Welcome to FiveThirtyEight’s politics chat. The transcript below has been lightly edited.
nrakich (Nathaniel Rakich, senior elections analyst): On Tuesday, former President Donald Trump was arraigned in a Manhattan courthouse and we finally learned the nature of the charges against him. Trump pleaded not guilty to 34 felony counts of falsifying business records stemming from his (indirect) payment to porn actor Stormy Daniels in exchange for her keeping quiet about an affair the two allegedly had. Trump’s then-lawyer, Michael Cohen, made the payment, and Trump reimbursed him with 11 payments over the course of 2017 that were falsely characterized as legal expenses. Each of those payments yielded three felony charges: one for Cohen’s invoice to Trump, one for the check Trump cut and one for the record of the transaction in a ledger maintained by the Trump Organization. (One of the payments was recorded in the ledger twice, yielding the 34th charge.)
alex (Alex Samuels, politics reporter): In order for falsifying business records to be a felony, not a misdemeanor, in New York, prosecutors now have to prove that Trump committed this offense with the intent to commit or conceal another crime. So in addition to proving that Trump intended to falsify business records (and intent is notoriously challenging to prove — just ask those who unsuccessfully prosecuted former North Carolina Sen. John Edwards!), the prosecution will also have to prove intent or concealment of another crime. And, notably, the indictment itself doesn’t mention what that other crime is.
nrakich: Yeah, Alex, that’s where this gets interesting. What did we learn about what Manhattan District Attorney Alvin Bragg will argue the underlying crime was?
ameliatd (Amelia Thomson-DeVeaux, senior reporter): We learned that Bragg is indeed offering some kind of election-law-related theory for that underlying crime. It’s not exactly clear how he’s going to go about doing it, but he made clear during his press conference — and it was also clear from the statement of facts that the DA’s office released about the case — that prosecutors will argue that Trump conspired with others to illegally promote his candidacy during the 2016 election and falsified business documents in service of that goal.
nrakich: Yeah, even though the indictment was completely focused on Trump’s payments to Cohen (and, by extension, Daniels), the statement of facts focused a lot on this “catch and kill” scheme that Trump and former American Media, Inc., CEO David Pecker allegedly undertook, whereby the National Enquirer would buy exclusive rights to salacious stories about Trump (like that he fathered a child out of wedlock, or that he had an affair with another woman who wasn’t Daniels) and then sit on them, thereby preventing bad news from leaking about Trump in the midst of his presidential campaign.
ameliatd: Right, Nathaniel. The statement of facts opens with two “catch and kill” situations that aren’t the subject of the indictment. They’re included to help build up prosecutors’ argument that Trump, Cohen, Pecker and others were engaged in a long-term plot to suppress stories that would look bad for Trump while he was running for president.
nrakich: Do we know what law they allegedly broke when they tried to illegally influence the 2016 election, though? Was it campaign finance, or … ?
ameliatd: That’s the million-dollar question! During his press conference, Bragg mentioned a New York state election law, but it’s unclear how a state law barring people from conspiring to illegally influence an election would affect a federal candidate, since federal candidates are governed by federal laws that usually supersede state laws. Bragg also mentioned the fact that Cohen’s payment (the hefty sum of $130,000) well exceeded the federal campaign contribution cap — but it’s unclear whether Bragg, a New York prosecutor, would have jurisdiction over a federal crime.
All this is to say there are plenty of avenues for Trump’s lawyers to try to poke holes in the case or even get the charges thrown out or knocked down to a misdemeanor. I think that’s why prosecutors hinted at a third potential legal strategy in their statement of facts. When Cohen paid Daniels with his own money and Trump reimbursed him, everyone involved in the scheme pretended that Trump was paying Cohen for legal services. That means Cohen paid taxes on that money as if it had been income — but it wasn’t. Prosecutors seem to be arguing that because Cohen paid taxes on the reimbursement (which he wouldn’t do if it was a true reimbursement), Trump was also part of a conspiracy to deceive tax authorities.
