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WAUKESHA, WI - MAY 1st: Former president Donald Trump speaks at a campaign rally on Wednesday May 1st, 2024.  (Photo by Sara Stathas for the Washington Post)

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The day has finally arrived <a href="https://www.washingtonpost.com/national-security/2024/04/08/falsifying-business-records-charges-trump-hush-money-case/" target="_blank">for the historic trial</a> in Manhattan of <a href="https://www.washingtonpost.com/donald-trump/" target="_blank" class="contextual_link">Donald Trump</a> on charges of falsifying business documents. The case concerns Trump’s scheme to conceal embarrassing information from voters in the 2016 election. Derided as a “rump” case, or “trivial,” it actually might be the most consequential of the four criminal cases facing the former president.

“This is the case that reflects the efforts Trump went through to influence the 2016 election — and it worked. He won the election,” <a href="https://www.meidastouch.com/news/trump-manhattan-da-criminal-trial-may-be-the-most-important" target=_blank>wrote Karen Friedman Agnifilo</a>, who worked for decades in the Manhattan district attorney’s office. “And he only won by a slim margin of fewer than 80,000 votes in three swing states.” Trump sought to buy off two women who said they had sexual encounters with him (<a href="https://www.washingtonpost.com/politics/2024/04/12/trump-hush-money-criminal-trial-manhattan/48c6caec-f8ff-11ee-9506-c8544e5c9d86_story.html" target=_blank>Trump denies that</a>) because he not unreasonably feared he would lose if, in the wake of the “Access Hollywood” tape, <a href="https://www.meidastouch.com/news/trump-manhattan-da-criminal-trial-may-be-the-most-important" target=_blank>these allegations came out</a>. Agnifilo wrote:

What if, on the heels of the release of the Access Hollywood tape right before the 2016 election, where Trump boasts of grabbing women’s genitals without their consent, that he was able suppress from voters the fact that he had extra marital affairs with both an adult film porn star Stormy Daniels and former Playboy Bunny Karen McDougal, was the key to his victory by this slim margin?

You don’t have to believe Agnifilo. That’s also essentially how Judge Juan M. Merchan will <a href="https://www.nycourts.gov/LegacyPDFS/press/PDFs/Letter-re-jury-selection-4-8-24.pdf" target=_blank>summarize the case to prospective jurors</a>:

The allegations are in substance, that Donald Trump falsified business records to conceal an agreement with others to unlawfully influence the 2016 presidential election. Specifically, it is alleged that Donald Trump made or caused false business records to hide the true nature of payments made to Michael Cohen, by characterizing them as payment for legal services rendered pursuant to a retainer agreement. The People allege that in fact, the payments were intended to reimburse Michael Cohen for money he paid to Stephanie Clifford, also known as Stormy Daniels, in the weeks before the presidential election to prevent her from publicly revealing details about a past sexual encounter with Donald Trump. Donald Trump has pleaded not guilty and denies the allegations.

“The money was given to influence the 2016 election,” Fred Wertheimer, founder and president of Democracy 21, told the Guardian. “In other words, the silence was purchased so [Daniels] would not provide damaging information in the closing weeks of his campaign.”

If you doubt the importance of this case, consider an alternate history: Trump never silenced these women, Hillary Clinton won, three right-wing justices did not get appointed, <i>Roe v. Wade </i>remained law, and Trump never had the chance to attempt a coup in the aftermath of the 2020 election. Much depended on the facts set out in the indictment.

Manhattan District Attorney <a href="https://www.washingtonpost.com/politics/2023/03/22/alvin-bragg-da-trump-investigation/" target="_blank" class="contextual_link">Alvin Bragg</a> has not changed his theory of the case. <a href="https://www.usnews.com/news/national-news/articles/2024-02-15/from-hush-money-to-election-interference-the-evolution-of-trumps-first-big-criminal-trial" target=_blank>What has changed</a> is the slow realization among commentators that the case revolves around allegations that, if proved true in court, would amount to Trump’s first — and only successful — attempt to use deception and illegal means to gain power.

