The Political Scene | The New Yorker

Episode: Donald Trump Braces for an Indictment in the Stormy Daniels Case
Date: March 23, 2023
Host: Tyler Foggatt
Guest: Amy Davidson Sorkin, Staff Writer, The New Yorker

Episode Overview

This episode explores the possible indictment of former President Donald Trump related to hush-money payments made to adult film actress Stormy Daniels. Host Tyler Foggatt and guest Amy Davidson Sorkin analyze the historical, political, and legal implications of this unprecedented situation, while placing it in the context of other ongoing investigations into Trump. The discussion interrogates what the charges may entail, the difficulties of prosecuting a former president, and the impact on American politics.

Key Discussion Points & Insights

1. Historical & Political Significance of a Potential Indictment

• First Ever: If indicted, Trump would be the first former U.S. president to face criminal charges.
  • Amy Davidson Sorkin (02:23):
    “It would be the first time that a former president has been brought into court on criminal charges. Try to picture the whole process of his mugshot, his arraignment, a judge thinking about whether he's a flight risk, and the Secret Service standing by all the while.”
• Unprecedented Cooperation: The logistics involve unprecedented coordination between the NYPD and the Secret Service (03:15).
• Charges Not About January 6th: The expected indictment is unrelated to Trump’s actions on January 6th, distinguishing it from the broader narrative of accountability for challenges to democratic norms (04:13).

2. The Landscape of Trump Investigations

• Four Major Investigations:
  • New York District Attorney (Stormy Daniels hush money)
  • Fulton County, Georgia (2020 election interference)
  • Federal (Classified documents at Mar-a-Lago)
  • Federal (January 6th insurrection)
• Georgia Seen As More Serious: The Georgia probe is viewed as having a stronger connection to alleged election crimes (05:00):
  • “Georgia, for example, has a law against criminal solicitation of voter fraud. And you think to yourself, well, that matches the facts.”

3. The New York Case: The Stormy Daniels Matter

• Facts in Outline:
  • Alleged consensual encounter in 2006 between Daniels and Trump (Trump denies it).
  • Trump’s then-lawyer Michael Cohen paid Daniels $130,000 in hush money days before the 2016 election.
  • Allegations of falsification of business records (potential misdemeanor or felony) if tied to campaign finance crimes.
  • Legal ambiguity about whether a federal campaign finance law can serve as the predicate for a state charge (10:00).
• Complications:
  • Hush money is not inherently criminal but may be if part of campaign finance misreporting.
  • Statute of limitations could pose issues due to time elapsed (11:29).
  • Many legal technicalities and potential for significant pre-trial litigation.

Notable Quote:

• Amy Davidson Sorkin (11:29):
  “As shady as it sounds, paying hush money to somebody you've had an affair with is not actually a crime...there's a lot in here that sounds really, really off, but that doesn't necessarily add up to anything that's criminal.”

4. Criticism of the Charges and Political Responses

• Comparison to Al Capone: The potential indictment is compared to the Al Capone tax evasion prosecution as “getting him on the little stuff” (12:41).
• Republican Response:
  • House Speaker Kevin McCarthy calls it political:
    Kevin McCarthy (13:36):
    “We live in America, and it should be equal justice. This was personal money…this is just political. And I think that's what the rest of the country thinks. And we're kind of tired of that.”
  • Ron DeSantis attempts to contrast himself with Trump, emphasizing he hasn't been involved with “hush money to a porn star” and attacking Manhattan DA Alvin Bragg (17:27).

5. The Independence of Prosecutorial Strategy

• No Grand Coordination: No evidence that the various investigating offices are coordinating on the order or focus of their indictments, despite what some GOP figures claim (14:37).
• DA Bragg's Pressures:
  • Previously declined to indict Trump on business fraud (16:16).
  • Faces pressures both from Democrats and public expectations.
  • Possibility remains he has evidence the public hasn’t yet seen.

6. Legal and Electoral Consequences for Trump

• Indictment Doesn't Disqualify Candidacy:
  • No legal basis for automatically barring Trump from running if indicted or convicted (20:15).
  • Precedent: Eugene Debs ran for president from jail.
• Impact on the 2024 Race:
  • Litigation may keep Trump off the trail, but could also enhance his image as a political martyr (21:00).
  • Notable quote about perceptions:
    “There is also a position, of course, that this is the greatest thing that ever happened to Trump because now he is the victim, he's the martyr, and Republicans can't possibly turn on him.” (21:34)

7. Challenges in Prosecuting Trump

• Deep Political Polarization:
  • Difficulty selecting an impartial jury given high public opinion polarization.
  • Quote referencing Trump’s famous claim:
    Amy Davidson Sorkin (26:22):
    “Trump said when he was running for president that he could shoot somebody on Fifth Avenue and he'd still get the nomination. Right. And…there probably would be a jury that would convict him.”
• Role of Jury System:
  • Hopeful note that American jurors can “surprise you” and fulfill their duties earnestly (27:22).
  • Possibility of Trump demanding a bench trial (27:50).
  • Expectation of considerable appellate and Supreme Court litigation.

8. Will This Prosecution Set a Broader Precedent?

• Floodgates?:
  • Sorkin doubts this stormy Daniels prosecution will preclude or absorb more serious cases; the Georgia and January 6th investigations are still unfolding (25:12).
  • Cautions against this case becoming a “smokescreen.”

Notable Quotes and Memorable Moments

• On historical gravity:
  “The idea that a former president would be brought into court is serious.” (02:50, Amy Davidson Sorkin)
• On legal complexity:
  “It's tricky. Again, we need to see how they put it all together. If this goes forward, there's going to be a lot of litigation around the technical legal aspects of it.” (10:20, Amy Davidson Sorkin)
• On possible legal outcome:
  “One thing that none of these cases will do really, is automatically disqualify Trump from running for president again.” (20:15, Amy Davidson Sorkin)
• On the broader implications:
  “What more powerful reminder is there that nobody is above the law than if a president or a former president is held to account?” (23:41, Amy Davidson Sorkin)

Timestamps for Important Segments

• [02:08] Historical and political significance of possible indictment
• [04:50] Overview of Trump’s ongoing legal investigations
• [07:15] Specifics of the New York grand jury case
• [12:41] Critique of the focus on hush money, political context
• [13:36] Kevin McCarthy’s reaction & GOP talking points
• [16:20] Past reluctance for prosecution and pressure on Bragg
• [17:27] Ron DeSantis’ subtweet and Republican politics
• [20:15] The (non-)effect of prosecution on presidential eligibility
• [22:44] Trump’s real-time reaction
• [23:41] Political and legal precedent of indicting former presidents
• [25:12] Will this lead to more political prosecutions?
• [26:22] Challenges of courtroom impartiality in a polarized nation
• [27:50] The possibility of bench trial and Supreme Court involvement

Episode Tone & Style

• Analytical and measured
• Cautious speculation, emphasis on need for facts over assumptions
• Skeptical of both extremes (political persecution vs. trivial prosecution)
• Adheres to factual reporting and healthy legal skepticism

Summary Takeaway

This episode of The Political Scene offers a nuanced discussion on what it would mean for American democracy if Donald Trump is indicted in the Stormy Daniels case. It examines the unprecedented historical moment, weighs the seriousness and complications of the charges, dissects legal and political strategies and reactions, and considers the impact on both Trump's campaign and the broader legal system. Despite the symbolic drama, the hosts stress that the real test will be whether other—potentially more grave—cases move forward, and whether the American legal and political systems can withstand the turbulence ahead.