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Speaker 1: From the Opinion pages of the Wall Street Journal, this is Potomac Watch.
Kyle Peterson: The first criminal trial of Donald Trump begins in New York. What’s happened so far, and what are the weaknesses of the case being built by Manhattan District Attorney Alvin Bragg? Welcome. I’m Kyle Peterson with the Wall Street Journal. We are joined today by my colleagues, Columnists Kim Strassel and Bill McGurn. An extraordinary moment for the country, the first criminal trial of a former US president who also happens to be the presumptive Republican nominee for the presidential election that is now only 7 months away, and many polls show him beating Joe Biden. The 34 felonies that are being brought here in New York relate to the 2016 hush money payment that Donald Trump made to Stormy Daniels as hush money for an alleged affair in 2006, and then the repayments of that, and the internal accounting of those repayments to Trump fixer Michael Cohen. But the atmosphere this week at the court seems to belie the magnitude of what’s going on.
When the court opened on Monday, there was some preliminary rulings by Judge Juan Merchan. For example, he said that prosecutors would not be able to play the Access Hollywood tape for the jury, but by the afternoon, we were straight into jury selection. First group of 96 people who went through that screening were asked whether they could be fair and impartial, and apparently more than 50 raised their hands, and were then excused. We’re back doing that again today, potential jurors being asked what they do for work, what their news sources are, if they’ve ever been to a Trump rally, and so on. The biggest notable piece of information, the biggest controversy on Monday seems to be whether Donald Trump was nodding off a little bit during this process. Here’s a reporter from Courthouse News, “Tough to see the screen in the overflow room, but I swear Trump is nodding off at the defense table. His chin just hit his chest. Then his head shot back up. We’ve all been there.” Let’s listen to a bit of President Trump’s brief remarks after leaving the courtroom yesterday.
Donald Trump: If you read all of the legal pundits, all of the legal scholars today, there’s not one that I see that said this is a case that should be brought or tried. It’s a scam. It’s a political witch hunt. It continues, and it continues forever, and we’re not going to be given a fair trial. It’s a very, very sad thing. In addition, as you know, next Thursday, we’re before the United States Supreme Court at a very big hearing on immunity. And this is something that we’ve been waiting for a long time, and the judge, of course is not going to allow us. He’s a very conflicted judge, and he’s not going to allow us to go to that. He won’t allow me to leave here for 1/2 a day, go to D.C., and go before the United States Supreme Court.
Kyle Peterson: Kim, what do you make of what has happened so far in the beginning of what could be a trial of five or maybe six weeks?
Kim Strassel: So I think this shows very clearly we could be in for even longer than five or six weeks. It was really remarkable the degree of dueling motions that were introduced on the first morning having to do with everything, a request that the judge have to recuse himself, which he refused to do, these requests about Donald Trump being allowed to attend other hearings in other court trials. In particular, he was speaking there about the Supreme Court, and the judge said, “No. This court is important. You must be here instead.” Also, issues, as you noted about what can be allowed in the courtroom, this Access Hollywood tape, while the Trump team was victorious in that, there were other aspects of Donald Trump’s work, for instance, with the National Enquirer, et cetera, that the judge said that he was going to allow to be put in.
And then of course the jurors, when you have 96 jurors come in, and immediately 50 of them are excused, it gives you a sense of the depth of the challenge of trying to find people that can actually judge a trial about a former president and leading presidential candidate now in an impartial way, and how slow this process can be. By the end of the day, after you’d had those 96 come in, 50 of them were immediately excused because of that. You’d only had 11 of the jurors questioned. A further 2 had been excused, even though those that are remaining, it’s not clear there will actually be on the final jury. There’s still yet more to come evaluating them. But just going through the process of getting a potential jury pool is proving to be very slow. You add in here again, ongoing controversies, jury selection, upcoming Passover holiday, I think this could actually last quite a long while.
