Prosecutors say Trump’s hush money was ‘election interference.’ Will jurors — and voters — believe it?

  • Oops!
    Something went wrong.
    Please try again later.
  • Oops!
    Something went wrong.
    Please try again later.

When prosecutors deliver opening statements Monday in the trial of former President Donald Trump, one of their critical goals will be to convince jurors that the charges are as serious as they are salacious.

It may be a challenge in a case prominently featuring a porn star, a Playboy playmate, the National Enquirer and allegations of about $300,000 in hush money paid in 2016 to keep a lid on allegations of extramarital affairs by Trump.

But Manhattan District Attorney Alvin Bragg and his surrogates have insisted that, beneath the sordid details on the surface, the felony charges are really about election interference. Trump, meanwhile, has claimed that the case itself is election interference of a different kind.

It’s not yet clear how jurors — or Americans voters — will see it.

No matter what, the trial is indisputably historic. No sitting president or former president has ever faced criminal charges before. Nor has any serious presidential candidate faced prosecution in the middle of a campaign.

But the prosecution also bears the burden of being seen as the least weighty of the four criminal cases Trump faces.

Bragg was once decidedly unenthusiastic about charging Trump at all. And when Bragg finally did so, he signaled no particular eagerness to have his case go to trial before the other criminal cases.

“Broader justice may warrant another case going first,” Bragg said in a January interview with NY1.

However, relentless delay tactics by Trump’s attorneys across the range of Trump prosecutions have left Bragg’s case — in which Trump is charged with 34 counts of falsifying business records — at the head of the pack. Meanwhile, the press of the campaign calendar and a lackadaisical approach by some courts have left serious doubts about whether any of the remaining three cases will get to trial before the election — or at all.

That has prompted Bragg’s supporters to intensify a drive to recast public perceptions of the case. Despite its tabloid roots in a “catch and kill” scheme aimed at suppressing the stories of Stormy Daniels and Karen McDougal, Bragg’s defenders have described the scheme as a bid to win the White House in 2016 by fraudulently concealing information from voters.

In this framing, the hush money scheme was a precursor to Trump’s bid to hang on to power by illegitimate means four years later.

“It is an election interference gateway drug,” said Norm Eisen, a former Obama White House ethics lawyer who served as a special counsel to the House Judiciary Committee during the first impeachment of Trump. Eisen is at the forefront of the effort to rebrand the New York case and released a book earlier this month titled, “Trying Trump: A Guide to His First Election Interference Criminal Trial.”

“Trump’s lawyers and Bragg’s team are going to be having an argument about: Was this a serious case of campaign corruption and cover-up?” Eisen said. “Was this a scheme to interfere with an election? … Or is it a case about an affair, a few wrong words on the books and making a mountain out of a molehill?”

‘A jujitsu move’

The public relations effort has found some traction: MSNBC, for instance, has used “election interference” as a catchphrase for what the charges allege. Much of the media, though, continues to refer to it as the “hush money” case.

Some skeptics say the recharacterization is a transparent effort to dress up fairly obscure criminal charges into something that sounds more ominous.

“It's a little bit of a jujitsu move to characterize the whole case as about election interference. … Hush money itself, the catch-and-kill scheme, is not illegal,” former federal prosecutor Randall Eliason said. “The question in my mind is how do these charges amount to election interference? The hush money itself did, but that’s not the crime.”

Instead, the alleged crimes Trump has been charged with are nearly three dozen instances of false entries in his company’s records to disguise reimbursements linked to the hush money. Prosecutors say he falsely recorded them as legal expenses.

UCLA law professor and voting rights advocate Rick Hasen noted that the charges amount to felonies only if prosecutors can prove the mislabeling of the payments was intended to cover-up another crime — in this instance, a violation of either campaign finance laws or tax laws.

“Any voters who look beneath the surface are sure to be underwhelmed,” Hasen wrote in the Los Angeles Times on the eve of Trump’s trial. “Calling it election interference actually cheapens the term and undermines the deadly serious charges in the real election interference cases.”

“If they don’t get to the felony … then they’re basically left with a misdemeanor. And everyone will just yawn and move on,” veteran GOP campaign finance attorney Jan Baran said.

