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The Political Scene | The New Yorker
Donald Trump Braces for an Indictment in the Stormy Daniels Case
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Donald Trump Braces for an Indictment in the Stormy Daniels Case
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- [00:00]
A
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B
You're listening to the political Scene. I'm Tyler Foggatt, the senior editor at the New Yorker. Former President Donald Trump is expected to be indicted this week for paying hush money to the adult film star Stormy Daniels back in 2016. If this happens, Trump would be the first former US president in history to be criminally indicted. Whatever the outcome of the Stormy Daniels case, Trump has a lot of legal trouble ahead. There are investigations into his alleged attempt to overturn the election in Georgia, into his role in the January 6th insurrection, and into the classified documents found at Mar A Lago. Will any of these actually hurt him? Or will they become a key part of a rather unorthodox presidential campaign? To understand the broader legal and political significance significance of these cases, you'll hear from staff writer Amy Davidson Sorkin. Hey Amy, thanks so much for being here today.
- [02:06]
C
Hi Tyler. Good to be here.
- [02:08]
B
So it's Wednesday morning right now, and a lot of people are predicting that sometime this week or sometime in the near future that President Trump is going to be indicted. What does this mean? You know, what is the significance of this historically and politically.
- [02:23]
C
Well, just to back up for a second, you know, one particular person, Donald J. Trump, predicted over the weekend that he would be arrested yesterday, Tuesday, and called on his protesters to come out. There wasn't an arrest yesterday. Maybe it's not surprising that Donald Trump's social media posts lack accuracy at times. That said, there does seem to be a prospect that there'll be very serious developments this, this week or next week. Reporting that grand jury in New York is very close to indicting Trump, that would be hugely significant historically. 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. In fact, there's been some reporting that one reason it's a little bit in slow motion this week is because there have been talks between the Secret Service and the NYPD about how all of this can be done safely for everybody if it happens. And as you mentioned, we at this point haven't seen any indictment yet. The seriousness of the charges is all a matter of what's been reported and what's. But we haven't actually seen an indictment in front of us. So in terms of legally for Trump, as opposed to historically for the United States, for our political culture, that's to be determined. But the idea that a former president would be brought into court is serious. And the reply to that is that something very serious happened in the course of Trump's presidency January 6th. The disruption in the peaceful transfer of power, attempted disruption. One issue that we have is that as far as we know, the indictment that we're waiting for in New York is not connected to January 6th.
- [04:49]
B
Yeah. Trump is currently in the middle of.
- [04:50]
C
Four different investigations, at least depending on how you count, and his company. But they fall into a few different buckets of investigations. Prior to the news that the New York County DA office under Alvin Bragg was so close to an indictment, the thinking had been that the investigation that was closest to yielding charges was one that's going on in Fulton County, Georgia, where the DA Fanny Willis, has wrapped up work with a special grand jury on looking into questions about manipulation of the 2020 election or attempted manipulation of the 2020 election by Trump and his associates. Georges, where Trump made the call on January 2, asking Fred Raffensperger, who was a state official, to find enough votes to give him the state. Georgia is one of the states where There was what's become known as the fake electors scheme to have these sort of fraudulent slates of electors. But all of that is very, very rich territory for a prosecutor. Georgia, for example, has a law against criminal solicitation of voter fraud. And you think to yourself, well, that matches the facts. As you know, obviously Trump denies he did anything wrong. Obviously, a trial is where these things come out. But you have a sense that, first of all, that that seems like a serious crime. And it also would have the benefit of bringing into a courtroom some very serious events of January 6th in a way that they haven't been brought in before, even though there have been hundreds of prosecutions of people who are just in the crowd. There's also a special counsel who's looking into both events related to January 6th at a federal level and into the question of documents, classified and otherwise, that Trump may have kept at Mar a Lago illegally. He, of course, denies that he did anything wrong. But, yeah, there are a lot of irons in the fire. And suddenly this one has, has emerged.
- [07:15]
B
So what exactly is this one, like the charges that the grand jury that they're considering in New York, what specifically are those charges?
