Dem
51
GOP
49
Donald Trump has gotten far in life with lots and lots of braggadocio and bluster. And, when that didn't work, he deployed his army of lawyers, some of whom actually got paid. But yesterday, Trump suffered a setback unlike any in his life, as a Manhattan grand jury, following an extensive investigation by Manhattan DA Alvin Bragg and two of his predecessors, voted to indict the former president on 30-plus criminal counts.
Trump hoped and expected that his presidency would be historic and, well, it certainly is now. Of the 45 men who have served as president, only one was arrested at any point in his life after being elected. That would be Ulysses S. Grant, who was arrested for... speeding. You might not have thought that possible in an era before automobiles, but it was, and Grant actually got multiple warnings before being popped (there were no tickets back then, and thus no insta-bail, hence the arrest). Needless to say, speeding is not a felony, and there was no chance that Grant's misdeeds were going to land him in prison. Not so for Trump's misdeeds, it would appear (more on this later).
Until fairly late on Thursday, Trump's attorneys were negotiating with Bragg's office over the circumstances of Trump's imminent arrest. There has been some suggestion that Trump wants to be arrested forcibly, and to be publicly perp walked into a police vehicle. The general idea is that those photos would be great for enraging the base and driving fundraising. We have considered this possibility for several days, and we're just not buying it. Trump has a giant ego and is extremely image conscious. We just can't believe that he'd allow himself to be humiliated in this way, no matter how much mileage he might think he can get out of the photos. Further, we imagine that Trump's Secret Service detail will insist upon on very orderly process, since they have to provide security for him even while he is in custody.
Speaking of the Secret Service, Bragg reportedly wanted to bring Trump in today, but his lawyers refused, saying the U.S.S.S. needs more time to plan. That seems very plausible to us, and further affirms the supposition that they are not going to allow a dramatic, disorderly arrest. The current expectation is that the former president will surrender himself in Manhattan on Tuesday, and will be arraigned that day.
Knowing full well that this was coming, and knowing that it could be used to gain money and political support, Team Trump has been making extensive preparations. Last night, they shifted into "go" mode. They have already initiated a barrage of fundraising e-mails, and there will be many more over the weekend and into next week. Some might say that when it comes to hitting people up for money, less is more. Clearly, Trump & Co. don't feel that way. One can also expect that Trump is going to be firing off scorching hot message after scorching hot message on his boutique social media platform this weekend. He might even fire up his recently restored Twitter, YouTube and Facebook accounts. That said, he'll need to be at least a little careful because anything that incites his supporters to commit violence will get his access restricted (or taken away again).
In addition, Trump already issued a public statement. You could easily have written it for him, if you had 2 minutes to spare. Or, if your schedule was too tight for that, you could have had ChatGPT write it. In other words, it says exactly what you think it does. Here's the opening paragraph:
This is Political Persecution and Election Interference at the highest level in history. From the time I came down the golden escalator at Trump Tower, and even before I was sworn in as your President of the United States, the Radical Left Democrats—the enemy of the hard-working men and women of this Country—have been engaged in a Witch-Hunt to destroy the Make America Great Again movement. You remember it just like I do: Russia, Russia, Russia; the Mueller Hoax; Ukraine, Ukraine, Ukraine; Impeachment Hoax 1; Impeachment Hoax 2; the illegal and unconstitutional Mar-a-Lago raid; and now this.And here's the closing:
I believe this Witch-Hunt will backfire massively on Joe Biden. The American people realize exactly what the Radical Left Democrats are doing here. Everyone can see it. So our Movement, and our Party—united and strong—will first defeat Alvin Bragg, and then we will defeat Joe Biden, and we are going to throw every last one of these Crooked Democrats out of office so we can MAKE AMERICA GREAT AGAIN!
There is only one thing about this that is interesting to us. And that is: "I believe this Witch-Hunt will backfire massively on Joe Biden." This is a rather different from "This Witch-Hunt will backfire massively on Joe Biden." Is Trump revealing a bit of uncertainty about whether or not he can climb out of the latest hole he's dug for himself? Seems that way to us.
Similarly, the response of Republican politicians, up and down the line, was predictable. Former VP Mike Pence, for example, said: "I think the unprecedented indictment of a former president of the United States on a campaign finance issue is an outrage." Gov. Ron DeSantis (R-FL) tweeted: "The weaponization of the legal system to advance a political agenda turns the rule of law on its head. It is un-American." Nikki Haley decreed: "This is more about revenge than it is about justice." Sen. Tim Scott (R-SC) described it as a "travesty." You get the picture.
