The Non-Trivial Crimes of Donald J. Trump
Plus: the GOP loses Wisconsin
The defendant DONALD J. TRUMP repeatedly and fraudulently falsified New York business records to conceal criminal conduct that hid damaging information from the voting public during the 2016 presidential election. —Statement of Facts, THE PEOPLE OF THE STATE OF NEW YORK vs. DONALD J. TRUMP
This was the man in full.
From the sulking defendant in the dock to the seething victim who aired his grievances—and there are many, many, many—in a bizarre primetime diatribe to the faithful at Mar-a-Lago.
For the first time in American history, a former president was read his Miranda rights and arraigned on felony charges.
So that was new.
But, by now, we know this guy, and we know how we all got here. This is what Donald J. Trump has done to our norms and our collective conscience:
He is the only man in American presidential history who could pay off two porn stars, orchestrate a criminal conspiracy to cover it up in the final crucial days of a presidential election, and have people think that it was “trivial.”
After seven years of pussy grabbing, mendacity, incitements, obstruction, shooting people in the middle of Fifth Avenue, and an endless torrent of lies, the smart kids still look at the criminal charges and wonder if that’s all there is to it?
For a moment, let’s leave the horse-race punditry, game theories, and the deep-in-the-weeds legal exegesis to others, and try to put all of this in some useful context, courtesy of the Manhattan DA’s “Statement of Facts.”
The Scheme.
From August 2015 to December 2017, the Defendant orchestrated a scheme with others to influence the 2016 presidential election by identifying and purchasing negative information about him to suppress its publication and benefit the Defendant's electoral prospects.
Catch and Kill.
During and in furtherance of his candidacy for President, the Defendant and others agreed to identify and suppress negative stories about him….
In June 2015, the Defendant announced his candidacy for President of the United States. Soon after, in August 2015, the Defendant met with [Michael Cohen] and AMI's Chairman and Chief Executive Officer [David Pecker] at Trump Tower in New York County.
At the meeting, [Pecker] agreed to help with [Trump’s] campaign, saying that he would act as the eyes and ears for the campaign by looking out for negative stories about [Trump] and alerting [Cohen] before the stories were published. [Pecker] also agreed to publish negative stories about [Trump’s] competitors for the election.
Trump’s co-conspirators admitted it was illegal.
In August 2018, [Michael Cohen] pleaded guilty to two federal crimes involving illegal campaign contributions ,and subsequently served time in prison.
In addition, in August 2018, American Media, Inc. (AMI ), a media company that owned and published magazines and supermarket tabloids including the National Enquirer, admitted in a non-prosecution agreement that it made a payment to a source of a story to ensure that the source did not publicize damaging allegations about [Trump] before the 2016 presidential election and thereby influence that election….
The doorman and the porn stars.
A few months later, in or about October or November 2015, [Pecker] learned that a former Trump Tower doorman (the Doorman ) was trying to sell information regarding a child that [Trump] had allegedly fathered out of wedlock. At [Pecker’s] direction, AMI negotiated and signed an agreement to pay the Doorman $30,000 to acquire exclusive rights to the story. AMI falsely characterized this payment in AMI's books and records, including in its general ledger. AMI purchased the information from the Doorman without fully investigating his claims, but [Pecker] directed that the deal take place because of his agreement with [Trump] and [Cohen]
When AMI later concluded that the story was not true, [Pecker] wanted to release the Doorman from the agreement. However, [Cohen] instructed the AMI CEO not to release the Doorman until after the presidential election, and the AMI CEO complied with that instruction because of his agreement with [Trump and Cohen.]
Covering up Karen McDougal’s story.
About five months before the presidential election, in or about June 2016, the editor-in-chief of the National Enquirer and AMI's Chief Content Officer (the AMI Editor-in Chief ) contacted [Cohen] about a woman [McDougal] who alleged she had a sexual relationship with the Defendant while he was married. The AMI Editor-in-Chief updated [Cohen] regularly about the matter over text message and by telephone.
[Trump] did not want this information to become public because he was concerned about the effect it could have on his candidacy.