- [07:24]
C
It's really important to say that right now, sitting here Wednesday morning, we don't know, we don't know exactly how the charges are going to be framed. We don't know what evidence Bragg and his team have come up with exactly. But the outline is this. In 2006, it's alleged that Stormy Daniels, whose real name is Stephanie Clifford, who's an adult film star, had a one time sexual encounter with Trump. That's her story. He says it didn't happen. Over the years that followed, she made various attempts to make the story public or not. In the days before the election, she reached an arrangement with that was brokered by Michael Cohen, Trump's former lawyer, by which she would be paid $130,000 and say nothing about this. That is the act that's at the center of this case. That money, that payment, the way that the New York District Attorney's office may frame it is as falsification of business records, because Michael Cohen, who made the payment, did so with funds that he got, believe it or not, from a home equity loan, and then was reimbursed by the Trump Organization in some checks that Trump personally signed. And the allegation is basically that somewhere in there, the Trump Organization's business records were falsified, which would be a misdemeanor in New York, unless it's also connected to Another crime, in which case it could become a felony. So then you ask, what's the felony? Here and there, it gets a little tricky. It's important to make it clear that as shady as it sounds, paying hush money to somebody you've had an affair with is not actually a crime. It sounds terrible, it's scandalous, but it's right. And, you know, also to give Stormy Daniels her due, one thing that she's pointed out over the years is that being an adult movie star is a legitimate and legal profession. So, you know, there's a lot in here that sounds really, really off, but that doesn't necessarily add up to. To anything that's criminal. And it's also important to say that Trump's position in all of this is that he was the victim of a crime of extortion. And why is he being now chased for it, as far as we can tell? And again, we don't know yet the crime or family of crimes that the DA's office is looking at have to do with campaign finance, that there was an illegal contribution somewhere in all of this. We'll have to see exactly how they lay it out. And it helps them that Michael Cohen himself has pleaded guilty to something like this. He's had all sorts of legal problems, Michael Cohen. And along the long list of crimes that were part of a plea deal he reached, one of them had to do with these payments being somehow an illegal campaign contribution. And you have to ask, whose crime is it? What was going on with that? How exactly did that work? Who was making the donation to whom? 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. Just to take one example, Alvin Bragg obviously is operating under state law, New York state law. There's actually a question about whether in that case, a federal campaign violation can be the other crime that he matches with that state law. It's kind of a state federal mismatch. It's arguable. People have made the case that, yes, the way the New York law is written, you can work in a federal thing, but it's an argument. So there's going to be a lot of arguments around this. There's also, believe it or not, a statute of limitations argument that, again, New York probably has an explanation for why the statute of limitations does not apply to this. Normally, it would be two years for a misdemeanor, five years for a felony. But again, all of these things are going to be arguments. And there are people who look at this and I would count myself among them and wonder, is this the ideal case to begin to hold Trump to account for, however you would frame it for his abuse of the rule of law during his presidency? And it probably isn't.
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B
It does feel removed from the conversation that we've been having for years now about Trump and his actions during his presidency and in the immediate aftermath of not being reelected.
- [12:42]
C
You know, I've seen comparisons of this to Al Capone being prosecuted for tax evasion because they couldn't get him on the murder or other things. That story itself is a little more complicated. But if you're just taking it as an analogy, the bigger charge about January 6th, it's not like those have failed. Those are in stages of development that could lead to very important trials. And with this, it's unfortunate that it's given an opening for people to say, well, look at this, look at what they're going after. They're going after the little stuff. Yeah.
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B
I'm going to play you something from Speaker McCarthy, which is basically exactly that argument.
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D
So I look at it from this perspective. We live in America, and it should be equal justice. This was personal money. This wasn't trying to hide. This was seven years ago. Statute of limitation. And I think in your heart of hearts, you know, too, that you think this is just political. And I think that's what the rest of the country thinks. And we're kind of tired of that.
- [13:55]
C
If we were sitting here and the Georgia DA had just unsealed indictment against Trump for criminal solicitation of election fraud, we'd be having a very different conversation. Some aspects of it would be the same. That a president has never been brought into court before. What's it going to be like? How are they going to choose the jurors? Which is an interesting question.
- [14:24]
B
I was wondering if that's maybe one of the reasons why that. I was gonna say maybe that's why they decided to go with the New York case instead of the Georgia one, because they're worried about a jury. But even that question implies that there's like some kind of coordination between these offices, and there probably isn't.
