As I have written here before, much of the presidential election of 2024 will not take place on the campaign trail, but in courtrooms. This will be particularly true over the next few weeks, as the first criminal trial of Donald Trump plays out in New York City. And the first question that arises about it is the following: Is Manhattan Attorney General Alvin Bragg out to “get” Trump, prosecuting him for offenses he might have treated more leniently in the case of a less notorious defendant? The answer is: yes, of course, but for entirely appropriate reasons. The case is solid, and Trump deserves to be convicted and sentenced to jail. First, though, a bit of deep background.
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As the 1988 presidential election approached, Gary Hart looked like the frontrunner for the Democratic nomination. A handsome two-term senator from Colorado who had run a close second to Walter Mondale in 1984 and a moderate known for his policy expertise, he had an early lead in polling and fund-raising. But rumors about extramarital affairs dogged him, and on May 3, 1987, the Miami Herald published a story about an assignation between him and a former beauty queen on a luxury yacht named, appropriately enough, Monkey Business. Soon afterwards, the National Enquirer published a photo of Hart, clad in a “Monkey Business Crew” t-shirt, with the woman in question on his lap. That month, he suspended his campaign.
How quaint this all now seems. Donald Trump is an adjudicated rapist (in civil court), a sexual predator who openly boasted of his behavior in the infamous Access Hollywood tape made public in October 2016, and a serial adulterer. He cheated on his first wife with a former beauty queen named Marla Maples, and then persuaded her to tell The New York Post that it was “the best sex I’ve ever had.” In 2006, soon after his third wife Melania had given birth to their son Barron, he had another affair, with a pornographic film actress named Stormy Daniels. This tawdry record is clearly attested, and the rape charge aside, Trump barely bothers even trying to refute it.
The trial in New York City concerns actions related to the affair with Daniels. In the last days of the 2016 presidential campaign, after the release of the Access Hollywood tape had caused a furor, the actress tried to sell her story to The National Enquirer. Trump persuaded the magazine not to publish, and then paid Daniels herself $130,000 to stay quiet. In order to bury the affair even deeper, he arranged for his long-time fixer, attorney Michael Cohen, to pay Daniels the money personally. He then reimbursed Cohen, recording the expense as a remittance for legal services. In doing this, he falsified business records—a crime in New York State. And since he committed the crime for the purposes of winning an election, he also violated election law, making the initial offense a felony (normally, it is only a misdemeanor). Again, the record seems very clear on these matters.
When Alvin Bragg convinced a grand jury to indict Trump on these charges last spring, many legal experts scoffed. The crime was a minor one, they said, and the reasoning behind raising it to felony status especially thin. Why go after Trump for these matters, they asked, when the much more serious charges of conspiring to overturn election results, both federally and in Georgia, and flagrantly mishandling classified national security documents despite repeated warnings, were pending? But these other three criminal cases remain mired in delays and obfuscation. The federal judge in the documents case, Aileen Cannon, who Trump appointed, is transparently doing everything she can to help him. The Supreme Court, with its conservative majority, decided to hear at the latest possible date Trump’s claim that he enjoys immunity for any and all actions as President, with a decision unlikely before late June, thereby postponing the other election interference cases. The best—perhaps the only—chance for a Trump conviction before the November election comes in New York.
So would Alvin Bragg have filed this sort of case against a less notorious defendant? Trump himself has of course said no, again and again, in overheated speech after speech and overheated post after post to his Truth Social network. “Tomorrow morning,” he wrote with typical restraint on Sunday, “I’ll be in Criminal Court, before a totally conflicted Judge, a Corrupt Prosecutor, a Legal System in CHAOS, a state being overrun by violent crime and corruption, and Crooked Joe Biden’s henchmen ‘Rigging the System’ against his Political Opponent, ME!”
In one sense, Trump has a point. Of course Alvin Bragg has targeted him. But, contrary to what Trump has so loudly insisted, Bragg has not, in fact, targeted him for political reasons. The factor that raised the charge from a misdemeanor to a felony is that Trump falsified business records in order to deceive the American electorate, so as to win a presidential election. Not only does this factor make the case different from run-of-the-mill business records cases, it also, crucially, fits a pattern. Trump has tried repeatedly to interfere illicitly in the conduct of American elections, most notoriously in trying to disrupt the vote counts in 2020, and in urging his supporters to storm the US Capitol on January 6, 2021. These cases are more serious than Bragg’s, but, despite what the legal experts initially said, they are also weaker. Did Trump’s request to the Georgia Secretary of State to “find” 11,780 votes amount to election interference, or was it simply a request to seek out votes that the state had mistakenly failed to count? Was the call to march on the Capitol an incitement to insurrectionary violence, or just a suggestion to protest? And can prosecutors in these cases prove Trump sincerely believed he lost the election, thereby establishing criminal intent? It’s not, in fact, entirely clear. But the charges in New York City, while less serious, are established both by documentary evidence, and by testimony from Cohen and Daniels.
Prosecutorial discretion exists for a reason. In the Enlightenment, the great legal thinker Cesare Beccaria argued that prosecutors and judges should behave like rigid automata, rigidly applying the letter of the law to each and every case. But in the real world, this approach does not work. Not every case of flagrant illegality can be proven in a court of law. Just as prosecutors were justified for ultimately going after gang boss Al Capone for the minor offense of tax evasion, so Bragg is justified for using the business records charge against Donald Trump.
Of course, the fact that Trump seems so clearly guilty of the New York charge does not mean that a jury will convict him. According to press reports, Trump’s attorneys will focus jury selection on trying to identify one or two jurors who will hold out for an acquittal, forcing a mistrial, and this may well happen. Even in the case of a conviction, Judge Juan Merchan may hesitate to sentence a first-time offender to prison. And even if sentenced to prison, Trump can force many more delays as he appeals the decision (he cannot, however, if re-elected, pardon himself—he would only have that authority over federal, not state cases). Nor is it clear that a conviction will hurt his chances with the electorate. The charges are complicated, and it has been all too easy for Trump to cast himself as the victim of yet another political “witch hunt.”
But the prosecution should not pay attention to these things. Donald Trump broke the law in such a way as to interfere with a presidential election, and for that, he deserves to be prosecuted and convicted. Meanwhile, whatever propaganda value Trump derives from the proceedings, it will also focus attention back on his extraordinarily sordid and immoral private conduct over many years. Less sordid records, as already noted, have sunk the presidential hopes of much better men.