Kyle Peterson: Let’s dig into some of the details. And as a reminder of the facts, in the run-up to the 2016 election, Donald Trump’s fixer, Michael Cohen paid $130,000 to Stormy Daniels to keep quiet. And then over the course of 2017, he was reimbursed by Donald Trump, and then some. The way that that was booked internally was according to the prosecutor, “Disguised as a payment for legal services.” And Bill, what we have here is the indictment included 34 counts. Each of them is a charge for falsification of business records. And the way that you get to 34 is Alvin Bragg is charging each check, each ledger entry, each invoice from Michael Cohen separately. And one of the things that has been fascinating, and was not answered by the original indictment was how this can be a felony.
Normally falsification of business records is a misdemeanor in the state of New York, and it’s only a felony according to the law if the books are cooked with, “Intent to commit another crime, or to aid or conceal the commission thereof.” And the question Bill has been, “What is the second crime that Alvin Bragg is going to allege here?” Even if he hasn’t charged it, even if it’s not part of this case, there has to be a second crime. And it seems that the primary argument of the prosecution is going to be that President Trump falsified these business records in order to cover up a campaign finance violation, that the payment by Michael Cohen to Stormy Daniels was in effect a donation to the Trump campaign. And Bill, I wonder what you make of that.
Bill McGurn: It doesn’t really matter what I make of it. I think most legal experts have seen it as exceptionally flimsy. In fact, of all the cases against Donald Trump, I think this is arguably the flimsiest, at least in terms on legal grounds. Look, as you point out, at most what he did that they can prove was a misdemeanor. And there’s a two-year statute of limitations that has long since passed. So they came up with this novel theory, and the problem is if it’s a campaign violation or something, that would be a federal crime. But the federal prosecutors looked at this, and they refused to bring that action against it. So to go from a misdemeanor that has expired under the statute of limitations to 34 felony counts, I think it’s absurd. We haven’t talked about this. We’ll probably get into it later, but politically, I think this just helps Donald Trump. It’s obviously ginned up, and I think he’s right to say no one that wasn’t named Donald Trump would ever be charged like this.
Kyle Peterson: Hang tight. We’ll be right back in a moment. Welcome back. Kim, what do you make of this campaign finance violation that is being alleged here? And let me throw in also another second crime that Alvin Bragg has floated in court, which is essentially tax fraud. He says that because the repayment from Trump to Cohen was booked as income to Michael Cohen, Donald Trump grossed up the amount in order to keep Michael Cohen whole after paying about 50% in income taxes. And the result of this, according to the prosecution, is false filings in tax returns potentially to the state of New York, which he says would be the second crime that would be covered up by the falsification of the business records. But Kim, that’s an odd theory, because if I understand that correctly, that means that Michael Cohen paid more taxes than he otherwise would have. And the judge seems to think that legally that is not a distinction that matters, but it certainly makes it an odd form of tax fraud.
Kim Strassel: Yeah. It would be very odd to actually prosecute someone for overpaying taxes on illusory income. And this just seems to be another sob to Alvin Bragg who was noted, came up with the idea of what these second crimes might be after the fact to essentially make this stick. Look, to go back to the point about a campaign finance violation, this is where things get really absurd. And as Bill just noted, all of this is so conjured up. It’s so difficult. You begin with the fact that he’s essentially bringing charges related to paperwork, falsifying business records. He had to stretch what all of this was, because it would’ve been a misdemeanor. He’s getting lucky by the way too even claiming that this is a felony. He only was able to do that because the statute of limitations has also run on that as well too, and only because the judge essentially said he got a grace additional year because of COVID. Can he be doing this?
But then you look at the campaign violations themselves, and the problem is that they create this extraordinary catch-22, and one that’s already been litigated by the way, in a very high-profile case that had to do with John Edwards, who was a Democratic presidential candidate back in 2008. But here’s a problem with these charges. We have a federal law called the Federal Election Campaign Act, and it defines what a campaign donation is. So it explains that a donation is anything that’s influencing any campaign for federal office. And this is the basis of Alvin Bragg’s argument that this was a corporate contribution as it were to a campaign for a federal office, and therefore it’s illegal. But the problem with this is that the statute is also clear about what cannot be used as a campaign donation.
