A Modest Case for the Case Against Trump

The indictment might not be strong, exactly, but neither is it as weak as many have argued.

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Former President Donald Trump arrives to his hearing in Manhattan on April 4, 2023. (Photo by Ed Jones/AFP/Getty Images)

The merits of prosecuting Donald Trump for hush-money payments to Stormy Daniels were debated even before the indictment came down, and that debate certainly hasn’t cooled since Trump appeared in court Tuesday. The most illuminating document, though, is not the indictment itself but the statement of facts in support of the indictment. That statement of facts describes a case that, depending on the quality of the evidence offered to support it, may be stronger than many critics think.

While the Daniels payment has been discussed to death, the statement of facts also contains discussions concerning other payoffs that have received much less recent attention—such as the Karen McDougal payoff, which I predicted would be part of this case. The charges themselves still relate only to the Stormy Daniels payoff, because that is the only payoff that was reimbursed by Trump and the Trump Organization. But Manhattan District Attorney Alvin Bragg intends to present evidence of the other payoffs to establish a conspiracy on the part of Trump and other individuals to kill negative stories about him with payoffs that allegedly violated federal campaign finance laws.

Although the statement of facts doesn’t contain much that’s new or unexpected, some of its details confirm suspicions many of us have had for years—details that arguably support a contrarian case for the strength of the indictment. In my judgment, the indictment is not necessarily strong, but it is also perhaps not as weak as this week’s conventional wisdom would suggest. The statement of facts raises the possibility that several witnesses besides Cohen would be able to corroborate details of the scheme to kill stories about Trump, which provides critical context for Trump’s motives to falsify documents. The statement also refers to communications, including text messages, phone records, and at least one recording, all of which may corroborate Bragg’s case. And there is reason to question many of the arguments you have heard against the indictment, such as the contention that the statute of limitations bars these charges, or the argument that a state prosecutor cannot rely on federally proscribed conduct to elevate a state charge to a felony.

I’m a lawyer, so I’ll start with a lawyerly caveat: I’m a prosecutor, but I’m not a New York prosecutor. I don’t pretend to know the ins and outs of New York criminal procedure. Consider me a color commentator and nothing more.

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  1. Wsampson

    Bulwark had a good column connecting the cases and overall theme: affecting election results. Which will most likely come to play in the other crimes as well. We know if Trump accuses you of doing something, he has already done it. So, a rigged election claim comes about because Trump and his team and the Republicans have already been rigging elections. And they won't stop until they are held accountable.

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    Wj

    I want to believe

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  3. Kelly Windsor

    Reading this was so good I went and read the Substack article you linked, and now I’m a subscriber.
    Awesome.

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      Patterico

      Thank you! It’s very nice of you to take the time to pass along such kind words. I hope you enjoy the Substack!

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  4. Jameslbussey

    Thanks for a level headed other-side-ism. Love the Dispatch for that reason, rock on

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      Patterico

      It’s the best site on these here Interwebz. I am a lifetime subscriber. Thanks for the comment.

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  5. Mary Stine

    This is the best, most honest and fairest report I've read on this yet.
    Thank you Patrick Frey!!
    Some of Trump's chickens have come home to roost. We just don't know how many (if any) eggs will be laid yet. But we can't deny that these are Trump chickens!
    I fear we are all so used to Trump breaking norms and laws and weaseling out of any responsibility that even lawyers have lost sight of the courthouse and are instead examining the weeds outside with a microscope.
    It 's refreshing to read something other than weed interpretation.

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  6. Russell J

    I’m more in the Advisory Opinions camp on this one. Good points about the potential for Trump employees cooperating more though and I’m not buying that any wife’s opinion was worth thousands for Trump. Great to see more bloggers at TD. Patrick has channeled some of my frustrations since the days when I browsed RedState.

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  7. Jeff Smith

    The issue with this indictment is that it’s not clear what the actual crime is. He falsified accounting records, so what? The Trump Organization is a private business and the falsification shouldn’t matter unless it harmed someone. This charge is typically brought when there’s some type of fraud (insurance fraud, tax fraud, workers benefits fraud, etc.) which doesn’t seem to be the case here.

    The article mentions campaign finance laws, but if Trump used his own money (i.e., not donor money), then what’s the problem? Candidates are allowed to spend their own money on their election campaigns. Bragg's statement of facts isn't helpful because it doesn't explicitly state why the "catch and kill scheme" is a crime.
    Even if there is a crime, I still don't understand how the falsified business records concealed it. Who's reading Trump's accounting records?

    An indictment of a president will inevitably result in 90% of the public viewing the case with a political lens. Public confidence in the justice system will erode if the prosecution cannot explain in clear and simple terms what the actual crime is. That's why I don't think a president should be charged unless there's a strong case with a >90% probability of success.

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      Kizedek

      Yes, in this case, he used “his own money”, and I see what Sarah Isgur is saying: what’s the problem if he used his own money, because *he can’t use campaign funds*?

      I think the contention would be that *he considered it a campaign expense*, and categorized it as an expense in his business finances at all. Therefore, tax fraud does come into it. Trump seems to expense everything, including dubious or even criminal activity. Such as paying Ivanka a huge consulting fee *in addition to a salary*. That’s how he ends up paying zero in taxes a number of years, and exactly 750 dollars two different years. In fact, the fact that he does expense “everything” might just be his undoing. It’s already clear that his tax records show little if anything in the way of receipts and other justifications that are required of mere mortals.

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      Pat Riot

      Campaigns are required to disclose their donations and sources of funding, regardless of their origin, including when candidates self-fund.

      Bragg and his office have not yet presented their case, which is quite typical for any sort of criminal case at this stage. The public may need to wait (gasp!) more than a few days for all of the facts of the case to be disclosed. The next hearing in this trial is scheduled for six months from now so this process doesn't move at Twitter speed--and again, this is absolutely normal for a criminal case of any kind.

      Presumably the ones who brought this case believe there is a >90% probability of success...

      Americans aren't used to a president being brought on criminal charges. It's a new experience. It would appear that they will all be experts by the time the US criminal justice system is done with Trump...

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  8. Rune485

    Thank you, Patrick. This is the first article I’ve bothered to read concerning Bragg’s case specifically since the indictment came down, yet somehow I’ve still absorbed all the criticisms.

    I appreciate the time you took to address them, and explain where and why you think they may fall short.

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      Patterico

      Thanks for taking the time to write your comment and for the kind words.

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    Magpie

    Thank you for this explainer! Very useful and encouraging.

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  10. Mkcannady

    You touched on the issue of whether the prosecution is solely politically motivated. At first, that idea made me uncomfortable. Now I feel ready to hold politicians to a higher moral standard. If you want to run for office, live a life that doesn’t need to be covered up. Trump lived and worked in a community of people who know him and now want to see him pay for past transgressions. Ideally, every white collar criminal would be identified and prosecuted. I hope we will see more cases brought against other businesses that operate like the Trump organization. In the meantime, DJT chose to strut into the spotlight and thumb his nose at the concept of integrity so I am ok with the idea that he has been singled out for his decision to run for reelection. In his 4 years as President, he had a chance to prove he truly wanted to serve. Instead, he spent his time letting his minions fail to run the country while he did nothing but fan the flames of tribal partisanship that are destroying this country.

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