Former president Donald Trump appears in court for his arraignment on April 4, 2023, in New York.Seth Wenig/The Associated Press
One summer night in 2006 during a Lake Tahoe golf tournament, according to Stormy Daniels, she and Donald Trump had sex in his hotel suite. Mr. Trump would later deny this extramarital affair had happened. But a decade afterward, his then-lawyer, Michael Cohen, would pay Ms. Daniels, a pornographic film actress, US$130,000 to buy her silence the month before the election that sent the real estate mogul to the White House.
Next week, Mr. Trump will become the first former United States president to face criminal trial. New York state prosecutors contend that he falsified business records to cover up the hush-money payment and that the transaction itself constituted an illegal campaign contribution. The proceedings begin Monday with jury selection in a Lower Manhattan courtroom.
The case is the least serious of Mr. Trump’s prosecutions, which also include two indictments for trying to overturn the 2020 election and one for refusing to return classified documents after he left office. It may, however, be the only one to unfold before November’s election, a neck-and-neck rematch between him and President Joe Biden.
There is nothing to stop Mr. Trump from running, winning or serving as president, even if he is convicted and imprisoned. Still, the proceedings could play a central role in the race by focusing attention on the trial and away from the campaign trail.
District Attorney Alvin Bragg, who is leading the prosecution, has framed the case as a test of the republic’s rule of law. “These are felony crimes in New York State, no matter who you are,” he declared after Mr. Trump’s arraignment last year. “We cannot and will not normalize serious criminal conduct.”
Mr. Trump, meanwhile, has cast the proceedings as persecution by a nefarious justice system. “ELECTION INTERFERENCE!!!” he wrote this week on Truth Social, his social media platform. “BIDEN TRIALS!!!”
He has repeatedly tried to delay the trial, as he has all of his criminal proceedings, until after the election. This week alone, he lost three separate bids to put off the proceedings. If Mr. Trump returns to the White House, he is widely expected to use any power he can muster to end the prosecutions.
Ms. Daniels, whose legal name is Stephanie Clifford, says she and Mr. Trump had sex after meeting at the American Century Championship in Nevada. He was a reality television star at the time, playing in the celebrity golf tournament, and she was there promoting Wicked Pictures, the movie studio she worked for. The alleged tryst took place four months after the birth of Mr. Trump’s youngest child.
In October, 2016, some two weeks before the election, Mr. Cohen, then Mr. Trump’s fixer, used a shell company to pay Ms. Daniels to sign a nondisclosure agreement. The following year, Mr. Trump’s company paid Mr. Cohen US$420,000 in 12 installments characterized as a retainer for legal services. The amount covered the payment to Ms. Daniels, reimbursement for other expenses, taxes and a US$60,000 bonus for Mr. Cohen.
The basics of the payoff are not in dispute. The case will turn on whether or not it constitutes a crime. Mr. Bragg alleges that disguising the payments to Mr. Cohen as a retainer – rather than a reimbursement for the payout to Ms. Daniels – violated state business-records laws. Because the records were falsified to cover up a campaign expense that was illegal under federal law, Mr. Bragg contends, Mr. Trump’s crimes were felonies rather than misdemeanours.
When the payment first came to public attention, in 2018, Mr. Trump initially claimed to know nothing about it. He soon admitted to reimbursing Mr. Cohen, but maintained the arrangement was legal. “These agreements are very common among celebrities and people of wealth,” he tweeted then.
Jennifer Rodgers, a former federal prosecutor who teaches law at Columbia University, said Mr. Trump’s defence may try to sway the jury by arguing that his actions were simply not a big deal: anyone accused of having an affair with a porn star would want to cover it up out of embarrassment.
More legalistically, his lawyers are expected to argue that the payment had nothing to do with the election, and that a federal crime can’t be used to bump up a state-level misdemeanour to a felony. They will also almost certainly attack the credibility of Mr. Cohen, a key prosecution witness who served time in prison after striking a federal plea deal six years ago.
“This is not a particularly complicated case,” Ms. Rodgers said. “The issue is the unprecedented nature of trying a former president and this particular defendant: his penchant for disrupting the proceedings, likely outbursts in court, threatening and intimidating witnesses.”
In this and other cases, Mr. Trump has repeatedly assailed judicial officials, interrupted court sessions with political rants and baselessly accused Mr. Biden of personally directing the prosecutors. After the judge in the hush-money case, Juan Merchan, imposed a gag order last month to stop Mr. Trump from intimidating witnesses and court staff, Mr. Trump slammed Justice Merchan’s daughter for working for Democratic political candidates.
Stuart McPhail, the director of campaign finance litigation at Citizens for Responsibility and Ethics in Washington, a government watchdog group, contends that the case is about more than Mr. Trump trying to hide a personal peccadillo. Rather, he said, it fits a larger pattern of disrespect for democracy.
“What Trump did was part and parcel of corrupting elections. He was happy to lie and cheat,” Mr. McPhail said. “As we saw in 2020, he was willing to attack the government to stay in power. The hush money may seem paltry in comparison, but it’s part of the same course of action.”
The Manhattan trial is also significant for being the only time the former president may face consequences for a raft of alleged campaign-finance violations, Mr. McPhail said. More than 50 complaints against Mr. Trump or his campaign groups have been filed with the Federal Election Commission, but Republican members of the regulatory body have blocked any sanction against him.
The payment to Ms. Daniels, Mr. Bragg’s indictment alleges, was part of a broader plan to silence people with potentially damaging information about Mr. Trump before the election. The indictment says the payoff was concocted by Mr. Trump, Mr. Cohen and David Pecker, then a supermarket tabloid mogul, at a meeting at Trump Tower in August, 2016. It also describes a meeting between Mr. Trump and Mr. Cohen in the Oval Office in February, 2017, to arrange the reimbursement structure.
Mr. Pecker’s former company paid a fine for brokering a similar hush payment to Karen McDougal, a Playboy playmate who says she and Mr. Trump had an affair. Mr. Trump was not charged federally in that case, or for the payment to Ms. Daniels.
The current trial may be the only one to reach its conclusion before voters cast their ballots. Mr. Trump has successfully pushed back his federal trial for attempting to overturn the 2020 election until after the Supreme Court rules on his argument that presidents enjoy absolute immunity from prosecution for anything they do while in office. That ruling may not come until July.
The second 2020 election case, at the state level in Georgia, involves many defendants and is far from going to trial. In the classified documents case, Trump-appointed Judge Aileen Cannon has not set a schedule for moving forward.
Justice Merchan rejected an attempt by Mr. Trump to put off the hush-money trial until after the Supreme Court rules. Because the case involves actions conducted partly before Mr. Trump became president, it might be allowed to continue even if the Supreme Court accepts his argument on presidential immunity.
What effect the case will have on the election is yet to be seen. Shannon Bow O’Brien, a presidential expert at the University of Texas at Austin, said its major significance may be in affirming that no one in the country is above the law.
“Our presidents aren’t kings,” she said. “They’re just average citizens with really cool jobs.”
Adrian Morrow