Scott can shoot off his mouth all he wants and it doesn't matter. DeSantis could be in a trickier situation. If Trump shows up in court on Tuesday, all is well and good and DeSantis won't be tested. But he already announced that if Trump refuses to show up and the State of New York issues him an order to extradite Trump to New York, he will refuse to obey it, even though the Constitution explicitly requires governors to extradite people wanted in other states. If DeSantis refuses, Bragg will get a judge to issue a writ of mandamus ordering DeSantis to deliver up Trump. If DeSantis defies the court, then we will definitely be in uncharted territory, but we can't see how defying the courts will help DeSantis with independent voters.
It really is remarkable how fully Trump has the Republican Party wrapped around his finger. Historically, when people ran for office, particularly the highest office in the land, they were pretty happy to see their opponents suffer setbacks. Depending on the nature of the setback, those candidates might needle their opponent a bit, or they might remain silent for fear of looking gauche. But to defend that opponent, and in strident terms? Virtually unheard of.
The response from these individuals is also—and forgive us for using a highly technical term here—cow dung. None of these people knows exactly what the charges are. None of these people knows exactly what the evidence is. They certainly haven't the faintest idea what Bragg's motivations are, though it's worth noting that the DA actually pulled back from this prosecution for over a year until new evidence presented himself. Doesn't sound like someone determined to grind their political axe to us. In any event, the overall reaction from those on the right it why it's nearly impossible to take anything they say seriously, ever. They just spit out whatever they think the base wants to hear. Truth is not a concern, nor is what these folks actually believe. If either of those elements finds their way into one of these people's public statements, it's really just a coincidence.
As to folks on the left, there's been much celebrating from the rank and file, of course. As to Democratic politicians, they are largely silent. Joe Biden, for example, has not yet released a statement (though he or his staff will surely have to say something eventually). Those Democrats who have spoken up, like Rep. Adam Schiff (D-CA), have basically limited themselves to pointing out that nobody is above the law. We can find no gloating or grandstandting or predictions of imminent doom from any Democratic officeholder. That does not surprise us, as there's really no upside in it. If Trump beats the rap(s), then gloating and/or predictions of doom will age badly. And if he doesn't beat the rap, then seeing him pay a price for his misdeeds will be far more satisfying to Democratic officeholders (and other non-fans of Trump) than anything they might say this week.
There is still a lot more to be said about this news, so let's break the rest up into sections.
A Couple of Mysteries
There are two sidebars to yesterday's news that could well prove to be important parts of the puzzle, but that are shrouded in enough mystery right now that all we've got is speculation.
First, what exactly is the story with the timeline here? At the start of this week, we supposed that Trump might get arrested next week, but that mid-April seemed more likely. Yesterday, we had an item about the grand jury taking a month off, and so we concluded, like everyone else, that an arrest was a month or more into the future. And then... BAM!
The scuttlebutt is that Bragg executed a deliberate misdirect—he slow-played his hand, to use a poker term—so as to catch the Trumpers by surprise and thus minimize the chances of violence. This would seem to be consistent with the DA's desire to get Trump arrested and arraigned ASAP, while there was still some amount of confusion and while the base was still in disarray. If this explanation is correct, then it was a pretty shrewd move by Bragg. The braggart may well have met his match, here.
The other mysterious sidebar involves former Trump Organization CFO Allen Weisselberg, who suddenly dropped his lawyer yesterday and switched to different counsel. It's tempting, if you don't like Trump, to speculate that Weisselberg has decided to turn full stool pigeon, and that his newfound willingness to spill his guts is what led Bragg to finally pull the trigger. This is doubtful, however. According to The New York Daily News, which is pretty dialed in to this particular subject, the change in counsel was demanded by the Trump Organization. It would seem that Team Trump felt that Weisselberg's now-former lawyer, Nicholas Gravante, was too interested in protecting Weisselberg and was not interested enough in protecting the Trumps. Weisselberg apparently went along with the change, albeit under much protest, because he wants the Trump Organization to keep paying both his legal bills and his severance package (the latter being spread out over a 2-year period).
So, the former CFO probably hasn't turned traitor. That said, he surely doesn't like being pushed around like this, and so he may have quite a tale to tell once he has all his severance money. Also, it's at least possible that, with all of this out-in-the-open maneuvering, the Trump family has committed obstruction of justice. Not that they are likely to be charged with that, since it's so hard to prove.
What Exactly Did Trump Do?