So it notes very specifically that money is not a donation if the obligation exists irrespective of a campaign. And this is meant to define the things that one can’t actually spend campaign money on. So for instance, if you go out, and you buy a $5,000 suit that you will look nice while you’re out on the campaign trail, you can’t use campaign dollars on that, because you’d have to buy clothing anyway, right? You can’t use your campaign donations to buy your country club membership, because while it might allow you to go hang out with other politicians, and help your political campaign, that obligation to belong to a country club was something that would happen that you would be arguably doing regardless of whether or not you were running. And that also applies here. This is where you get to the catch-22. By saying that this is a corporate campaign contribution, and thereby illegally, the flip side of that is that how else was Donald Trump meant to pay for this? Okay?
Because if he had used campaign donations to pay for this, he would be just as much at risk by prosecuting him, by claiming that he shouldn’t be using campaign donations to pay off a former mistress, because presumably he might be wanting to keep that information quiet regardless of whether or not he was in a campaign. And that was what tripped up prosecutors with John Edwards as his defense went in, and he’d been given a bunch of money by outside donors to maintain a mistress he had.
And his defense team said, “Look, we had lots of reasons to be paying her anyway, because we didn’t want John Edwards’ wife to know about this, and the political world to know about this.” And again, that had been private money that had been given to come up, and keep her quiet, essentially that mistress, and Trump’s in the exact same situation here. So on the one hand, they’re saying, “By giving this money privately, you broke campaign finance laws,” but the only alternative would’ve been to give it via his campaign, which arguably would’ve put him even more at risk for violating campaign finance laws.
Kyle Peterson: And to my mind, Trump has another argument that John Edwards did not. This is from the 2011 and Justice Department indictment of John Edwards. It says, “He is alleged to have accepted more than $900,000 in an effort to conceal from the public facts that he believed would harm his candidacy.” And obviously that’s a lot more money than we are talking about with the payment to Stormy Daniels, but also, that’s money that Edwards accepted as I understand it from donors, whereas in Trump’s case, the payment that Trump was making to Stormy was initially from Michael Cohen, but in the end, that reimbursement came through, and it was Trump’s own money being used to pay off Stormy. Another theory that Alvin Bragg advanced in court as the second crime, the thing that makes the falsification of business records a felony, I think this is worth mentioning Bill, even though the judge did not sign off on it, because it shows how Alvin Bragg is stretching, as you’ve described.
This other theory was that the falsification of the checks, and the ledgers, and so forth is a felony because Donald Trump intended to commit or conceal the falsification of other business records. And the argument there was that Michael Cohen made the payment to Stormy through this business called Essential Consultants, and he wrote, “Retainer,” on the paperwork for the wire transfer, and so forth. And the argument there to the judge was that Trump falsified these records in order to conceal the falsification of those records. To my mind, the judge rightly rejected that as a circular argument. And Bill, it does show though, I think to your point how the prosecution is stretching to try to turn this misdemeanor into a felony.
Bill McGurn: Yeah. The way I look at it, look, Alvin Bragg wanted to prosecute Donald Trump, and he found this misdemeanor, and then he concocted all these different legal theories that even liberal attorneys and observers of the law have criticized. And I think in some ways to take this enterprise seriously is to give it too much credit. I think it’s really outrageous what’s being done in New York courts, what’s being allowed, and even to take these things, and seriously answer them, I think they’re all fruit of the poison vine. And I think the real victim in the end is going to be the New York legal system, which looks like a kangaroo court. And I think what I’m most interested in is not this year in the election outcome, it’s next year when all the appeals and everything will be underway. And I wonder if it’s going to look very different when a lot of these things are thrown out as they should have been all along. This is a case that never should have been brought.
Kyle Peterson: Hang tight. We’ll be right back after one more break. Don’t forget. You can reach the latest episode of Potomac Watch anytime. Just ask your smart speaker, “Play the Opinion Potomac Watch podcast.”
