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 individual ￼limit at $2,700.
A criminal conviction must meet the standard of guilt “beyond a reasonable doubt”; and considered in that light, the Bragg indictment was exorbitant and plodding, but most of all it was improbable. The payoff to Daniels happened in late October 2016, when Trump had weathered starker threats to his political survival. He was likely buying protection from his wife’s eyes and ears, more than from the voters, many of whom had already forgiven him for revelations of behaviour on similar lines. (An “Access Hollywood” tape had leaked earlier in the same month, with Trump’s dirty talk about the perks of being a star. The same tape was used against him as evidence in the Carroll case.) In an indictment so stretched, the gamble is that a jury will think: “Surely one of such a multitude of charges must be true!” But the only presidential candidate to be tried on comparable charges, the Democrat John Edwards who ran in 2004 and 2008, was a bigger spender than Trump, taking $900,000 from two rich donors to conceal his affair with Rielle Hunter, and even so the jury acquitted him on one charge and deadlocked on the remaining five.
Here is how the charges read: “The defendant Donald J Trump repeatedly and fraudulently falsified New York business records to conceal criminal conduct that hid damaging information from the voting public during the 2016 presidential election.” And again: “Falsifying business records in the first degree.” And the sinister progression: “With intent to defraud and intent to commit another crime and aid and conceal the commission thereof.” We are looking at cheques (signed by Donald Trump starting in February 2017, when he was already president) for legal services that his fixer Michael Cohen never performed; invoices for legal services where again none were performed; and false entries in Trump’s personal bookkeeping. The Biden justice department had considered this case and thought it not worth the effort. The Federal Election Commission likewise gave it a pass.
But Bragg was cornered, in a way, by his own anti-Trump publicity in running for district attorney, and the corner got tighter in March 2022 when two of his prosecutors resigned to protest his refusal to bring a different anti-Trump case to trial. That case stemmed from the evidence of gross overestimates of the net worth of properties which the Trump Organization listed to obtain bank loans. Trump was using the loans, the rejected indictment would have said, to get a footing in the 2016 election. One of the angry prosecutors, Mark Pomerantz, leveraged his protest to enter public life immediately after his resignation, with an anti-Trump legal memoir. “By writing and releasing a book in the midst of an ongoing case,” the president of the New York District Attorneys Association commented, “the author is upending the norms and ethics of prosecutorial conduct and is potentially in violation of New York criminal law.” Pomerantz had a solid reputation to squander but he could not resist the temptation. There is something in Trump for everyone. Anyway, Bragg was in this game for better or worse from his own campaign promises and his fealty toward the Manhattan liberal circles that sided with the departed prosecutors: the New York Times had published the text of the Pomerantz resignation letter, the Washington Post assigned a review of his memoir to a lawyer from Robert Mueller’s special counsel inquiry, and Politico concluded that Bragg’s hesitation was “likely to further embolden Trump”. Even Bragg’s wife was known for her tweets against Trump (now deleted).
The 6 January Capitol riot might still become the basis for a separate charge against Trump – that, too, is a longstanding Democratic hope – but “incitement” is notoriously hard to prove, and so many of the party’s Last Days of Trump balloons have hyper-inflated, sagged and collapsed! There was the Russia collusion story, clenched by the supposed Russian hacking of the Democratic Party server, and then the yearning for some proof of deeper ties to Russia, including the idea that Trump was “Putin’s agent” – none of which panned out in the 2019 special counsel’s report. Then there was the chase after evidence of tax fraud, which, once the New York Times caught up with the records, amounted to the ordinary juggling and tax avoidance of the very rich. So much Trump on the menu, and never a proper meal.
The truth is that Donald Trump is a bad person, simply as a person – supernaturally selfish, transcendentally vulgar. But attempts to give him a wider description have failed for a good reason. It’s only Trump in there: with no long-term planning, an alarming incapacity for consecutive thought, and a scattered and impulsive interest in government. There is no such thing as Trumpism. Of the usual liberal epithets – racist, fascist, and sociopath – the third is correct but it makes Trump only an extreme case of a normal condition in American politics. The real trouble is shallower. The Democrats have been smarting for seven years from the wound inflicted on their amour-propre by Trump’s victory over Hillary Clinton, who spent twice as much money only to lose eight out of twelve battleground states in a nerveless campaign. The Democrats have never accepted that Hillary was a strong political worker who lacked political talent, and she was running against a man who was discovering new terrain in his already proficient command of crowds.