At the heart of the right-wing response, from Trump on down, is that the former president didn't really do anything bad. They all acknowledge the extramarital affairs, and the payments that were made, but assert that paying someone for their silence is no big deal, and that it happens all the time. That's why God invented legal settlements where the terms are not disclosed, right? If you are inclined to see the merit in this line of thinking, you should disabuse yourself of that notion right now. Trump committed serious acts of malfeasance here that were at very least extremely unethical, and may well have been illegal.
To start, let us consider an analogy. Imagine that, instead of FBI Director James Comey, the person who had "new" information about Hillary Clinton's e-mails in October 2016 was a private citizen. Or, even better, two private citizens. Let us further imagine that these two private citizens were about to go public with their tales, and that the Clinton campaign knew it. If so, well, Clinton & Co. knew full well that the e-mails were her Achilles' heel. So the candidate, or one of her people, might call up a friend in the media. Say, MSNBC's Rachel Maddow. And an arrangement might be made for Maddow to purchase "exclusive" rights to the private citizens' stories, with reimbursement to come later. Once Maddow and her staff had made the deal, they would give no actual coverage to the story they'd just bought, and the crisis would be averted for Team Hillary. This is known as "catch and kill."
This is almost exactly what Donald Trump did. Of course, the unfriendly stories weren't about e-mails, they were about his sexual practices. And it wasn't Rachel Maddow, it was National Enquirer publisher David Pecker. Just as Clinton knew that e-mails were her Achilles' heel, Trump knew that his sexual practices were his. Of all the controversial things that unfolded during that campaign, the one that very nearly derailed The Donald was "Grab 'em by the pussy." So, it was essential to make sure that Stormy Daniels and Karen McDougal kept their mouths shut. Had they told their tales, then it might well have been the Trump campaign that was ruined by an October surprise. Recall that the results were very close, and a switch of less than 80,000 votes in the right places would have made Clinton president.
In short, Trump pulled the wool over the eyes of the American people, and in a way that probably saved the election for him. That said, while a little sleazy, this was probably not illegal in and of itself. It's acceptable for political candidates to go looking for skeletons in their opponents' closets. And it's also acceptable for political candidates to try to keep their own skeletons hidden. That's the way the game is played.
Where Trump veered into "illegal" territory, at least based on what is known publicly, is in the manner in which the Daniels/McDougal transactions were handled. To start, there is some evidence the two women were coerced, and possibly even physically threatened, which would itself be a crime. Beyond that, however, Trump wanted to keep his name out of the proceedings, and so the dealing was done by a middleman, namely Michael Cohen. And in those cases where Trump's name was required, he used a pseudonym (David Dennison).
What this means is that when Daniels and McDougal received six-figure payments, the money actually came out of Cohen's pocket. Assuming the purpose of the payments was to protect Trump's presidential bid, then that is a clear-cut violation of campaign finance law. If Cohen was acting as an individual, then at most he was allowed to spend $2,700, and not hundreds of thousands of dollars. And if Cohen was acting as a corporation (i.e., "Michael Cohen, Esq., A Professional Corporation"), then he was allowed to spend $0. Either way, he blew past the limits. And it does not matter if he was later reimbursed; the moment he handed over more than $2,700 (or, more than $0), he had broken the law. This, incidentally, is what John Edwards got in legal hot water for; he also tried to use intermediaries to make huge payments to his paramours in order to buy their silence (though it should be noted that Edwards avoided conviction when his jury deadlocked).
The apparent lawbreaking doesn't end there, either. At very least, Trump and Cohen tried to hide the payments on the Trump Organization ledger as "legal expenses." It also appears that, since "legal expenses" are a business expense, Trump wrote the money off on his taxes. Both of these things are illegal; the former is fraud and the latter is tax evasion and is a violation of both New York State and federal tax codes. Oh, and speaking of another politician who got himself into hot water, former speaker Dennis Hastert structured the blackmail payments he was making to his molestation victims so that they looked like something other than what they really were. In other words, the same basic thing that Trump and Cohen conspired to do. And Hastert, of course, got popped.
What Are Trump's Chances?
We must reiterate, as we commence this part of the discussion, that the indictment remains under seal. So, like the rest of the general public, we know very little about exactly what Trump has been charged with, or what the precise evidence against him is. That said, we can at least give a few useful thoughts, we hope.
To start, it might be useful to consider how effective the Manhattan DA's office is when it comes to securing convictions. Bragg is very much an advocate for transparency, so he is one of only four major-city DAs in the country that posts detailed data to the Internet for anyone to inspect. You can see the website for yourself here, if you wish.
