On Tuesday, April 4th, 2023, Donald Trump surrendered in Manhattan after being indicted by the Manhattan District Attorney’s Office. He was fingerprinted but there was no mug shot taken. Trump’s team created a fake mug shot to put on a T-shirt that they are selling to supporters online to make money. Trump faces 34 felony counts of financial fraud, essentially he is being charged with lying on financial documents. Conspiracy is not charged, but the indictment exposes a scheme to defraud voters. This is the first time Trump has been criminally indicted for wrongdoing and the first time an American president has been criminally indicted in the history of our country.
This lawsuit is not really about bookkeeping fraud. It is about a fraud Trump perpetrated on the voters of America by engaging in a scheme to cover up the truth about who he was (and still is) so that he could get elected.
Where Did This Case Come From?
In 2015 and 2016 as Donald Trump was running for president, he knew that if he hoped to be elected he had to portray himself as a family man, a successful businessman and a decent enough person that Evangelicals could vote for him in good conscience. The truth was that he was a failed businessman, a philanderer, and not the least bit religious or pious. But we know for a fact after living with this man as our president, 30,000 plus lies later, that Trump is perfectly comfortable being extremely dishonest. Trump lives in two worlds. One is a world that is based in reality and the other is a world that is false and sustained by conservative media. On Earth One Trump is a criminal defendant who broke the law with impunity and isn’t who he says he is. On Earth Two, the alternate universe, Trump is powerful, successful, the best, the greatest savior of America that America has ever known. That magical make believe world was the one Trump has constructed over time using The Apprentice and the help of people like David Pecker of AMI (The Inquirer) who would help him to catch and kill “bad” stories about Trump that could hurt his image. To win in 2016 Trump had to sustain his false image to win the votes of low information white male voters. Or so he thought.
As the election was nearing, the Access Hollywood tape came out. Trump’s exposure as a grab-em-by-the-pussy misogynist caused many Republicans to run for cover. Even people who would later become Trump apologists, like Senator Mike Lee, ran away from him at that time. To win, Trump needed to change the narrative, hoping to prevent further damage to his image. Stormy Daniels had shown up on the scene threatening to expose his relationship with her. And another woman, Karen McDougal, emerged as a threat as reporters began to dig more into his background. She too could expose Trump as the person he really was. And on top of all that, Trump’s doorman started talking with reporters about a child born out of wedlock rumor involving Trump. It was zero hour for Trump. Could he preserve the image he had cultivated long enough to beat Hillary and get himself elected? The answer was clear to him. If Trump wanted to pull off this Hail Mary bid for the presidency, he would have to pay people off to preserve the phony image of himself so he could win.
It’s hard to remember now, but back in 2016 it really looked like Hillary Clinton would be our next president. Who would have guessed that the religious right would come to love him so much they would not care that he was a selfish, immoral, dishonest human being? Certainly, Trump did not expect that. The scheme that Trump entered into with Michael Cohen and David Pecker to preserve his false image involved a cast of shady characters who needed to be paid off so they would keep the truth from the public. We will be hearing from some of them at the trial.
Here they are:
STORMY DANIELS: A porn star and director with nicknames for her breasts— Thunder and Lightning — whom Trump paid $130,000 to keep their alleged affair under wraps. (She said they had sex one time and compared his privates to fungus.)
KAREN McDOUGAL: A Playboy model who was paid $150,000 to keep quiet about an alleged long-term affair said to have started after Trump filmed “Celebrity Apprentice” at the Playboy Mansion.
DINO SAJUDIN: A doorman who was paid $30,000 to keep quiet about a story of a Trump love child that later turned out to be fake.
DAVID PECKER: A media executive who was publisher of the National Enquirer — recent headline: “UFOs SHOOT DOWN AMERICAN MISSILES!” — which agreed to act as the “eyes and ears” for the Trump campaign by purchasing and burying negative stories during the 2016 campaign.
MICHAEL COHEN: Trump’s ex-lawyer and “fixer” who went to prison for perjury and tax fraud and will be the prosecution’s star witness. (Politico)
Conservative Media, Trump, the GOP and Earth Two
Keeping Republicans who are Trump supporters inside the fantasy bubble is what Trump and conservative media have both been busy doing for many years now. The Dominion lawsuit (and soon Smartmatic’s lawsuit), and Trump’s criminal and civil matters grew out of the same protection of a false identity and a fictitious reality. For example. on Earth Two Biden is supposedly part of a crime family but Trump’s family is not engaged in corrupt practices. On Earth Two Republicans are for Life and free choice when they are in fact all about forced births and removing reproductive rights from women and could care less about the unwanted children once they are born. On Earth Two the way to stay safe when it comes to guns is to make sure there are even more guns including weapons of war on the streets of America. On Earth Two the heckler has the ultimate word, his veto must keep everyone else from reading that book even if the book is Anne Frank’s Dairy or it’s about Rosa Parks. On Earth Two being gay is a choice rather than something you get in your DNA. Oh, and hydrocholorquine cures Covid on Earth Two. I could go on. Earth Two is a fact free universe. The law, facts, science and reality give way to wishes, conspiracy theories, and fantasies.
Disinformation thrives on Earth Two. Trump and Fox have been working hard to maintain Earth Two- the false world where Trump is a successful businessman, a savior, a leader, and the best hope for democracy. Earth One- the real world, stands in vivid contrast and stark contradiction to this fantastical world. For a long time now, Trump has been protected as part of the fantasyland information silo which Republicans maintain, barring the door against reality.