Thereafter, [Trump] [Pecker] and [Cohen] had a series of discussions about who should pay off [MacDougal] to secure her silence.
AMI ultimately paid $150,000 to [McDougal] in exchange for her agreement not to speak out about the alleged sexual relationship, as well as for two magazine cover features of Woman 1 and a series of articles that would be published under her byline.
Lordy, there are tapes.
In a conversation captured in an audio recording in approximately September 2016 concerning [McDougal], [Trump] and [Cohen] discussed how to obtain the rights to [McDougal’s] account from AMI and how to reimburse AMI for its payment. [Cohen] told [Trump] he would open up a company for the transfer of [McDougal’s] account and other information, and stated that he had spoken to the Chief Financial Officer for the Trump Organization [Allen Weisselberg] about how to set the whole thing up.
[Trump] asked, So what do we got to pay for this? One fifty? and suggested paying by cash. When [Cohen] disagreed, [Trump] then mentioned payment by check.
“Access Hollywood” AGAIN
About one month before the election, on or about October 7, 2016, news broke that the Defendant had been caught on tape saying to the host of Access Hollywood: “just start kissing them [women]. It's like a magnet. Just kiss. I don't even wait. And when you're a star, they let you do it. You can do anything. ... Grab em by the [genitals]. You can do anything.”
The evidence shows that both [Trump] and his campaign staff were concerned that the tape would harm his viability as a candidate and reduce his standing with female voters in particular.
Shortly after the Access Hollywood tape became public, the AMI Editor-in-Chief contacted [Pecker] about another woman [Stormy Daniels] who alleged she had a sexual encounter with [Trump] while he was married. [Pecker] told the AMI Editor-in Chief to notify [Cohen].
[Trump and Cohen agreed to pay $130,000.]
Trump thought about stiffing her.
[Trump] directed [Cohen] to delay making a payment to [Stormy Daniels] as long as possible . He instructed [Cohen] that if they could delay the payment until after the election, they could avoid paying altogether, because at that point it would not matter if the story became public.
As reflected in emails and text messages between and among [Cohen], Lawyer B and the AMI Editor-in-Chief, [Cohen] attempted to delay making payment as long as possible.
Ultimately, with pressure mounting and the election approaching, [Trump] agreed to the payoff and directed [Cohen] to proceed.
Before making the payment, [Cohen] confirmed with [Trump] that Defendant would pay him back.
Trump falsifies records to cover-up the payoffs.
Shortly after being elected President, [Trump] arranged to reimburse [Cohen] for the payoff he made on the Defendant's behalf. … [Allen Weisselberg] and [Cohen] agreed to a total repayment amount of $420,000.
They reached that figure by adding the $130,000 payment to a $50,000 payment for another expense for which [Cohen] also claimed reimbursement, for a total of $180,000. [Weisselberg] then doubled that amount to $360,000 so that [Cohen] could characterize the payment as income on his tax returns, instead of a reimbursement, and [Cohen] would be left with $180,000 after paying approximately 50% in income taxes.
The Oval Office meeting.
In early February 2017, [Trump] and [Cohen] met in the Oval Office at the White House and confirmed this repayment arrangement.
The thuggery.
Justice Juan Merchan explicitly told Donald Trump, “Please refrain from making statements that are likely to incite violence or civil unrest ... making comments that have potential to incite violence, create civil unrest [or] jeopardize the state or well-being of any individuals.” He also asked Trump not to engage in rhetoric that will “jeopardize the rule of law.”
The low energy reaction.
Tom Nichols writes in the Atlantic:
What’s interesting, however, is how the explosion of rage we’d all waited for—and that Trump both demanded and expected—has been, so far, more like a grumble than a shout. Turnout in front of the New York courthouse has been contained, despite the arrival of the professional sedition booster Marjorie Taylor Greene.
Writing this off as a “blue state” issue is easy, but New York is full of MAGA folks not only upstate but also closer to Manhattan in Staten Island and the super-red districts of Long Island, as well as some redoubts just north of the city such as the exurban Dutchess County. If New York’s Trump brigades wanted a big turnout, they’re only a short drive, subway ticket, or bus ride away.