According to numerous reports, the charges against Trump are criminal and are felonies. We will learn next week if that's correct, but assuming it is, then here is the record of the Manhattan DA's office in non-violent felony cases over the last decade:
As you can see, for many years, Manhattan DAs won about three-quarters of the non-violent felony cases they brought, either through plea or through winning at trial (that's the orange), and they lost about 20% (that's the purple). The magenta represents "Adjournment in Contemplation of Dismissal" (ACD), which is the New York term for cases in which the defendant's indictment is quashed if they avoid arrest for some specified future amount of time (often 6 months). It's not very common in white-collar cases. The red represents dispositions other than conviction, dismissal, or ACD. For example, if the defendant died in the middle of the process, they would be placed in that group.
As you can also see, the conviction rate has gone down a lot in the last 4 years. Enemies of Alvin Bragg, like, say, The New York Post, blame that on him, arguing that it's the result of his permissive attitudes toward crime. The problem here is that he took office on Jan. 1, 2022, or two years into the downturn in convictions. So, the Post's thesis does not seem to stand up to scrutiny. Maybe it's the pandemic, maybe juries have gotten more lenient after the murder of George Floyd, maybe it's something else. We just don't know, and we are ill-informed enough about the New York justice system that we don't particularly want to guess. The one conclusion we do feel comfortable drawing from this exercise is that your average defendant in Manhattan is more likely to get convicted than not, but that a Manhattan criminal case is nowhere near the slam dunk that a federal criminal case is (on the federal level, the conviction rate is in the high 90s).
That said, Donald Trump is not your average defendant. Not only is he a celebrity, he's the first president or former president to be indicted. It is simply inconceivable to us that Bragg would move forward unless he felt he had a case that was airtight, or nearly so. It will be harder to help potential jurors to understand the potential crimes here than it will be for, say, Fulton County DA Fani Willis. But it's certainly not impossible. Keep in mind also that Bragg was previously unwilling to pull the trigger on an indictment, such that two of the attorneys leading the investigation resigned in protest just a little over a year ago (they quit on Mar. 6, 2022). That does not seem like the behavior of a DA who is willing to go off half-cocked.
Then there is the matter of the indictment itself. Again, not a lot is known yet, but one thing that has been made public is that there are at least 30 counts against Trump. That means that Bragg was able to identify more than two dozen violations of the law, and to get a grand jury to agree. It's true that DAs usually overcharge, and then drop some of the weaker complaints as a case progresses. But it's pretty hard to become the subject of 30 (or more) indictments without engaging in some pretty problematic, and wide-ranging behavior.
Of course, the lifeblood of a criminal trial is evidence. And while we don't know exactly what evidence Bragg has, we know it's a lot, and that at least some of it is very compelling. Cohen and Pecker have both turned against Trump, and are both able to speak in detail about the scheming to silence Daniels and McDougal. There's also an extensive paper trail, as tends to be the case with financial crimes. Oh, and there are also recordings of phone calls where Trump can be heard discussing the plan.
There is one other thing that works against Trump. Maybe it shouldn't but it does. And that is that he's likely to be under indictment in several other venues in the near future. As former federal prosecutor Renato Mariotti explains, facing multiple trials in multiple venues makes each individual trial harder to win. One reason for this is that the defendant ends up spread thin. The second is that exactly the right thing to say in order to win trial #1 might be exactly the wrong thing to say in order to win trial #2. Especially if you lose trial #1 and become a convicted felon whose past misdeeds are admissible if you take the stand in trial #2 (or trial #3, or trial #4, etc.). So, some very difficult triangulation is required (and Trump is about the worst person in the world for that sort of thing). A third issue is that being under indictment in multiple venues creates an overall impression of a guilty person, particularly if you've already been convicted in at least one venue. Again, maybe that shouldn't be true, but it is.
Undoubtedly, in addition to preparing the slew of fundraising e-mails (see above), Trump's team has also been working on his potential defense. There are a few arguments he and his lawyers have already made in public, and that may well come up if he goes on trial:
- I Didn't Know: In the Mafia, when a criminal act is to be committed, the don gives orders to his caporegimes (captains), and then they actually give the order to the soldatos (soldiers). That insulates the don from a fair bit of criminal exposure, since they don't have direct contact with those who commit crimes on their behalf.
Like those dons, this Don is pretty good at finding people who will get their hands dirty on his behalf while keeping him in ignorance. Obviously, it helps that ignorance is kind of a specialty of his. In any event, Trump has already asserted that he had no idea about the payments to Daniels and McDougal. Of course, the phone recordings, along with the testimony of Cohen and Pecker, say otherwise. Trump's counsel might be able to undermine Cohen and Pecker as a couple of sleazy guys who can't be trusted to tell the truth. But the phone calls are going to be hard to explain away.
