Donald Trump will make history in a New York courtroom on Monday: He will be the first former US president to face criminal proceedings.
And it raises fresh questions for the likely Republican presidential nominee in November, even as he is busy building a political brand that has so far seemed immune to allegations of wrongdoing.
Trump is accused of falsifying business records to cover up payments he made to porn star Stormy Daniels during his first run for the White House in 2016 in exchange for maintaining her silence about an alleged affair.
It’s a fairly complicated, document-based case in which prosecutors must convince jurors that accounting errors were made with the goal of illegally influencing an election, Jessica A. Levinson, director of the Public Service Institute at Loyola Marymount University School of Law, said in an interview.
And while some experts view the case as a case of election interference, it is neither the most grave charge against Trump nor the one that prosecutors can most easily prove, Levinson says.
“This case is being given more weight than it should or could have,” Levinson said. “It’s meant to be a precursor, a referendum on Trump. And it’s a state criminal case. It’s nothing more, it’s nothing less, but the attention it’s getting is obviously excessive.”
“For people who think Trump needs to be held accountable, all eyes are now on this one business records case,” she added. “When you think about the things that have done the most damage to our democracy, this case is probably not the one that should have been dealt with first.”
The outcome of the trial could affect voters’ perception of the other charges, Levinson said.
The case is one in four against Trump These were criminal charges, two in state court and two in federal court. A state indictment in Georgia accuses him of conspiring to annul the election results in that state.
The two cases in federal court include an indictment related to Trump’s efforts to overturn his defeat in the 2020 presidential election, which culminated in the attack on the U.S. Capitol on January 6, 2021, and another federal case accusing Trump of improperly retaining classified documents after leaving office.
Election interference?
Norm Eisen, a legal analyst who served as Democratic co-counsel on the House Judiciary Committee during Trump’s first impeachment trial for soliciting election interference from Ukraine during the 2016 election, said the New York state case must also be viewed as an election interference case.
Levinson, an expert in the law of the political process, including campaign finance law, agreed but said the allegations were not on the same level as those related to attempts to overturn the results of the 2020 election.
The payments to Daniels were intended to influence the 2016 election by withholding significant information from voters, she said, and began shortly after video footage surfaced of Trump bragging about grabbing women’s genitals.
Prosecutors believe that allegations of infidelity toward a porn actor would have further weakened Trump’s support among female voters and that the payments were intended to prevent this.
The case involves violations of election law and campaign finance law, Levinson said.
“This is not the same as ‘I don’t want you to count the Electoral College votes,'” she said, referring to allegations in other election interference cases. But “in my view, this is about withholding a story from voters shortly after they heard the ‘Access Hollywood’ tape and shortly before they went to the polls.”
Trump has consistently described this case – like all criminal charges brought against him – as a political witch hunt by the Democrats to weaken a political rival.
At a fundraiser appeal On Friday, Trump repeated the message.
“All hell breaks loose on MONDAY!” the email said. “BIDEN AND HIS ALLIES WANT ME TO BE PUT IN JAIL! AMAZING DEMOCRATS ARE WILLING TO SPEND MILLIONS WHILE I HAVE TO DEFEND MYSELF IN COURT!”
While this criticism ignores the high standard of proof required to bring charges and does not disprove the allegations, this type of all-caps accusation has proven effective in keeping many Republican voters on board.
Trump campaign spokespeople did not respond to messages seeking comment for this article.
In the courtroom
The trial begins Monday with jury selection and could last several days or longer.
When actual arguments begin, the case will depend on whether Manhattan District Attorney Alvin Bragg can prove to the jury that the irregularities in Trump’s business records were used to commit another crime.
Paying hush money is not illegal in and of itself, Levinson said, so the violation of campaign finance law was crucial to the case.
Bragg and his team should try to simplify the case and “repeat” that the payments were intended to influence the election, she said.
Trump’s defense will likely focus on Michael Cohen, the former vice president of the Trump Organization and one-time personal adviser to Trump, who allegedly sent the payments to Daniels.
Cohen, who served a sentence in federal prison for tax fraud and perjury, has publicly described Trump’s role in the alleged plot, but his credibility is a major question following his convictions and public retraction of his testimony.
Electoral impact of conviction unclear
For more than eight years, Trump has managed to fend off and even exploit scandals that were once thought to be fatal to political candidates. He has so regularly refuted predictions of impending political collapse that it became a cliché.
He has so far suffered no significant damage from the criminal proceedings, including in New York, and has even derived some political benefit from them.
He said the prosecutions were politically motivated attempts by Democrats to weaken their main political opponent. At least Republican voters seem to largely accept this argument, allowing Trump to Coast for nomination earlier this year.
And the criminal charges have not yet seriously damaged Trump’s reputation among general election voters. He trails President Joe Biden by a narrow margin in several swing states and in national polls, but voters have told pollsters that their minds could change if Trump is convicted.
However, there is reason to doubt that a conviction would have any impact on Trump’s standing with voters, said Seth Masket, director of the Center on American Politics at the University of Denver, in an interview with States Newsroom.
Political observers wondered throughout 2023 to what extent the four charges against Trump would affect the former president in the 2024 primaries, Masket said.
The allegations, particularly those made in New York that first came to airy, actually seemed to assist Trump in the race for the nomination. His competitors in that race largely defended Trump.
Even if he were convicted, Republican voters in a polarized country would be more likely to side with Trump than with a justice system that he describes daily as corrupt, Masket said.
“Everything we’ve seen so far suggests that any bad thing that happens to him will cause Republicans to rally behind him and validate his view that the system is out to get him,” he said. “The idea that a conviction would be viewed across party lines as completely legitimate and impeccable, I think is pretty unlikely.”
Eisen, who expects Trump to be convicted in the New York case, disagrees. The spectacle of a conviction alone would break Trump’s influence on voters.
“When a jury of Trump’s colleagues – and their colleagues, ordinary Americans – sits in court and delivers a verdict when they do that, it’s a whole different order of magnitude,” Eisen said. “And when you combine that with a sentence after a verdict like that, it’s really a whole different thing.”
After the first trial
But if Trump is not convicted or the charges are reduced to a minor offense, that could shield him in the eyes of voters from the other pending cases, Levinson says.
Since Trump has for years described the legal proceedings against him as politically motivated, winning the first case to go to trial could assist reinforce that message, she said.
“If he is not convicted of the crimes, it will be a huge victory for him because he can say, ‘Look, any case against me is baseless,'” Levinson said. “I don’t think legally this has anything to do with the other cases. But politically it would be a huge victory for the former president.”
It is still unclear what historical significance the first trial of a former president will have, Masket said. But the idea that Trump remains a grave presidential candidate – and thus somewhat immune from criminal prosecution – is a worrying sign for US democracy.
“We keep getting the message that no one is above the law, except maybe this one guy,” Masket said. “And that’s a problem. It just undermines a lot of people’s trust in the democratic system.”
