The case against Donald Trump is stronger than anticipated

This may well not be the last such experience in a courtroom for the former US president

Donald Trump arrives for his arraignment at the Manhattan Criminal Court in New York on Tuesday. Getty
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On Tuesday, Americans were presented with a remarkable split screen of former president Donald Trump sullenly submitting to the indictment process in New York and his familiar raging, furious performance before his closest friends and advisers back at his hotel in Florida. After decades of living in a grey zone of legality, taking full advantage of the myriad ways in which US law avoids punishing wealthy, white-collar defendants for financial offences and resorting, in the end, when necessary, to paying fines, Mr Trump’s fuzzy bookkeeping habits appear to have finally caught up with him.

Mr Trump's final posting on his bespoke social media network, Truth Social, captured his disbelief and outrage: “Heading to Lower Manhattan, the Courthouse. Seems so SURREAL — WOW, they are going to ARREST ME. Can’t believe this is happening in America. MAGA!

In the courthouse, though, the only words he spoke, reportedly softly, were "not guilty", in response to 34 felony counts involving false financial reporting in furtherance of a range of other alleged crimes.

It was fully anticipated that Mr Trump would face charges related to $130,000 in payments made by his former lawyer and self-declared "fixer" Michael Cohen to the former adult film actress Stormy Daniels to ensure her silence a few weeks before the 2016 presidential election. But it also includes similar payoffs of $150,000 to former model Karen MacDougall who also says she, like Ms Daniels, indulged in an extramarital affair with Mr Trump. That, too, came as no surprise.

However, District Attorney Alvin Bragg did present an unexpected theory that could significantly strengthen his case. The two hush-money payoffs could be tricky to turn into convictions. Defence attorneys will likely argue that statute of limitations has passed. And such payoffs for silence are, on their own, not illegal. Even the bookkeeping fraud charges alone constitute misdemeanours, and would often not be prosecuted.

But, as expected, Mr Bragg is insisting that all 34 counts involve felonies because, under New York law, financial misrepresentations in furtherance of separate crimes rise to the level of felonies punishable by up to four years in prison. Mr Cohen, for example, was sentenced to three years in prison for the payoffs he insists were at the behest of Mr Trump. There is no doubt that he made the payoffs and that Mr Trump subsequently over-reimbursed him, including for taxes the fixer would have incurred in the process.

But Mr Trump's lawyers have many potential arguments to counteract Mr Bragg’s assertions that the former president and his “fixer” were engaged in de facto unlawful campaign contributions or other underlying felonies. They could, for instance, try to argue that Mr Trump routinely made such payments to alleged former lovers throughout his career to protect his reputation and family, and that therefore these payments were routine reputational hygiene rather than covert campaign contributions.

Mr Bragg's surprising addition to the charges that argue the bookkeeping fraud was pursuant to second crimes (often federal ones, further weakening his argument), is to insist that these financial misrepresentations were also intended to break serious New York State laws, primarily state tax regulations. The District Attorney insists that participants in the scheme, including Mr Trump and Mr Cohen, had mischaracterised the true nature of the payments for unlawful tax avoidance purposes, a felony in New York.

It is a remarkable irony for a candidate who spent so much of his 2016 campaign encouraging chants of 'lock her up, lock her up'

These tax allegations give Mr Bragg's case a largely unanticipated safety net, whereby his state tax-avoidance allegations are more secure from the numerous potential weaknesses of his hybrid and untested state/federal campaign finance violation charges. If all else fails, in other words, he's got an excellent chance of winning on state tax-avoidance issues with few, if any, of the problematic complications of the anticipated charges.

The most sobering part of Mr Trump’s day in court may have come from the realisation that this may well not be the last such experience in the coming months. Mr Bragg's case has been widely viewed as significantly weaker than potential prosecutions of Mr Trump in Georgia for alleged election tampering and at the federal level for the January 6 uprising and attempted coup. Even the purloined “documents case” – often despaired of because classified documents were also found in the possession of President Joe Biden and former vice president Mike Pence – has reportedly been strengthened with new evidence.

According to The Washington Post, significant evidence suggests that even after all government and classified materials were subpoenaed, Mr Trump personally went through his boxes to try to keep some items in his possession unlawfully. Evidence is stronger than ever that he may have instructed one of his valets to move the boxes after the subpoena was received for similar purposes. Furthermore, texts and emails also help illustrate the key aspect of the case: clear evidence of intent to frustrate the government and obstruct justice. One of the strongest of these threads is potential testimony that Mr Trump allegedly showed these documents and maps to potential donors to impress them.

So not only does Mr Bragg's case seem stronger than anticipated, even as the classified documents potential charges join the January 6 and Georgia cases as serious legal vulnerabilities facing the former president. Mr Trump was also admonished by the judge in New York to “refrain from making statements that are likely to incite violence or civil unrest”.

Nonetheless, in his enraged speech in Florida, the former president said he was facing “a Trump-hating judge with a Trump-hating wife and family,” and singled out the judge’s daughter for special criticism. Both of Mr Trump's sons also denounced the daughter by name and with photos in angry social media posts. Over time, Mr Trump is going to have to learn to control himself or find himself in serious jeopardy of incarceration, despite the judge’s statement of commitment to free speech, especially for political candidates.

Meanwhile, Democrats continued to rack up practical political victories as Milwaukee County Judge Janet Protasiewicz defeated former state Supreme Court justice Daniel Kelly, meaning that liberals finally ended 15 years of right-wing control of the Wisconsin Supreme Court. This will have colossal impacts ranging from abortion rights to election procedures, including the 2024 presidential election, in a crucial swing state.

Images of Mr Trump sitting in the dock and then raging, surrounded by his closest supporters at his Florida hotel, don't merely contrast with each other. They present a remarkable irony for a candidate who spent so much of his 2016 campaign encouraging chants of "lock her up, lock her up", referring to his opponent Hillary Clinton. Who is on the way to getting locked up now?

Published: April 07, 2023, 7:00 AM
Updated: April 10, 2023, 3:50 AM