**
Make sure you read our coverage in the Bulwark today:
Kim Wehle: “The Case Against Trump: The Charges and the Facts Behind Them.”
Will Saletan: “In His Post-Arraignment Speech, Trump Piles on More Lies.”
The indictment sought by Manhattan District Attorney Alvin Bragg and released today by the city’s Supreme Court… is not a trivial document. And Trump’s defenders should not kid themselves that this case is mere politics. It alleges serious misconduct: plotting to pay hush money to multiple people to avoid electoral consequences and falsifying documents to cover it up. And it does so with an apparently powerful array of witnesses and documents to back it up. This evidence appears both more diverse and more substantial than previously understood.
[Lawfare editor-in-chief Benjamin Wittes will join me on today’s Bulwark podcast later today.]
**
My hottest take: The NY trial is not scheduled until January, and is likely to be pushed into Spring 2024. By that time, it will be very old news, likely overshadowed by indictments from Georgia and the DOJ.
But we’ll always have the perp walk:
Meanwhile, in Wisconsin…
MILWAUKEE — Wisconsin voters on Tuesday chose to upend the political direction of their state by electing a liberal candidate to the State Supreme Court, flipping majority control from conservatives, according to The Associated Press. The result means that in the next year, the court is likely to reverse the state’s abortion ban and end the use of gerrymandered legislative maps drawn by Republicans.
Janet Protasiewicz, a liberal Milwaukee County judge, defeated Daniel Kelly, a conservative former Wisconsin Supreme Court justice who sought a return to the bench. With 90 percent of votes counted, Judge Protasiewicz led by 10 percentage points.
How bitter was the contest? Check out what may be the least gracious concession speech ever given by a judicial candidate:
In last night's TNB, Sarah was clearly concerned that the NYC Indictment will make trump the GOP nominee, and that he could very well win the general election because of it. While I understand her angst, I think it's misplaced.
Which trump voter or elected GOP official (even "elite" and "normies") would have reacted differently if the first Indictment had been the Jan 6 case, or the Documents case, or even the GA State case? These people simply do not want accountability for their dear leader. Any Indictment would have garnered the same response and reaction. Which one of them was going to say, "We need to let the judicial process play out, wait to see the evidence, before rushing to judgement"?
Sarah appears to believe that a stronger, more "serious" case would have somehow appealed to reason, all evidence from the past 7-8 years to the contrary. Most of trump's supporters (voters and elected officials) operate on a visceral level, while the rest of them operate on a cynical level (as in "we're held hostage by our base" or "we can overlook the noise because we want to gain and keep power for our side").
Lastly, while I have great sympathy for the genuine concern that Sarah feels for our nation, the fact remains that if trump is re-elected, it isn't on the Democrats for that outcome. Democrats have not methodically weaponized the judicial process - they have not exerted sway over it. Some might cheer the fact that Accountability is finally at hand, in some small measure so far, but to shy away from it would indeed be playing politics. It's more than mere words when said "without fear or favor" - it is the foundation of principles that our nation must embrace.
I think part of my fatigue is the insistence that we always try to make things easier for the GOP to accept and move on with. What about the rest of the country who is so sick and tired of always being one election away from the collapse of our democracy? Should we have asked Rosa Parks to give up her seat, because to do otherwise would spark civil unrest? Should we have insisted that LBJ not work so assiduously to pass the Voting Rights and Civil Rights Acts, because it would cost the Democrats the South for generations to come? Of course not. So why put the burden for what the GOP has wrought squarely on the shoulders of the Democrats, asking us to somehow divine how to lead them safely back from the brink?
I'm all for doing what we can to change this toxic environment, except when it requires us to turn our back on our core principles, in the futile hope that the GOP will finally do what's best for our country. The only ones I see willing to do that are former Republicans and Never-Trumpers. Can we all agree that our country would be in far better shape today if the Republican Party had not sacrificed their core principles at the altar of trump? Sometimes we, as people, and we, as a nation, get to the point of ENOUGH IS ENOUGH ALREADY. I'm there.
Daniel Kelly's speech was yet one more example of how whiney victimhood is now perceived as strength by the populist wing of the GOP. Utterly disgraceful and petty.