Speaker 1: From the Opinion pages of the Wall Street Journal, this is Potomac Watch.
Kyle Peterson: Welcome back. I would second what Bill said before the break, because now we are in a trial court, before a New York Manhattan jury pool, and there are limits on the arguments that the judge is going to allow each side to make in the specifics of this narrow case. And I’m really interested to see how this fares on appeal if we get a conviction Kim. And imagine if Donald Trump wins the next election, or if he loses the next election. And if this case involves some theory that the payoff was a campaign donation, you can imagine that going all the way up to the Supreme Court, and maybe Trump would be vindicated in the end.
Kim Strassel: Yes. Look, I think this just gets to Bill’s point. This is extraordinary that we are at this moment, and especially with such a weak, and crammed case, that had to be rigged in so many ways to get to this moment, where we are finally in a courtroom. And the thing that is depressing about it is there’s really no good result here for having brought it. Look, in theory, you would hope that because this case is weak, it’s so phenomenally weak, and because of the terrible precedent it would set, that the jury will simply make it go away. But I think Donald Trump’s team is right that it is harder. It can be harder when you have a bright blue city like New York to get a jury pool, that is one that is more open to a highly well-known political figure, especially one that’s on the opposite side of the politics of most of New York.
It’s not impossible. I’d like to have some faith in our humanity, but I think the challenge is certainly harder. But remember, this is a criminal trial. So maybe you get one juror who’s a holdout, or refuses. Let’s say though that there’s some sort of a mistrial. Does the DA decide to take a second run at this, or does he decide it’s not worth it after all? Let’s say that there is a guilty verdict, and it goes up to the Supreme Court. Let’s say what happens by the way too, there’s a guilty verdict? What is Judge Merchan going to do with Donald Trump on appeal? Is he going to order him immediately to go behind bars? Is that going to be litigated as well too? It just goes to show, and I think this also, it rolls over to the other cases that have brought as well.
If you look at the Georgia case for conspiracy that has been brought by Fani Willis, just so many untested ideas there, not to mention the circus that has become her personal life, and the special prosecutor that she’d brought in to deal with that case, who’s now had to step aside, Jack Smith, again, the idea of the Department of Justice bringing these unprecedented cases about January 6th, and the documents as well too, when such issues have been handled differently in the past, there’s no good outcome of any of this. And it really shows the perils of lawfare.
Kyle Peterson: Bill we’ll give you the last word, but to Kim’s point, it only takes one skeptical juror to not convict. And that is what happened in that John Edwards case we’ve been referencing. The jury acquitted on one count, and was unable to reach a verdict on the others. And in that case, the feds decided that discretion is the better part of valor, and they decided not to try retry that case. And by the way, that experience I can only imagine is part of what fed into the thinking when federal prosecutors were looking at this same conduct that Alvin Bragg has now charged in state court, and they apparently decided to take a pass on it.
Bill McGurn: Yeah. You’re absolutely right Kyle, and I agree with Kim. I think none of these cases should have been brought. The general impulse of the Constitution is to leave the big issues to the voters. Let them sort it out. And I think your point on lawfare is well taken. There’s no outcome once you go down this road that’s good. Whether Trump is vindicated completely, or whether he’s found guilty, and faces jail time, none of it is good. It’s going to tear the nation apart. And that’s what happens when you go down this road. And I think it’s really regrettable. It looks like this election is becoming an Evelyn Waugh novel where out of control prosecutors do unbelievable things, and then Donald Trump walks out of the courtroom. And he’s trying his case in the court of public opinion, because he feels the courts and lawyers are stacked against him. I just think none of it’s healthy for America.
Kyle Peterson: Thank you, Bill. Thank you, Kim. Thank you all for listening. You can email us at pwpodcast@wsj.com. If you like the show, please hit that Subscribe button, and we’ll be back tomorrow with another edition of Potomac Watch.
