I can't remember the last time I was more upset about a criminal trial than Donald Trump's Manhattan trial. Prosecutors have vividly painted the former president as a despicable and dishonest person, and despite the damning testimony against Trump, the daily pilgrimage of Republican politicians to the Manhattan courthouse is a sign that the Republican Party is a wounded soul. It shows that it has.
At the same time, the underlying legal theory supporting the prosecution's case remains questionable. The facts may be clear, but the law is never. And that's because a jury found Trump guilty before the election, an appeals court vacated the conviction after the election, and millions of Americans, many of them non-MAGA, faced yet another crisis of confidence in American institutions. ing.
Let's talk about the scary facts first. Stormy Daniels' testimony, more than any other witness, fleshes out prosecutors' theory that President Trump ordered Michael Cohen to repay Daniels to protect his campaign, then fraudulently disguised the repayments. did. It became an answer to an important question: why did the famous playboy, who has been boasting about his relationship with his friend's wife, suddenly start trying to hide the details of his encounter with a porn star?
Consider your timeline. On October 7, 2016, the “Access Hollywood” story broke. The Washington Post released an infamous recording of President Trump saying to one of the show's hosts, Billy Bush: You can do anything. ” Trump also said he could grab women by their genitals. “You can do anything.”
The next day, a representative for Mr. Daniels told the National Enquirer that Mr. Daniels was willing to go on the record about his encounter with Mr. Trump. We now know from Daniels' sworn testimony that her story essentially affirmed the “Access Hollywood” tape. Trump used his star power to attract Daniels and exploit her.
At trial, she didn't testify about a flirtatious or fun encounter with Trump. She testified about something much more harrowing: He invited her to his hotel room, and when she went to the bathroom and came outside, she found Trump lying on his bed wearing only his boxers and a T-shirt. She didn't claim he forced himself on her, but she said she left “shaken” and embarrassed.
Her testimony was so ridiculous and disgusting that the judge admonished the prosecution, but it also helped explain the whole hush-money scheme. Of course, President Trump doesn't want the media to run an article days after the “Access Hollywood” tape that immediately contradicts the message that Trump just had a “locker room conversation.” Dew. Instead, he was describing how he actually acted.
Mr. Trump has never been averse to the so-called “catch-and-kill” process of spending money to suppress negative stories. He previously collaborated with National Enquirer CEO David Pecker on Karen McDougall's month-long affair with Trump in 2006 and 2007. I have purchased harmful articles, such as his article. But the timing and details made Daniels' article particularly damaging.
All of this is morally repugnant. And we can now place Daniels' testimony within the larger context of what we know about Trump. The jury found him liable for the sexual abuse and defamation of E. Jean Carroll. Now we've heard additional sworn testimony that Trump is not only dishonest, but fundamentally predatory.
It is against this backdrop that Republican politicians marching into Manhattan, sometimes wearing Trump-inspired blue suits and red ties, are condemned to march in support of Mr. Trump. It is something that should be done. It is frightening that so many Christians still believe that he is the God-appointed savior of America.
But horrible is not a synonym for criminal, and the horrific facts of this case did not allay any of my legal concerns. It was clear from the start that the facts of the case were horrible, but the law is clouded. The reason is simple: to secure a felony conviction, prosecutors must prove that Trump falsified business records with “intent to defraud, including intent to commit, or aid or conceal the commission of, another crime.”
But what is another crime? This is where things become unstable. In court filings, prosecutors alleged that Trump committed or attempted to cover up federal and state election law crimes, as well as state tax crimes. But the election law theory has real weaknesses. Although I have long believed that hush money schemes violate federal criminal law, I also recognize that the underlying legal theory has not been adequately tested.
Mr. Cohen, Mr. Trump's former lawyer and fixer, also pleaded guilty to federal crimes in connection with this same scheme, but a guilty plea does not have the same value as a legal precedent. There is no clear federal case law on the issue, and the Justice Department has not brought federal charges against Trump on these grounds either under the Trump administration or under President Joe Biden. Additionally, state election laws cited by prosecutors may supersede federal law and therefore do not apply to this case.
I'm not alone in having these concerns. Mark Pomerantz, a former prosecutor in the Manhattan District Attorney's Office, said the case was “too high risk under New York law” and that “New York state appellate courts have not previously upheld (or rejected) this interpretation of the law.” ),” he pointed out. Many legal analysts, including those who are not friends of Mr. Trump, have expressed serious concerns about the case, primarily because it would be difficult to link the falsified records to additional, separate crimes. It's for a reason.
To be clear, an untested legal theory is not the same as a weak or apparent theory. If Trump is convicted, there is a good chance the conviction will survive an appeal. But the alternative is terrifying. Imagine a scenario in which Mr. Trump is convicted in a court of law, Mr. Biden denounces him as a felon, and the Biden campaign runs an ad mocking Mr. Trump as a convict. Although Mr. Biden won by a narrow margin, if the conviction is overturned by an appeals court, this case could very well undermine confidence in our democracy and the rule of law.
I'm not so worried about pure partisans. Some of President Trump's opponents may believe that the ends justify the means. For them, the prosecution has value, even if it ultimately fails. And even if upheld on appeal, the MAGA base will not believe the conviction is justified.
But deeper issues are at stake. Our court system does not exist to guarantee a political outcome, no matter how much we want President Trump to lose the election. And defeating Trump by supporting a criminal prosecution that failed on appeal would further exacerbate the distrust that made him president in the first place and helped maintain support for the Republican Party.
Mr. Trump's immorality and corruption should have disqualified him from Republican voters nearly a decade ago, but now there is even more sworn testimony that Mr. Trump is every bit as bad as we feared. But at the same time, it does not defend liberal democracy through dubious criminal prosecutions.
Some smart lawyers disagree with me, believing that the prosecution is on solid legal footing. I really hope they're right. But I am deeply and disturbingly concerned. A terrifying man is the target of America's judiciary, but immorality alone does not make him a criminal.
This article originally appeared in The New York Times.