A Modest Case for the Case Against Trump

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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