Bragg and his supporters must also grapple with a separate PR challenge: Trump, too, has branded the case as an “election interference” case — but by that, he means a bid by an elected Democratic prosecutor to hamper his 2024 campaign.

In court, the judge has resoundingly rejected Trump’s arguments that the charges are impermissibly tainted by politics. But Trump has made it a refrain in his public remarks about the case.

Could talk of sex and infidelity sink the case?

One risk for Bragg is that the tawdry aspects of the case will eclipse arguments about both the alleged criminality itself and the broader right of voters to evaluate presidential candidates without unlawful scheming to obscure their history.

Similar battles in recent decades raise doubts about whether a story that enters the public consciousness as a politically charged sex scandal can ever be transformed into something more grave.

When President Bill Clinton’s sexual relationship with White House intern Monica Lewinsky burst into the headlines in 1998, it appeared for a time that the allegations could paralyze his presidency and perhaps even force his resignation. However, as the investigation dragged on, that sentiment eventually gave way to a perception that Clinton was being hounded by prosecutors and political enemies over what amounted to a sexual peccadillo.

Republicans impeached Clinton over those events, arguing that his denials about the affair under oath during a court-ordered deposition amounted to a serious breach of his oath of office. But the public didn’t buy it, with many suggesting the subject matter too trivial to justify undertaking the second-ever impeachment of a president in U.S. history. Polls showed that even voters unsympathetic to Clinton viewed the case as a persecution that actually built support for him and hurt the GOP.

“H.L. Mencken said one time, ‘When you hear somebody say, “This is not about money,” it's about money,’” former Sen. Dale Bumpers (D-Ark.) declared in a memorable defense of Clinton on the Senate floor in 1999. “And when you hear somebody say, ‘This is not about sex,’ it's about sex.”

Eisen acknowledged that dynamic could undercut Bragg’s case.

“Is the jury going to go back and say: ‘We just spent six weeks because he wrote “legal fees” instead of “hush money repayment” on a check?’” Eisen said. “That’s where the challenge I think is going to be — of really needing to seize the jury’s imagination.”

A cautionary tale: John Edwards’ trial

Another illustration of the challenge — and one that hews even more closely to the facts in the Trump case — came in 2012 when former Sen. John Edwards (D-N.C.) went on trial on charges that he violated campaign finance laws while seeking to cover up an extramarital affair with videographer Rielle Hunter during his 2008 presidential campaign and while his wife was battling a deadly recurrence of breast cancer.

Evidence showed two of Edwards’ wealthy political backers paid a total of nearly $1 million to cover living, travel and medical expenses for Hunter and a child conceived during the affair.

Prosecutors contended Edwards was aware of the payments and they amounted to unreported and illegally large campaign donations because hiding Hunter and her pregnancy was intended to preserve Edwards’ viability in the 2008 campaign. Edwards’ high-powered defense said the affair was a moral transgression, not a legal one, that he had no knowledge of the payments and that they were intended to shield his dying wife from the affair, not to aid his ultimately unsuccessful bid for the Democratic presidential nomination.

The case, presented in a federal courthouse in Greensboro, North Carolina, over six weeks, flummoxed the jury. It deliberated for nine days, before acquitting the former Democratic rising star and 2000 Democratic vice presidential nominee on one count and hanging on five others.

Press reports said two-thirds or more of the jury favored acquitting him on the hung counts. And at least one juror said she considered the trial to have been a waste of money even though she thought Edwards was guilty on at least some charges. About two weeks later, the Justice Department announced it would not retry the case.

Former Federal Election Commissioner Bradley Smith said he sees numerous similarities between the prosecution against Trump and that against Edwards. “There are a lot of parallels,” said Smith, now a law professor at Capital University in Columbus, Ohio.

One key ambiguity in both cases is how the law treats payments of a personal nature that are likely to benefit a campaign. The FEC generally bars the use of campaign funds for such expenses and said they are not required to be reported on campaign finance reports. However, federal prosecutors have argued that they must be reported and that the FEC’s views on the issue aren’t legally relevant in a criminal case. Bragg’s team is expected to endorse that stance.

