The trial on the least important topic may be the most important to the 2024 election.
When former President Donald Trump was indicted in New York for falsifying business records last March, many anticipated that would be the prologue to the main event: charges over Trump’s attempt to steal the 2020 election.
Yet the two election indictments — and another prosecution of Trump for hoarding classified documents — have moved slowly and been beset with delays.
That means that, suddenly, the question of whether or not Trump will be convicted of crimes before November’s election may hinge on the Manhattan trial that starts Monday.
Which is a bit awkward, because the actual matter at the heart of this trial is clearly the least important — having the least significant implications for the country — of the four prosecutions brought against Trump.
The New York trial is broadly about the $130,000 hush money payment Trump’s lawyer and fixer Michael Cohen paid Stormy Daniels shortly before the 2016 election, so Daniels wouldn’t go public saying she’d had a sexual encounter with Trump.
But the 34 charges are specifically about whether, when Trump later repaid Cohen for that money, the Trump Organization falsely logged those payments as “legal expenses” in company records. That false labeling, prosecutors allege, is the crime here.
Compared to trying to steal the 2020 election or hoarding documents with national security secrets, this doesn’t seem like the most substantively important topic.
But the Washington, DC, election case has been delayed by Trump’s appeal to the Supreme Court, and while a trial could still happen before November, the window is narrow.
The Florida documents case has been held up by a slow-moving, Trump-appointed judge who appears to be in no rush to resolve key pretrial issues.
And the Georgia election case is so complex, involving so many defendants, that it was never expected to move quickly. No trial date has yet been set.
So the questions of whether Trump will face voters in November as a convicted felon — or even a convicted felon with a prison sentence hanging over his head — may well be determined by what happens in a Manhattan courtroom over the next few weeks.
Why it’s so important to be honest on your internal corporate documentation of how you repaid your fixer for the hush money he paid to an adult film actress, explained
Paying “hush money” sounds shady, but in and of itself, it’s not illegal. Well-known figures from time to time pay people off to keep them from coming forward with embarrassing stories.
But Cohen had paid Daniels $130,000 for her silence shortly before the 2016 election. Federal prosecutors have argued that this payment was clearly designed to help Trump win, and that therefore, it was effectively a campaign contribution from Cohen to Trump, far greater than the maximum contribution allowed in federal campaign finance law.
Cohen pleaded guilty to this in 2018, saying he was acting at Trump’s direction. But Trump was not charged by federal prosecutors — Justice Department guidance about not charging a sitting president took that off the table. And even when Trump left office, the DOJ decided not to reopen the case.
So state prosecutors in the Manhattan district attorney’s office stepped in, launching a sprawling investigation of Trump’s business affairs that, after a long and winding road, ended back at the hush money.
More specifically, it ended with charges that Trump’s repayments to Cohen for the hush money were improperly classified as legal expenses in internal Trump Organization documents. This violated New York law against falsifying business records, prosecutors allege.
Furthermore, the DA’s office argued that these charges should be felonies rather than misdemeanors — because the records were falsified with the intent to commit or conceal another crime. What crime that would be exactly has been the subject of some dispute, but they have said that federal election law, state election law, or tax law could all fit the bill.
Still, the somewhat bizarre situation here is that Trump isn’t being charged for paying hush money — he’s being charged for failing to scrupulously keep honest records about it.
Jury selection is up first — and it will matter hugely
District Attorney Alvin Bragg’s case was greeted with much tut-tutting from pundits and some legal experts, who argued the legal reasoning behind the case was flawed.
Yet all the doubts big legal brains might have about the theories behind the prosecution won’t necessarily matter to jurors, who are tasked with answering the basic question: Did he do it or not?
In this case especially, the first stage of the trial — jury selection — will be tremendously important. Jurors are told not to let their outside information and political leanings affect their judgment, but obviously, that could still happen, either deliberately or simply through bias.
Trump’s biggest problem is geography. Jurors will be from Manhattan, where President Joe Biden won 84.5 percent of the vote in 2020. Trump has dealt with Manhattan juries in three civil trials over the past year, none of which went well for him: He was found liable for sexual abuse, and defamation, and was ordered to pay hundreds of millions of dollars in fines.
Still, Trump’s biggest advantage is that he only needs to convince one juror. Conviction requires unanimity on the jury, so if even one juror wants to acquit, Trump skates. And not everyone in the jury pool will be a die-hard Trump hater; there will be some Republicans and some who are not politically engaged.
What happened to the other Trump prosecutions?
The other three prosecutions of Trump are all currently in limbo.
1) DC: Federal charges for trying to steal the 2020 election: This trial was originally supposed to kick off in early March. But things have been on hold while the Supreme Court weighs Trump’s argument that presidential immunity should prevent him from being prosecuted here. Lower court judges have rejected this claim, but SCOTUS is taking its time, with arguments taking place next week.
It is still theoretically possible for this trial to happen this year. Since the pause occurred when the trial was three months away, we might expect a new trial date three months after the Supreme Court’s likely May or June ruling — so, starting in August or September. But the trial is expected to be lengthy, and Trump’s team will surely argue against setting a date that would eat up much of the fall campaign season. Judge Tanya Chutkan would get to make the call.
2) GA: State charges for trying to steal the 2020 election: The recent drama over District Attorney Fani Willis has subsided, as she was permitted to stay on the case. But from the start, experts have been highly skeptical that the complex Georgia racketeering case against Trump and many other co-defendants would happen before November. And there is still no trial date in sight.
3) FL: Federal charges over retaining classified documents: Judge Aileen Cannon, a Trump appointee, has taken an unusual amount of time to rule on various pretrial issues in the documents case, and has often entertained bizarre legal arguments. Critics have theorized she is deliberately trying to delay the trial until after November. The legal wrangling has gotten increasingly tense, and though Cannon has ruled in special counsel Jack Smith’s favor on two recent matters, a whole lot more has to get done before this trial can happen.
