The Trump ‘hush money’ case could jeopardize other charges
According to Donald Trump, he is about to be arrested in connection with the hush money paid to Stormy Daniels seven years ago in the run-up to the 2016 election. Admittedly the weakest case against Trump, it raises serious questions whether it should be brought in the first place, especially since the Southern District of New York that charged and convicted Trump’s fixer Michael Cohen on related charges declined to charge Trump.
Manhattan District Attorney Alvin Bragg’s office nonetheless is reportedly about to charge Trump with a host of alleged crimes under New York law relating to the payments. These include not only allegedly falsifying business records, but also untested charges that would extend what at best would be a misdemeanor into a felony by charging that the acts were done to conceal a violation of federal election laws. There is no other prosecution like this.
Federal election law violations are rarely criminally charged. The last case was against John Edwards, the vice presidential candidate running with John Kerry in 2000. Prosecuted by the Justice Department’s Public Integrity Division, ironically then headed by the current special counsel, Jack Smith, it resulted in an acquittal on one count and a hung jury on another. It was subsequently dismissed. Violations of federal election law are generally mostly resolved with fines.
But aside from all the various technical defenses Trump and his lawyers are likely to raise, there are two potential lines of defense that have not gotten much, if any, coverage, but which could have a great deal of merit and alter the outcome. Remember, Stormy Daniels is a stripper and porn star. Her claims she had an affair with Trump,
which he denies, could arguably be characterized as extortion. The alleged “hush money” could then be credibly argued to have been extorted from Trump.
Let us not forget the notorious Michael Avenatti, who came to represent Daniels. Until he totally lost his credibility by virtue of his multiple convictions for stealing Daniels’ money and extorting Nike, he was the darling of CNN and MSNBS, and given wide coverage as well as undeserved credibility. His strident accusations against Trump on her behalf could be seen as a continuation of the original extortion. It is not uncommon for extortionists, once paid by their victims, to repeatedly go back again and again to extort them over and over.
So it could prove to be a powerful and persuasive defense for Trump to argue that any falsification of his business records was his understandable reaction to being the victim of extortion.
Who would contradict that defense? The principal witnesses against Trump lack credibility and can fairly easily be attacked if not destroyed on cross-examination: Stormy Daniels, a porn star and stripper whose
life is in many ways just a made up story. It would also be hard to say much that is positive about Michael Cohen, a convicted felon and a proven liar. Neither are sympathetic characters, but the case would rely heavily on their testimony.
Does an unprecedented prosecution of a former president of the United States, by a local prosecutor who has come under severe criticism for his lenient treatment of escalating street crime, for what at best would have been at most a misdemeanor, really make sense?
Does it really any make sense, as the first out-ofthe-gate cases against Trump, when there appear to be far more serious charges that are about to be brought? Does this silly case in fact undermine the viability and credibility of the more substantial charges Trump is facing?
Federally, Trump is likely to be prosecuted by Special Counsel Jack Smith for fomenting and conspiring to interfere with the transfer of power following a close election. In Georgia he is likely to be indicted for seeking to illegally interfere in the election in that state. And let’s not forget probably the easiest case of all, Trump retaining highly
confidential and classified documents and obstructing an investigation of whether he illegally retained them?
One has to also wonder as well whether in bringing an unprecedented but weak case against a former president, which would also be vulnerable to a legitimate defense of selective prosecution, Trump’s likely acquittal would lead to his reelection by energizing his base and others. It would be very dangerous to our country, further dividing it.
And being the grifter he is, what an amazing opportunity for Trump to raise money, continuing to divide the country, on the basis of grievance and that he is the victim. Most worrisome is that it would risk undermining the foundation to hold Trump accountable.
Longtime Greenwich resident James Schreiber, a former federal prosecutor in the Southern District of New York who prosecuted organized crime families and a Watergate related case, is the chairman emeritus of the Washington Institute for New East Policy, a nonpartisan Washington, D.C., based think tank on the Middle East. His opinion is his personal opinion and not that of the Institute.