That may be coming to an end. Reality is going to hit and hit hard.
What Happens When The Rubber Meets the Road?
What happens when the false world meets reality in a court of law? This is what we are about to see play out in multiple cases. For example, in the Mar-a-Lago documents case, Trump has asserted to his followers over and over again that the documents belong to him and he had and has the right to keep them. He has said many times: “I have a right to declassify documents and it is automatic.”
No he doesn’t. They belong to the government. That is the law.
He was told that truth over and over again by his aides. Trump’s claim of being granted the power to declassify in his mind is reality only on Earth Two. On Earth Two, The World According to Trump, he has the right to keep the documents.
No. He. Doesn’t.
In the Georgia case, Trump called up Brad Raffensberger, Georgia’s Secretary of State, and tried to cajole and strong arm him to “find” him just enough votes to say he won in Georgia. Here we see Trump reframing and retrofitting reality again. He didn’t lose on Earth Two. He won. In that taped call we hear Trump reshaping the narrative and making his best mob boss effort to get Raffensberger to go along with the Earth Two version of the election.
The Big Lie is a central part of the narrative on Earth Two as we have seen. In the Georgia case, we hear how Trump is starting to develop and push that Big Lie. We also know what Trump was told. He was told that he lost. Many times. And we also know he knew he lost but he said he wasn’t going to concede. This is nothing new. This is vintage Trump. Trump is totally comfortable lying to craft the reality of Earth Two even though he knows better. The guy lies as he breathes.
In a court of law, however, the rubber meets the road. Reality wins. Facts win. Because judges insist on factual evidence. None of this Earth Two stuff.
But the law must also fit the facts to have a successful prosecution. What Bragg alleges in these 34 counts is essentially a scheme to defraud the public. Which happened. But to get to a guilty verdict, the laws charged must also fit the crimes committed. That’s where Bragg might run into some trouble.
What Laws Are Likely to Be Provable in the Manhattan Case?
The indictment listed 34 counts of bookkeeping fraud related to Mr. Trump’s reimbursement in 2017 to Michael D. Cohen, his former lawyer and fixer. Just before the 2016 election, Mr. Cohen had made a $130,000 hush money payment to the pornographic film actress Stormy Daniels, who has said she and Mr. Trump had an extramarital affair.
Various business records concerning those payments to Mr. Cohen, an accompanying statement of facts said, falsely characterized them as being for legal services performed in 2017. For each such record, the grand jury charged Mr. Trump with a felony bookkeeping fraud under Article 175 of the New York Penal Law. A conviction on that charge carries a sentence of up to four years.
But bookkeeping fraud is normally a misdemeanor. For it to rise to a felony, prosecutors must show that a defendant intended to commit, aid or conceal a second crime — raising the question of what other crime Mr. Bragg would contend is involved.
“Pundits have been speculating that Trump would be charged with lying about the hush money payments to illegally affect an election, and that theory rests on controversial legal issues and could be hard to prove,” said Rebecca Roiphe, a New York Law School professor and former state prosecutor.
“It turns out the indictment also includes a claim that Trump falsified records to commit a state tax crime,” she continued. “That’s a much simpler charge that avoids the potential pitfalls.”
The bottom line is that to reach a felony, many of these counts will require bootstrapping the misdemeanor to a felony. That might be successfully challenged by Trump’s defense team because the acceptance of the legal theory upon which the count becomes a felony rests on unsettled law.
The prosecution will need to argue that a federal crime transforms a misdemeanor count to a felony count. Trump’s defense attorneys will say since the felony is not a violation of New York law, it cannot be used as a bootstrap. Courts will be asked to rule on that construction of the law the DA Bragg is positing in this indictment.
However, there is at least one state charge that avoids the problem Roiphe and other legal scholars are pointing out. Any charge involving NY state tax crimes as the bootstrap to make the misdemeanor into a felony will likely withstand judicial scrutiny and be allowed to stand as felony counts. We do not yet know if there will be a superseding indictment with more of these charges that would probably withstand attack. Prosecutors can add and subtract counts during the discovery phase. We shall see.
Political Fallout for Trump and the GOP
The Manhattan trial is set for December and might not start until January of 2024. Is this too long a time frame to do any damage to Trump before the primary season? No. There is already damage to Trump and more is coming. In some ways it might be for the best that the Manhattan case will recede in the minds of the public when Jack Smith and Fani Willis indict Trump because those cases are powerful body blows to the alternate reality universe protecting Trump. Willis is thought to be close to indicting Trump- probably in the next few weeks.
Trump has become damaged goods.
Yes, I know he already raised over 7 million from his base, and he will raise more. He will always be adored by his base. But many Republicans are starting to look for a better version of Trump– someone younger and more electable. De Santis probably messed up by lurching too far to the right. He is scaring off suburban voters, especially women, because he has shown us his true colors as an autocrat wannabee. If Florida passes a 6 week ban on abortion De Santis’ run for the presidency will be toast. Glenn Youngkin, Tim Scott and Brian Kemp must look very appetizing to the Republican donor class right about now.
Does that mean Trump will not be the GOP nominee? Nope. It means all these GOP hopefuls are likely to crowd the field and Trump is still the most likely to ride his limping horse over the finish line to become the nominee. That will happen unless somehow his cult followers also decide he is not electable and their glorious lost cause is not worth fighting anymore. No sign of that yet. But watch for it because THAT would be a sea change that could make a difference in the outcome in 2024.