Trump Must be Loving the Resurrection of the Stormy Daniels Case
Make no mistake about it. President Trump has a world of serious legal problems. Some more serious than others. The outcome for Trump depends on the outcomes of the individual cases as well as how they roll out. They could build on each other in a crescendo of damaging – career ending – verdicts. On the other hand, they could crash into each other in a way that could actually benefit Trump.
There is an African expression that if you pick up the tiger, you better be able to carry it to the cage. Getting Trump indicted may be a lot easier than getting him convicted. And if he is found not guilty, he becomes a more formidable political figure. It gives credibility to his claim of being a victim of political prosecution.
We already saw how the years of accusations alleging collusion between Trump and Russian meddling in the 2016 presidential campaign came to a crashing end when Special Counsel Robert Mueller – after a two-year $35 million investigation – determined that no American colluded with the Russians … period.
Most of the television legal experts – on both sides — believe the Stormy Daniels Case is among the weakest of the cases against Trump. Many believe it should not have been pursued. They also note that the Manhattan District Attorney’s Office as an abysmal 50 percent rate of convictions.
The problem with the Daniels Case is that it is going to be very difficult to secure a conviction if the case goes to trial. If there is a conviction, the odds are that it would be overturned in an appeal.
The Case is unprecedented for TWO reasons – and that is extremely important. The most obvious reason – and most publicized – is because Trump would be the first ex-President of the United States to be indicted, tried, and possibly convicted of a felony. Theoretically, he could get jail time – but that is very unlikely despite the fervent wish of those on the left.
The second reason that the Case is unprecedented is that New York Prosecutor Alvin Bragg is plowing novel legal ground based on unique legal theories.
Trump is being charged with altering corporate records to conceal a payment of $130,000 to Daniels to buy her silence about an affair that she alleges, and he denies, ever happened. From his perspective, he was paying off a nuisance suit. Yes, it is a lot of money, but he is a very rich guy. At least, that is his story.
It gets complicated. He made the payment through his attorney – which in and of itself is not unprecedented. Any attorney account can be used to settle cases. I know. I purchased the family home in a divorce through an attorney account.
However, Bragg argues that the payoff was made to prevent the alleged affair from becoming public during Trump’s presidential campaign – and argues that it was, therefore an illegal corporate campaign contribution. (Is Bragg really alleging that public knowledge of an affair would hurt Trump’s reputation? Come on, man. Who did not already know that Trump was a shameless womanizer?)
A civil infraction – like hiding the payment to Daniels in the corporate books – can be elevated to a criminal felony – the kind that can result in jail time – if the civil infraction was part of a larger felony – like falsifying campaign records.
But what if Trump was never indicted or convicted of falsifying campaign records? That issue was investigated by the Department of Justice years ago, and they determined that there was no cause to press charges. In other words, the felony to which Bragg wants to connect to the civil infraction was never adjudicated.
To examine another facet of this truly incredible case. Trump’s former lawyer, Michael Cohen, took a plea deal admitting to being a party to an illegal campaign contribution. The indictment of Cohen mentioned an “unindicted Co-Conspirator,” which is believed to be Trump. Why was Cohen indicted, convicted, and jailed, and the Co-Conspirator was not? That is where things get even more dicey.
Cohen did not go to jail exclusively – or even primarily — for the campaign finance violation. He went to jail for tax fraud and lying to investigators unrelated to his involvement with Trump. Prosecutors, however, would not give him a plea bargain (shortened sentence) unless he confessed to the campaign finance charge.
To get the plea deal, Cohen essentially confessed to a felony crime that he did not commit and would not likely have been charged with on its own. That campaign finance charge was never adjudicated independently – and most observers believe that the worst that would happen if Cohen was found guilty of breaking a campaign finance law would be a civil fine. When Cohen – and reporters – claim that he went to jail for the campaign finance issue, that is not exactly the truth. The longer sentence to be reduced was based on his personal tax case.
It is the most anti-Trump television lawyers who suggest that the case is weak – and that a conviction may not hold up on appeal. MSNBC’s Chris Hayes and his guests were very vocal in their displeasure that the Stormy Daniels Case would be the first out of the gate – or was even being pursued.
They worry that by leading off with this case – instead of the Georgia vote fraud Case … or the White House Documents Case … or the January 6th Case being investigated by Special Prosecutor Jack Smith – it will actually interfere with those more serious cases and make prosecution and conviction more difficult down the road.
More than any other case, the Stormy Daniels affair could give Trump’s claim of being a victim of political prosecution significant credibility. Given the time that has gone by and the hoops that Bragg is going through to get an indictment, the case does have the stench of politics over justice.
Soooo … what is likely to happen? Damned if I know. My suspicion is that this case will crash at some point. It is possible that the New York Grand Jury will not indict Trump – although most believe that is an extremely remote possibility. Bragg may not be able to link the Case to a real felony – in which case all Bragg has is a civil misdemeanor case with a fine as the only potential outcome. No criminal charges for Trump and no jail time.
I still believe that the case with the best chance of convicting Trump is the White House Documents Case – and unless that results in a charge and conviction of obstruction of justice, Trump will dodge a felony conviction and potential jail time in that one.
Although not given sufficient reporting in the media, the Georgia Vote Fraud Case is fraught with so many legal peculiarities associated with the Special Grand Jury that it may have to be tossed by the courts and started all over again. Trump attorneys are already pointing to violations of the grand jury process.
As far as the January 6th Case, I agree with a lot of the anti-Trump legal pundits who say that it is a big deal, but not easy to prove insurrection. And as far as that civil suit against Trump by writer E. Jean Carroll, who claims to have been raped by Trump in a department store 25 years ago, I think a conviction is unlikely, but if a court agrees with Carroll, it is a civil suit – fines and no felony conviction or jail time.
As amazing as it may seem, Trump could survive the gauntlet of court cases that are currently facing him. His chances of jail time are still extremely low. The real question is how much will these suits and prosecutions hurt Trump’s political ambitions – or help them? On that question, the jury is still out.
So, there ‘tis.