The superstitious horror with which the Democrats recall the 2016 election may partly explain Bragg’s reluctance to name the underlying crime: an omission that is not unprecedented, but obviously disappointing in a case of this importance. The suspense gives Bragg no tactical advantage at a later point. In the background in Georgia, however, a far more promising case may soon emerge. Since the indictment of a declared presidential candidate will be read as a political act, why not give priority to an instance where Trump’s election meddling was rebuffed by members of his own party? He said in his 2 January 2021 phone call to Brad Raffensperger, the Republican Georgia attorney general who had just told him that he legitimately lost the state, “All I want to do is this. I just want to find 11,780 votes.” In other words (the gangster grammar needs the listener to fill in the blanks): Find me those votes, by any means you care to employ. Raffensperger saw what was happening and he refused. In Georgia, Trump went a mile closer to plain outlawry than anything extractable from New York. This was a phone call to an elected official, aimed at capturing the election while the votes were still warm. But Trump equivocates, he doesn’t quite say “manufacture the votes”; just as he didn’t tell Volodymyr Zelensky, in the 2019 phone call that triggered his first impeachment, “Help me get the dirt on Hunter Biden and I’ll send you the weapons shipment I’ve put on hold.” A criminal construal is, if anything, more plausible in the Georgia case than it was with Ukraine. Besides, an American president strong-arming a foreign leader is a predictable event, even if the deed is normally done by proxies: Joe Biden did it for Barack Obama in 2016 when he warned Ukraine’s then-president Petro Poroshenko to fire a prosecutor the US didn’t like or else forfeit $1 billion in US loans. But Trump was doing this at home, in a presidential election. He was robbing Georgia voters of the assurance of fairness in a free election.
Apart from the battery and defamation verdicts, the 34-count indictment in Manhattan, and the continuing grand jury investigation by the district attorney in Georgia, a new federal special counsel has been detailed to check the possible criminality of Trump’s failure to return the classified documents he kept in a personal safe at Mar-a-Lago. The papers were seized in August 2022 in a raid by armed FBI agents, but the scandal of Trump’s “theft” was dimmed by the discovery in January of errant classified documents, in unnamed quantities, in Biden’s private garage in Wilmington, Delaware. Soon after, a second Biden stash was found in the DC office associated with his professorship at the University of Pennsylvania in 2018 and 2019. The special counsel on the Mar-a-Lago documents case, Jack Smith, is also following leads that may connect Trump more directly to the 6 January riot.
None of these criminal trials would be easy. Georgia seems to offer the best chance for a vindication that looks like justice, but of all the possibilities, Bragg’s was certainly the weakest. And his late decision to bring the indictment at all – only weeks before the statute of limitations would have ruled out prosecution – heightened the impression of a forced yet oddly improvised proceeding. This view of the matter utterly escapes the liberal-corporate media, intent as they are on demolishing Trump with whatever weapons come to hand. A symptomatic headline for a New York Times story in April: “The Trump Mug Shots We Deserve.” The zone of speakable thoughts in the broken Republican Party had just begun to stray from Trump when the indictment turned a protective sentiment back to his side.
Trump’s crudeness, his personal vindictiveness, and his wide streak of cruelty place him in a different category of uncleanness from the pay-to-play morality of the Clinton Foundation or the Biden family’s grifting with Chinese, Ukrainian, and other foreign companies to cash in on Joe’s vice presidency. Hence the eagerness among Democrats, sometimes bordering on one-upmanship – from state to state, from state to federal – to have him tied up, trussed, and stuffed in a small room before he gets a shot at a second term. But a candidate not yet convicted for a felony can still run for president.
The Manhattan judge for the Bragg indictment has set the next hearing date on 4 December. This means that the trial, if it happens, will take place concurrently with the major party primaries; and for the Republicans, Trump will again be a headliner without peer. The liberal-corporate media, now an all-but-declared political asset of the Democratic Party, have done all they could to discredit his nearest competitor, Governor Ron DeSantis of Florida. A similar tactic had a successful tryout in last year’s midterm races, when Democratic groups spent $20m to support Trump-backed primary candidates they thought they could beat. It worked in 2022, but Democratic realpolitik had an earlier test in 2016, when the party cognoscenti very much wanted to run against Donald Trump. What makes them so sure it will come out better against Trump the indictable than it did against Trump the laughable? This excessively clever strategy also trades a continued hold on the White House — just one third of the government — for the undoubted confusion and chaos that Trump on trial will provoke in the intervening months. Meanwhile, with a dedication to ratings and clicks unaltered from 2015, CNN broadcast a Trump Town Hall on 10 May as their first television event of the election season. The moderator held his lies in check but the crowd was with him.
The Democrats, for their part, have only Biden on offer. Already showing his age at 80, he will be two years weaker in mind and body when he begins his second term; but he made his candidacy official on 25 April, with a slogan that manages to be at once trite and ambiguous: Finish the job. The US government lately printed $5trn in pandemic stimulus money; the inflationary tally isn’t yet in from that safety-drop; but the administration says it is all-out for climate action while it simultaneously vows to send Ukraine more billions for bullets, drones, interoperable targeting, and tanks that run on gallons per mile. In foreign policy the US remains a one-party state: the discovery of our latest “good war,” just six months after the US withdrawal from Afghanistan, has become (alongside an anti-China policy of uncertain dimensions) the sole bearer of unresisting bipartisan concord. On all other issues, the culture-maddened far right believes that Americans will lose their native birthright forever unless drastic protective measures are intensified. Meanwhile, the left-liberal side has never shown a more arrogant pride in its own good intentions and its demonstrated capacity to silence those who disagree. In a time that needs hard thinking, and for more than America’s sake, we are back to spending most of our time on Trump.