That could serve as a backstop in case the judge doesn’t buy the theory about election law violations.
nrakich: Yeah, it kind of feels like prosecutors are throwing a bunch of stuff against the wall and seeing what sticks. Is that normal, or does it signal a lack of confidence in any one of these theories on its own?
ameliatd: That’s normal. However, I think it’s also a sign that Bragg and his team understand the magnitude of what they’re doing here and that they’re trying to bring the strongest possible case.
nrakich: Now that we’ve learned a little bit more about the nature of the charges against Trump, how strong do we think the case is? Do we have any sense yet of whether Trump will be convicted?
ameliatd: It’s too early to say how strong the case is overall — we’re really just at the beginning of the process. Now, before the trial even begins, there is going to be an epic battle between Trump’s lawyers and the New York prosecutors over basically every aspect of the prosecutors’ argument. How that goes for both sides will be an early clue about the strength of the arguments. But legal experts have expressed skepticism about the election-law theory in particular, and Bragg didn’t explain how he’ll overcome the challenges they’ve identified. Fighting over that piece of the case in particular could tie things up for a looooooong time.
alex: To your earlier point, Amelia, I’m not sure if Trump can be liable for state election laws as a federal candidate? I’m not a lawyer, but I thought state prosecutors were precluded from prosecuting federal candidates.
ameliatd: Yup, that’s a potential problem, Alex! We actually don’t know the answer — New York’s appellate courts have never addressed whether a New York prosecutor can point to a federal crime to prove that someone promoted a candidacy by unlawful means (which is the New York state law in question here). So this is a genuinely open question.
Is it a good idea to test out a novel legal theory to prosecute a former president who’s also actively running for president? Time’s gonna tell on that one.
Even some of Trump’s critics seem nervous that this may be thin ice for the prosecutors.
alex: As the saying goes: “You come at the king, you best not miss.” In this vein, and based on what I’m learning from you, Amelia, it seems possible that this case either gets thrown out or tied up in the legal system well past the 2024 election. And if Tuesday was any indication, this is a circus that’ll likely embolden both Trump and his base — especially if he walks.
ameliatd: It is totally possible that the case could get thrown out on a legal technicality that has nothing to do with what Trump actually did, yes. Which Trump could easily spin into a big win.
nrakich: Yeah, Alex, how did Trump react to all this?
alex: Well, for one, it seemed like he largely ignored a warning from the assigned judge to refrain from inflammatory rhetoric. I mean, he went after the judge and his family in a speech just hours after the arraignment! But during that speech at Mar-a-Lago, he essentially painted himself as a political martyr. He told supporters that he “never thought anything like this could happen in America” and that “the only crime [he] committed is to fearlessly defend our nation from those who seek to destroy it.”
nrakich: And Republicans are largely standing by him, yes?
alex: Yes! Republican lawmakers so far have directed their criticism at Bragg rather than Trump himself. Republican voters also haven’t really distanced themselves from Trump — at least not yet.
And based on the evidence we have so far, I’m not entirely convinced that they will. According to a poll from The Economist/YouGov fielded immediately following the indictment, 76 percent of Republican adults (and 85 percent of those who supported Trump in 2020) said they believed the indictment is more the result of a “witch hunt” versus a “legitimate investigation.” Moreover, a majority of Republican adults (69 percent) said that they didn’t think Trump can get a fair trial in New York.
nrakich: That poll was mostly fielded before the arraignment and the announcement of the specific charges, though. Did anything we learned on Tuesday change your expectations for how much this will affect Trump politically?
alex: I think it’s hard to say without seeing any new polls, Nathaniel. But there weren’t really any surprises in terms of the facts presented yesterday. And if the base wasn’t willing to turn on Trump earlier, I don’t see why it would now. I don’t think it’s likely that Trump suffers a major hit from this unless Republicans come to believe that the charges will hamper his ability to win a general election.
ameliatd: Which is to say, it has to look like he might actually get convicted?
Or do you think there’s a scenario where he’s convicted and his base is convinced that it’s an unfair conviction and it won’t hurt him in the general?
alex: I think that’s totally possible, Amelia. I mean, Republicans last week were calling the case against Trump baseless well before the charges were spelled out.
ameliatd: I’m also curious, Alex and Nathaniel, whether you think another indictment — say, from the district attorney in Fulton County, Georgia — would make Trump’s supporters more or less convinced that Trump is the victim of a “witch hunt.”
nrakich: I think further indictments would make Trump supporters more likely to think that this is a “witch hunt” against Trump, since a “witch hunt” kind of implies a pile-on from all sides. But I also think they would make Trump supporters more likely to abandon him in the long term. You can think that someone is the victim of an unfair witch hunt and still think they’re too weighed down by drama to be your standard bearer.
ameliatd: Yeah, to some extent the proof is in the pudding — or whatever the legal version of pudding is. Bragg had the guts to file the charges, but now he’s really got to make them stick.
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