable doubt, is intent. What did Trump intend by paying Stormy (if indeed he did) to keep quiet about an affair (if indeed they had one)?

For a guilty verdict, the prosecution must prove Trump had an affair with Stormy Daniels, paid her to be quiet about that affair, that the principal purpose of the payment was to influence the outcome of the election, that the payment was made from campaign funds (itself illegal in the amounts paid and lack of disclosure), and that Trump falsified business records with the intent to characterize the payment not as hush money but as legal expenses. Believe it or not, that’s the actual charge here when all the dust is blown away: falsifying business records.

Before we get to the meat of the case—intent—a warm-up point. There is nothing illegal about paying out “hush money” per se. It is called a settlement, and lawyers negotiate them all the time for clients via non-disclosure agreements (NDAs). A person receives a sum of money to not speak about some event, usually as a way to avoid a lengthy and often embarrassing public trial. So the term “hush money” itself is a bit disingenuous.

As for the affair itself, the jury will need to weigh the statements of the only two people on earth who know the truth, Trump and Stormy. If there was nothing to “hush,” there is no case. The jury will also need to weigh whether money was paid to Stormy by Trump. The so-called receipts for the payments are checks signed by Michael Cohen, Don Jr., and the former (and convicted) Trump CFO, but not Trump. It is claimed that the checks were payments to keep Stormy quiet; this is denied by Trump. Cohen said he created fake invoices for legal services to cover up the money.

Further, the money must also have come from campaign funds to end up as being illegal; it cannot have been Trump’s personal money. (Campaign finance laws limit the amount of a personal donation and require disclosure for a candidate’s own money donated to the campaign.) Where did the money come from? Lastly, the prosecution must convince a jury that all of this—alleged events from up to nine years ago that would usually be charged as a misdemeanor—is actually worthy of a felony conviction. The prosecution must find a way, past the hoopla, to prove these points.

But even if the jury can be convinced of the above points—largely on personal claims by a disbarred lawyer and convicted felon and perjurer, Michael Cohen—the case hinges on what Trump’s intent was all along.

Trump may claim he need not discuss intent because there was no underlying affair to begin with. More likely, however, is that at some point he will state (in legalese) something along the lines of this: If some sort of affair took place and if he paid Stormy to be quiet about it, his purpose was only to spare his wife and son further embarrassment. He was simply a cheater.

Besides, with the infamous “Access Hollywood” tape already out there, how much influence could one more affair have on the campaign? Trump’s lawyer has already proposed another sweeping explanation in his opening statement to the court, saying, “There’s nothing wrong with trying to influence an election. It’s called democracy. They put something sinister on this idea as if it were a crime.” 

“You’ll learn it’s not,” he added.

So the problem is—and it is a big one—proving intent. You have to intend to violate campaign finance laws; it’s not just a matter of making a mistake or even just acting like a sleaze. Any illegality comes from the assertion by Michael Cohen about 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 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 new set of laws kick in.

“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.”

The prosecution has already begun setting the stage for the jury as to Trump's intent with its first witness, the National Enquirer’s former publisher, David Pecker. Pecker testified at a meeting he and Trump (and Cohen) discussed how they might “catch and kill” negative stories during the campaign. If someone seemed ready to come forth with something that might hurt Trump, Pecker could “buy” the story from that person with the intent to simply hold on to it and never actually publish anything. That, the prosecution claims in what some lawyers call “storytelling,” will show Trump already had hiding stuff on his mind and worked out a mechanism to hush up a negative story. 

But if that all is so, why wasn’t the same mechanism—the Enquirer route of checkbook journalism—used with Stormy? The jury will need to decide. (FYI, prosecutors gave Pecker and another Enquirer executive immunity from prosecution so that they remain unindicted co-conspirators acting as witnesses.)

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What you are likely to hear in the media, and from the prosecution, is that this trial is really about something much bigger than false business records. It is about Trump trying to steal the election, something they’ll claim has plenty of proof of intent behind it (see January 6.)

Never mind all the technicalities of campaign finance law and all the salacious details provided by ex-con disbarred lawyers and porn stars, the argument goes. This is about something we all know to be true, election fraud, the desire by Trump to win at any cost. He was afraid of what effect Stormy might have. He laid out plans with the Enquirer, used with another alleged extra-marital girlfriend, Karen McDougal, to kill bad news. He directed Michael Cohen to pay off Stormy. He had records altered with an intent to conceal the real crime. He created a criminal conspiracy to help manipulate the election. He is guilty of something.

At this early point, we’re already left with the question that nags everything to do with Trump: so what? It has long been established that Trump’s slimy personal life matters little to voters. Trump himself has done a masterful job of setting the stage for all of his trials, labeling them in bulk election interference and an attempt to use “lawfare” to prevent him from even campaigning for the presidency. The “so what” question here is, So what if Trump is found guilty? In whatever form this all shakes out, guilty or not, will it matter on the one day it matters, Election Day 2024?