There’s a better legal path to prosecuting the former president than the one being pursued by the Manhattan DA.
It’s unfortunate that of all the grave acts of criminality for which former president Donald Trump could potentially be indicted, it looks like the first one for which he’s going to face prosecution is easily the most trivial one: making a payment to porn star Stormy Daniels to buy her silence about an affair.
Seeking indictment of a former and possibly future president for a crime (something that has never happened in American history) is a very big deal that should not be undertaken lightly. Crossing that threshold with a relatively inconsequential charge seems foolish—especially when there are other options available.
The New York state case has nothing to do with Trump’s most egregious acts—his attempts to overturn the results of a free and fair election and keep himself in office despite losing that contest. Instead, it involves events prior to Trump’s elevation to the presidency in 2016—namely, his efforts to avoid the exposure of personally embarrassing facts that would humiliate his wife if they became public.
Paying hush money isn’t itself illegal, so the DA will need to charge Trump with violations of campaign finance law (treating the payoff as an unreported in-kind contribution to his own presidential campaign) or with misdemeanors or felonies involving improper business filings (connected to covering up the payment, which was made through Trump’s lawyer and personal fixer, Michael Cohen, who has already been convicted for related crimes). Manhattan District Attorney Alvin Bragg may even attempt to combine the two charges in a way that has never been attempted before.
Securing conviction for violations of campaign-finance law is often quite challenging, because it requires proving that the accused “knowingly and willfully” violated the law. It will almost certainly be difficult in this case if Bragg attempts to apply the law in a novel way. The effort could well end up generating sympathy for Trump, even among Americans who aren’t die-hard supporters. And then there’s the chance that we end up with the worst possible outcome: a Trump acquittal.
The old adage is true: If you’re going to come at the king, you best not miss. But it’s equally true that if you’re going to try and take down a former and possibly future senior elected official, you best do so over an alleged crime befitting the gravity of the act. Otherwise, the consequences could be disastrous.
Trump isn’t Al Capone, an underworld figure whose imprisonment by any means unambiguously serves the public good. His indictment has the potential to do real damage if the case against him isn’t maximally solid and based on indisputable evidence of egregious wrongdoing, because he will use the effort to throw him in jail as confirmation that the corrupt system and its defenders are out to get him and the voters who view him as their champion.
