WASHINGTON – Former President Donald Trump faces serious charges in two cases over whether he attempted to subvert the Constitution by overturning the results of a fair election and illegally remain in power.
Yet it’s a New York case centered on payments to silence an adult film actor that might provide the only legal reckoning this year on whether the Republican tried to undermine a pillar of American democracy.
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Trump is charged in the hush money case with trying to falsify business records, but it was hard to tell that as the trial opened Monday.
Lead prosecutor Matthew Colangelo wasted little time during opening statements tying the case to Trump's campaigning during his first run for the presidency. He said the payments made to Stormy Daniels amounted to "a criminal scheme to corrupt the 2016 presidential election."
Whether the jury accepts that connection will be pivotal for Trump's fate. The presumptive GOP nominee faces charges related to falsifying business records that would typically be misdemeanors unless the alleged act could be tied to another crime. Prosecutors were able to charge them as felonies because they allege that the false records were part of an effort to cover up state and federal election law violations — though that’s still not the type of direct election interference that Trump is charged with elsewhere.
Trump has referred to the New York trial and the three other criminal cases against him as a form of election interference, suggesting without evidence that they're part of a Democratic plan to undermine his campaign to return to the White House.
“I’m here instead of being able to be in Pennsylvania and Georgia and lots of other places campaigning, and it’s very unfair,” he told reporters before Monday's court session.
While the charges are felonies, the New York case is seen as the least consequential against the former president. In the two election cases, Trump is accused of more direct involvement in trying to overturn the results of the 2020 election.
He faces a four-count federal indictment in Washington in connection with his actions in the run-up to the violent attack on the U.S. Capitol by his supporters on Jan. 6, 2021. He and others were charged in Georgia with violating the state’s anti-racketeering law by scheming to illegally overturn his 2020 loss to Democrat Joe Biden. He has pleaded not guilty to all the charges against him in those cases and a fourth charging him with mishandling classified documents.
All the other cases are tied up in appeals that are expected to delay any trials until after the November election. If that happens, the New York case will stand as the only legal test during the campaign of whether Trump attempted to illegally manipulate an election — and the case isn't even about the election results he tried to overthrow.
On Monday, Trump's attorney quickly moved to undercut the idea that a case in which the charges center on record-keeping could seriously be considered an effort to illegally undermine an election.
“I have a spoiler alert: There’s nothing wrong with trying to influence an election. It’s called democracy,” said his attorney, Todd Blanche. “They put something sinister on this idea, as if it’s a crime. You’ll learn it’s not.”
Some legal experts monitoring the cases against Trump said they were skeptical of connecting the payments to a form of “election interference.” Doing so also runs the risk of diminishing the gravity of the other charges in the public mind.
Richard Painter, a University of Minnesota Law School professor and former associate White House counsel during the George W. Bush administration, said he believed the facts of the case met the evidence needed to determine whether a felony had been committed that violated campaign law, but added, “The election interference part, I have a little bit of trouble on this.”
Richard Hasen, a UCLA law school professor, said the New York case does not compare to the other election-related charges Trump faces.
“We can draw a fairly bright line between attempting to change vote totals to flip a presidential election and failing to disclose embarrassing information on a government form,” he wrote in a recent Los Angeles Times column.
In an email, Hasen said New York prosecutors were calling the case election interference “because that boosts what may be the only case heard before the election.”
Some said prosecutors’ decision to characterize the New York case as election interference seemed to be a strategy designed to raise its visibility.
“When (Manhattan District Attorney) Alvin Bragg calls it an election interference case, that’s more of a public relations strategy,” said Paul Butler, a professor at Georgetown Law and former federal prosecutor. “I think there was concern that people were looking at the other prosecutions and they weren’t discussing the Manhattan case.”
Declaring the case a hush money trial made it seem less important than the others and “so they’ve styled it ... as a case about election interference. But again, what he’s charged with is falsifying business records.”
Trump has denied having a sexual encounter with Daniels and his lawyers argue that the payments to Cohen were legitimate legal expenses.
The key question in the prosecution's argument is why were the business records falsified, said Chris Edelson, an American University assistant professor of government. Their allegation is that “Trump was preventing voters from making an informed decision in the election.”
It's an argument he believes prosecutors can make. “I think that the prosecutors will have to explain this to the jury. I don’t think it’s impossible to do,” he said.
The New York trial revolves around allegations of a $130,000 payment that Michael Cohen, Trump’s former lawyer and personal fixer, made to Daniels to prevent her claims of a sexual encounter with Trump from becoming public in the final days of the 2016 race.
“Candidates want to suppress bad news about them. But there’s a difference between trying to limit people knowing about that information and about breaking the law to keep them from finding out,” said Andrew Warren, a former state attorney in Florida who was suspended by Republican Gov. Ron DeSantis and is running for his old office while his court battle continues.
Warren said he believes the case has always been about more than the payments. If it is accepted as a hush money case, “Trump wins," he said. "If there was intent to deceive the voters, the prosecution wins.”