Quite a lot of ink has been spilled in recent weeks over the supposed problem — perhaps a very big problem — that the years-old case of the Stormy Daniels’ payoff might be the first — and perhaps the only — prosecution of Donald Trump. It weakens, so the argument goes, the whole global case against Trump. It’s old, technical, small stuff, and “why now?” when Trump needs to be held accountable for the gravest sorts of crimes against the country itself. Trump will clearly try to take the iffy nature of a Daniels’ payoff prosecution, use it to make the case that charges against him are all weak and manufactured and then try to use that broad brush to color whatever other more serious charges come later.
Some of these points I agree or agreed with; some not. So let me address different parts of this question.
First, I’ve spoken to many who think, want to think or wish it were true that federal prosecutor Jack Smith, Atlanta prosecutor Fani Willis and New York City’s Alvin Bragg are part of a planning team rolling out the various Trump indictments. But of course they’re not. In fact, it would be highly inappropriate and maybe even illegal if the three were coordinating the timing or nature of their work for maximum effect. I don’t think we know why Bragg has decided to move now. From what I can tell, from the outside there’s no obvious explanation for why the case is ready to be charged now as opposed to various other points under Bragg or his predecessor who left office at the end of 2021. But it really is what it is. He doesn’t report to anyone else. He likely knows no more than we do about the progress of the other investigations. If it has some negative optics impact as argued above that’s just how it is. Maybe it sucks; maybe it doesn’t. But it’s his call and what happens after an indictment is up to judges (and possibly later juries) in New York who are going to evaluate it, one certainly hopes, on the basis of the law and not predicted impacts on a news or political narrative.
Second, as a colleague helped refresh my memory earlier in the week, it’s really not a notional offense. If we had known in the final weeks of the 2016 election that a presidential candidate would arrange a hefty payment to kill a story about his sleeping with a porn star and do it by committing tax fraud and campaign finance fraud, I don’t think any of us would have said, “Oh, well, that kind of stuff happens all the time. Let’s not pretend those types of fraud are crimes.” Indeed, Trump’s lawyer and fixer, Michael Cohen, who executed the deal on Trump’s behalf, has already done jail time for the offense. It’s pretty hard to say it’s a non-issue when a guy a rung down the ladder already did time for the exact same facts and actions. In other words, we should all refresh our memories a bit. It’s not trying to commit election fraud, or launching a coup or stealing a lot of classified government property. But it’s not nothing either.
If it were up to me, would I want to see Trump indicted in Georgia or for the false electors scheme first? Sure. But it’s not. And there’s not all that much more to say about it. When you look at all the facts, it’s more irony than travesty. This is a real crime. It’s just that the other crimes are vastly more grave. That’s not a big point in Trump’s favor.
Third, Trump will clearly go to town about the supposed triviality of this case. He’ll have some significant number of unfriendly experts and commentators who will — perhaps in spite of themselves — agree with him. Or at least they’ll argue that it’s a shaky prosecution. But if that’s where Trump and his enablers decide to make their stand, the problem is that in two or three weeks there will probably be more indictments for election tampering in Georgia. Election tampering is a big deal. No one can say otherwise. You can say Trump is our lord and it doesn’t matter or Trump thought it was okay. But the whipped-up indictments argument will quickly become a dead letter for all the but the truest believers who will believe anything Trump says regardless. Will Trump try to say they’re all the same, paint Georgia with the same New York City colors? Sure. But he’s also still claiming he won the 2020 presidential election by a big margin. You can only go so far chasing what Trump says.
