Editor’s note: Donald Trump has been charged over his retention of national security documents, and will appear in court next week in Miami. This is his second indictment and the first ever federal indictment of a former president. In this article, originally published on 13 May, David Bromwich looks at how the criminal charges could send the former US President to prison – or propel him into the White House.
“All publicity is good publicity,” according to a familiar commercial maxim that Donald Trump seems to have lived by. But the happy truism may have found its limit on 9 May, when a Manhattan jury found him liable for sexual abuse and defamation, and ordered him to pay $5m to his accuser, the former Elle magazine columnist E Jean Carroll. The standard of “preponderance of evidence” in a civil suit was sufficient to favour the plaintiff over the defendant regarding an incident in the mid-Nineties at the designer clothing store Bergdorf Goodman. The accusation as well as the verdict appeared straightforward; though Trump, being Trump, is likely to draw out the process by an appeal. Yet this was the second — and probably the less important — of his courtroom battles in New York City alone.
On 4 April, in a Manhattan criminal court, Trump had pleaded not guilty to 34 felony charges, and reasserted his tight hold on the passions of the US media and the political class. The district attorney, Alvin Bragg, arrived at that number by marking up 34 variations on a single alleged course of actions: “orchestrating a scheme” to conceal “criminal conduct” that included false descriptions on checks, invoices, and business ledgers. The scheme was said to encompass, among other details, an agreement with American Media, Inc (now A360 Media, owner of the tabloid National Enquirer) to suppress a story about Trump’s affair with the Playboy model Karen McDougal; and a $130,000 payoff to Stormy Daniels, a porn star whom Trump wanted to stop from talking about their previous relationship. The Daniels transaction came out of a non-disclosure agreement, quite common and not in itself a crime. A second-degree charge of falsifying business records is classified as a misdemeanour. Thirty-four falsifications become first-degree – and therefore felonies – only if they are repurposed as evidence of an underlying crime. Convicted in that way, Trump would be disqualified from holding political office.
So Bragg’s indictment had to allude to an underlying crime, a felony, which for the moment he chose not to name. But no one doubts that the crime in question is a violation of election laws: Trump (the argument would run) illegally choked off public knowledge of a sordid history that might have impaired his election chances; and by doing so, he defrauded American voters. Possibly his crime was that the $130,000 – to pick an illustration at random — was a disguised contribution to his own election campaign. He did want to be elected and, though you can contribute a lot to a Political Action Committee, this was a personal contribution and therefore in violation of the 2016 law that had set the…