Washington: Here’s the thing about Donald Trump: don’t take a punch if you’re likely to miss.
The incendiary Republican has once again made history, becoming the first US president to face criminal charges after a Manhattan grand jury voted to indict him over alleged hush money to porn star Stormy Daniels, who claims she slept with him in 2006.
Defiant: Donald TrumpCredit:AP
Even in a country where norms have been shattered for years, the significance of this moment is truly something.
Never has a former or current president been indicted – let alone one who is currently the frontrunner for the Republican nomination to run for the White House.
If Trump were ultimately found guilty, he could potentially face time in prison. And even if he isn’t, the very fact that he now faces charges – or a trial in the heat of an election campaign – will test a party already divided over whether to support a twice-impeached president, who is also under investigation for other potential crimes.
But therein lies much of the rub. This particular case is one of several probes involving Trump and according to legal experts, it is arguably the weakest.
There’s a Department of Justice probe into the January 6 Capitol attack, where Trump urged supporters to “fight like hell” to stop Joe Biden’s 2020 election victory from being certified.
There’s a Georgia-based investigation into election interference in that state, in which Trump pressured Georgia Secretary of State Brad Raffensperger to “find” the votes he needed to win the support of the electoral college.
And there’s another Justice Department investigation into the handling of classified documents found at Trump’s Mar-a-Lago resort in Florida.
This probe, however, is centred on something arguably less nefarious than attacking American democracy or compromising national security – and may require an element of legal acrobatics to win the case.
Some facts are not in dispute. In 2018, Michael Cohen, Trump’s then ‘fixer’, admitted in court he paid Daniels $130,000 ($194,000) in exchange for her silence about her affair with Trump and pleaded guilty to campaign finance violations.
According to the Federal Department of Justice, which successfully prosecuted the case against Cohen, the former attorney was reimbursed for this payment and also received substantial funds to cover any tax liabilities. To keep the payments secret, neither Trump, nor his campaign, allegedly reported the payments as a campaign contribution.
As such, it is widely expected that the prosecution’s case will be based on the allegation that these reimbursements were falsely claimed as legal expenses.
If that happens – and it won’t be known for sure until the indictment is unsealed when Trump surrenders next week – several doubts are likely to emerge. Firstly, the Justice Department had the chance to bring federal charges against Trump, and so too did the previous Manhattan District Attorney who investigated the case before the current DA, Alvin Bragg, but both opted not to. One can’t help but wonder why.
Secondly, the underlying crime of falsifying business records represents a mere misdemeanour – and to elevate this to a felony charge, Bragg would have to prove that Trump had a “intent to defraud” in the hope of concealing a second crime. In this case, the second crime would appear to be the use of funds to advance Trump’s presidential campaign in 2016, potentially in violation of campaign finance laws.
Thirdly (as if those two hurdles weren’t enough), there’s also a statute of limitations, which normally – but not always – requires an indictment of this manner to happen within five years.
And then, of course there’s Trump himself, who for decades has avoided being held accountable for his actions and has an extraordinary knack for defying the odds.
A supporter of former US president Donald Trump raises a flag outside of Trump’s Mar-a-Lago estate in Florida on Monday.Credit:AP
Remember 2015 when he came down the golden escalator of Trump Tower to announce his presidency? Few people took him seriously, only to watch him knock out the competition and win the Republicans’ nomination to run as their candidate.
Or October 2016, when a damning Access Hollywood video was leaked in which Trump was overheard bragging about being able to grab women “by the p—y. You can do anything”. He ended beating Hillary Clinton a month later.
And even after last year’s midterms, when the Republican “red wave” failed to materialise, most believed he was such a diminished figure there was no way he would stand a chance running for another term.
And yet last week, as he awaited a potential indictment, he posted one of his largest leads in the 2024 Republican primary, with 54 per cent of potential primary voters supporting him in a Monmouth poll, compared with 26 per cent backing his biggest rival, Florida Governor Ron DeSantis.
Trump has denied the allegations, describing the indictment as “political persecution and election interference at the highest level in history”. He’s also said he has no plans to stand down from the race, and for the past few weeks, has used the case to embark on a fundraising blitz by claiming he is once again the subject of a witch hunt — this time by a Democratic District Attorney in one the nation’s most left-leaning states.
America is now in uncharted waters, with a former president that you underestimate at your own peril. The danger for the Democrats is that if the charges don’t stick, it could garner more sympathy for his cause, undermine the other investigations, and bolster his chances of victory in 2024.
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