“There are a lot of things subjectively that a candidate might want to do that don’t count as a campaign expenditure,” said Smith, who is a Republican.

“You can’t go out and buy a new wardrobe. You can’t go have plastic surgery or teeth whitening or anything like that” and charge it to your campaign, he said. “If a candidate decides to pay a lawyer to spend some money to seal his divorce records, because he doesn't want them being exposed when he’s running, that's a personal expense.”

However, backers of Bragg’s case say the evidence that Trump’s payments were intended to benefit his campaign is very strong, even overwhelming. They cite the timing of the payments, some of which took place just days before the 2016 election. Trump’s former lawyer, Michael Cohen, is expected to testify that Trump asked if he could delay until after the election so he wouldn’t have to pay Daniels at all.

“If the jury credits that, it establishes an ironclad connection to the election that was lacking in the Edwards case,” Eisen said.

Cohen has some obvious weaknesses as a witness, including his admissions to lying about the hush money payments and his guilty pleas to a slew of other offenses, but Eisen said he thinks jurors will find the disbarred attorney to be credible.

Smith countered that the FEC typically uses an objective test that focuses on the nature of the expense, not what those involved may have thought or intended.

Ignorance of the law may be a Trump defense

Another potentially pivotal legal question that appears to remain up in the air as the trial gets underway is precisely what prosecutors need to prove about Trump’s mindset at the time of the payments. When federal prosecutors bring a criminal campaign finance case, they must not only prove that the contribution was illegal or illegally omitted from disclosure reports, but that the defendant knew about those requirements and willfully evaded them.

“People say, ‘What? Ignorance of the law is no excuse.’ Well, it is — when it comes to campaign finance,” Eliason said.

That means prosecutors usually need evidence that the defendant was an expert in the law, was told what he or she was doing was illegal, or told someone else to ignore the law. Some lawyers believe that may explain why federal prosecutors never charged Trump with the campaign finance crime that Cohen admitted to working with Trump to commit.

“I assume that’s why SDNY didn’t indict Trump,” Eliason said, referring to the U.S. attorney’s office in the Southern District of New York. “I think the willfulness would have been a big hurdle to charging Trump himself.”

Smith said the issue in this case, as in Edwards’, isn’t just whether the defendant had a general understanding of campaign finance law, but could really have known for sure that what he was doing was illegal. “The strongest argument for Trump is that in fact there is quite a bit of controversy over whether this is illegal. Look at the FEC’s own rulings,” Smith said.

It’s unclear how Bragg’s prosecutors would meet that burden or if the judge will require them to. Pretrial motions didn’t really tee up the issue. It is likely to arise as the lawyers debate jury instructions or in a motion the defense typically makes asking the judge to toss the case after the prosecution’s witnesses have testified.

Eisen said he thinks Justice Juan Merchan will apply a lower standard in the state prosecution. “It’s so much easier than in federal court,” Eisen said.

However, there’s a risk to allowing prosecutors to get a conviction without having to prove that Trump knew he was breaking the law: That issue could be strong fodder for an appeal and might lead to any guilty verdicts against Trump being overturned.

“I think the likelihood of a conviction is quite high, quite strong,” said Eliason. “On appeal, that’s where some of these issues come up.”

Trump criticized Edwards’ case, but warned he might be convicted anyway

One piece of evidence prosecutors could turn to show Trump had some idea that payments related to an affair could be considered campaign donations could be an interview Trump did with Fox News days before Edwards’ trial opened in 2012.

“A lot of people are saying it's not a trial that the government's going to win. … And frankly, a lot of people say, and a lot of very good lawyers have told me, that the government doesn't have a good case,” Trump told Greta Van Susteren.

However, Trump went on to warn that a deeply unpopular defendant could be convicted even if the case wasn’t airtight. He said Edwards might be found guilty simply because people were angry at him for cheating on his ailing wife. (Trump’s dalliance with Daniels allegedly took place while Melania was pregnant.)

“He’s such an unlikable guy,” Trump said of Edwards. “He could take a case that really shouldn't be won, he could make them win it. So, let's see what happens.”