- It Was Personal: Similarly, Trump has argued that the payments to Daniels and McDougal were made for personal reasons, and had nothing to do with his political career. This being the case, the money spent was not a campaign expenditure and thus was not a violation of election law.
The first problem with this defense is that it doesn't align well with the information that is already publicly known. Cohen and Packer both insist the money was spent to protect the presidential bid. The timeline of the payments (they were made in October 2016) also supports that assertion. The second problem with this defense is that, even if it's 100% truthful, it only covers the alleged campaign finance violations. The alleged screwy bookkeeping would still be illegal.- Bragg Lacks Jurisdiction: Depending on the charges, this may be the strongest argument. Cohen was already convicted of tax evasion and of violating campaign finance law, and he already did time in prison. However, the prosecution was the work of the federal government. Bragg may not have the legal authority to go after campaign finance violations.
On its surface, this may seem like Trump's salvation—he fights about jurisdiction for months or years, gets the case kicked, and then maybe the feds pick it up or maybe they don't. However, it does not actually appear to be any salvation at all. Reportedly, the 30+ counts that Bragg brought are all related to business fraud. That is something that Bragg most certainly does have the authority to prosecute, and it's something that may well bring together the Daniels/McDougal investigation and the lengthy investigation into the Trump Organization's finances that was primarily conducted by New York AG Tish James.In short, we don't see a whole lot of promise in any of the defenses that Team Trump has raised thus far. We'll see if his counsel tries to run with these anyhow, concluding it's the best they've got, or if they come up with some new legal theory of the case.
On the whole—once again, with limited information—it sure looks like Trump is in a very bad position. Yes, these can be tough crimes to prove. And yes, he's very skilled at wiggling out of tight situations. But this investigation has been going on for a long time and has flipped numerous co-conspirators. In Bragg, we have a DA who appears to be rather cautious, and also to be rather shrewd when it comes to strategy. Plus, thirty counts. And with other prosecutions potentially going on at the same time, too? And with Trump's inability to keep his mouth shut, even if it hurts him? The former president's lawyers are definitely going to earn their money (which they better make sure to get in advance).
What Next?
This has been a twisty and turny ride, full of surprises. So, the crystal ball is very murky. That said, the next step is presumably Trump's arraignment next week. We'll see then exactly how he plans to play the PR angle, and if he really wants to make a show of being arrested. At that point, the indictment will also likely be unsealed, and we'll learn a whole lot more about exactly how hot the water is that Trump is in.
We'll also see how Trump's base responds to all of this. There wasn't any violence yesterday, and we would guess there won't be any next week. Most Trumpers are more about talking big than anything else (something they have in common with Trump himself). Further, they all know what happened on 1/6, and how Trump kept his own neck safe while others went to prison on his behalf. Finally, as we noted yesterday, this whole thing has been managed in a way to allow whatever steam has built up to release pretty slowly. So, while Gab and Truth Social and Parler may be very ugly places this weekend, we think that might well be the extent of it.
Beyond that, now that the first domino has fallen, maybe other dominoes will quickly fall. Special counsel Jack Smith does not seem like the type to give a damn about politics, and so yesterday's news probably doesn't matter much to him. That said, he's not the decider; AG Merrick Garland is. And Garland does seem to keep his ear to the ground, at least some. So, now that Bragg has made his move, it's possible the feds will feel more comfortable making their move. Or maybe not; we could be persuaded either way.
On the other hand, DA Fani Willis is in a tougher position. She's got a lot of Trumpers in her state and, unlike Smith and Garland, she doesn't have the protection of the U.S. Marshals when she goes home at night, nor does she have a chief executive who is fully on board with whatever she decides. So, having some cover may well be important to her, more important than it is to Garland and Smith. Further, her case appears to be further along than the federal case(s), and seems to be pretty airtight (although the classified documents thing is also pretty slam-dunky). Anyhow, we would not be terribly surprised to see Willis move forward in short order, maybe even within the week.
And that's what we have to say about the biggest news of the year so far, at least until the blessed day that Aaron Rodgers, who is the world's second-biggest diva behind Trump, leaves the Packers and signs with the Jets. Don't know if you wanted 5,000+ words on the Trump indictment, but whether you did or not, that's what you got. As a result, we're going to have to hold off on some previously planned, but not time-sensitive, stuff like the other half of the Venality bracket. Or the item that will be accompanied by a picture with the filename penis_on_penis_off.jpg. That material will be along next week. Otherwise, this post won't go live until 8:00 or 9:00 a.m. PT. (Z)