Bragg’s theory of the case was set out in the <a href="https://manhattanda.org/wp-content/uploads/2023/04/2023-04-04-SOF.pdf" target=_blank>second paragraph</a> in the indictment’s statement of facts:

From August 2015 to December 2017, the Defendant orchestrated a scheme with others to influence the 2016 presidential election by identifying and purchasing negative information about him to suppress its publication and benefit the Defendant’s electoral prospects. In order to execute the unlawful scheme, the participants violated election laws and made and caused false entries in the business records of various entities in New York. The participants also took steps that mischaracterized, for tax purposes, the true nature of the payments made in furtherance of the scheme.

Bragg’s case has always been about this critical sequence of events. But several points are worth stressing.

To begin, we can never <i>prove</i> that “but for” the payoff scheme Trump would have lost. Constitutional scholar Laurence Tribe told me, “It’s inherent in the nature of things and the limits of human knowledge that one can never demonstrate with certainty how history would have unfolded had one or another pivotal event, including an obviously crucial deception of tens of millions of people who hadn’t yet come to expect the worst of Mr. Trump, not occurred.”

But if any crime in pursuit of office would be deemed the decisive event in 2016 and beyond, Tribe said, “the felonies charged by Alvin Bragg in the New York prosecution that is about to unfold in real time qualify for that designation.”

Second, the notion that Bragg’s case is less important because it is brought in state court by a local district attorney misconceives how our federal system works. Although federal laws may preempt state laws, the federal government is not more important than state governments. The two systems operate in parallel, each performing their assigned tasks. Is a mass murder case in state court less important than a federal case about punching an Occupational Safety and Health Administration inspector? Certainly not.

A subsidiary argument for discounting Bragg’s case goes like this: If the payoff scheme was such a big deal, prosecutors in the federal Southern District of New York  would have brought the case. That’s nonsensical as well. A nearly infinite set of considerations goes into a charging decision, including the availability of a relevant statute with provable elements, the quality of witnesses, the prosecutor’s adversity to risk and the pendency of other cases. Recall that the <a href="https://www.justice.gov/usao-sdny/pr/michael-cohen-pleads-guilty-manhattan-federal-court-eight-counts-including-criminal-tax" target="_blank">SDNY prosecuted</a> former Trump attorney Michael Cohen for participation in the payoff scheme; after that, it may have decided it could not rehabilitate him sufficiently to testify against Trump. (State prosecutors who deal with shady witnesses have no problem with such a situation. Moreover, Bragg has a mound of documents that substantiate Cohen’s testimony.) If anything, this reminds us that it would be patently unjust to prosecute Cohen but not the man who directed and benefited from muzzling these women.

Finally, the tabloid phrase “hush money” is particularly inapt in describing the case. Paying hush money isn’t illegal; falsifying business records is. Here, the alleged sex really is incidental. <a href="https://twitter.com/tribelaw/status/1778861012520771897" target=_blank>As Tribe tweeted</a>, “Saying Trump is on trial for paying hush money to a porn star is like saying John Wilkes Booth was tried for sneaking up behind Lincoln in Ford’s Theatre.”

In sum, the case that begins Monday is not frivolous, minor or particularly prurient. To the contrary, the first trial of a former president has grave importance as a means of holding Trump accountable for the scheme that lifted him to power. It marks the first instance of Trump maneuvering to win an election through deception. To boot, a multi-count felony conviction might result in prison time. That might explain why Trump has been so desperate to delay it.

University of California at Berkeley, BA in history

University of California at Berkeley, JD

Jennifer Rubin writes reported opinion for The Washington Post. She is the author of “Resistance: How Women Saved Democracy from Donald Trump” and is host of the podcast Jen Rubin's "Green Room."

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Bragg case critical as the only successful election deception case

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