- [14:38]
C
You're absolutely right. There is no they who's sitting there saying, well, we should start with this one and we should start with that one. Maybe in, in McCarthy's mind, there is, you know, or Ron DeSantis, who was talking about Alvin Bragg being, you know, a Soros backed prosecutor. If this is a well ordered scheme, what you have is a lot of prosecutors in a lot of jurisdictions who honestly have their own personal ambitions, their own pressures and their own constituencies. And that's a factor. How much of a factor it is. How much of a factor all of the pressures on Bragg turn out to be? You know, we'll find out when we see the indictment. You know, I just want to leave open the possibility that there's some evidence that Bragg has of something that's quite, quite serious related to the Stormy Daniels case that we're just not publicly aware of yet, something that. That could be in there. And, you know, I want to keep an open mind about that. You know, it's also there also to be fair moments when prosecutors are like, you know, here I stand. I can do no other. I've been presented with this evidence of criminality and, you know, equal before the law. I have to move forward, even if he's the former president. But there have been pressures on Bragg from Democrats as well, because he did decline to go forward with an earlier case that was focused on Trump's businesses.
- [16:16]
B
Did he just not have the evidence, or do we not really know what his calculation was there?
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C
They just hadn't nailed it. It seems to have been the internal judgment now that caused unhappiness within that office. A couple of people qu. One of them wrote a book saying that Bragg had balked at a key moment. But sometimes you don't have it. Sometimes you just don't have it as a prosecutor. And you never really know that until you really see what the case is, what evidence there is. You know, there's a view that maybe for people who are upset about January 6th, which you would hope would be a lot of people, that this isn't a great case to start with. It's not what they most mind about Trump. But within the ecosystem of the Republican Party, there are people who. That's their reservation about Trump, his personal life, his morality, his choices. You saw a little bit of that in Ron DeSantis reaction to this news. Yeah.
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B
What exactly did he say?
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C
Again, you know, and I'm paraphrasing, but he was like, I, Ron DeSantis wouldn't know anything about what's involved in paying hush money to a porn star one had allegedly had an affair with. And some variation of that phrase, hush money porn star, came up a couple of times, and that was the message. He's saying, I'm not that guy. At the same time, he attacked Bragg, he attacked the prosecution. He used it as an opportunity to talk about crime in the streets of New York saying, why is this being prosecuted when it always comes back to.
- [18:07]
B
The crime on the subways?
- [18:08]
C
The crime on the subways in a city where there's crime on the subways, why is this being prosecuted? It seems to be the Desantis version of it. But part of his message is also to Republican voters. If you don't want somebody who's going to be caught up in these crazy stories, then maybe I'm your guy. So there's that aspect of it, too. But ideally, criminal justice is not driven by those calculations. Who's this gonna hurt in the Republican primary? Who's it gonna hurt in the next time there's a Democratic primary for the DA's office? You hope it has to do with accountability for crimes. So that's also a question that we're going to have to see play out a little bit.
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B
You'll hear more from Amy Davidson's organ in just a moment. America is changing, and so is the world. But what's happening in America isn't just.
- [19:16]
C
A cause of global upheaval. It's also a symptom of disruption that's happening everywhere. I'm Asma Khalid in Washington, D.C. i'm Tristan Redman in London, and this is the Global story. Every weekday, we'll bring you a story.
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E
From this intersection where the world and America meet.
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Listen on BBC.com or wherever you get your podcasts.
- [19:41]
B
So now I'm going to ask you to go into full speculation mode. And so obviously, we don't know any of the specific charges either for this, you know, Stormy Daniels hush money payment case or the, you know, the other cases that we talked about in Georgia and with, you know, the classified documents. But I would assume that the classified documents thing, that that would yield, I guess, like a larger punishment. And so I guess I'm wondering, like, if we have any sense of, I guess it all goes back to whether the hush money payment, whether that's connected to a larger felony.
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C
Yeah. Okay. One thing that none of these cases will do really, is automatically disqualify Trump from running for president again. You know, we've had a precedent in the United States, Eugene Debs. Yeah. Running for president from a jail cell. And I would argue, as it should be, because you don't want. There's a lot that an ambitious prosecutor can do and you don't want candidates taken out of the running and voters not getting a chance to vote for them because somebody comes up with something. That was certainly the case with Debs, whose stance against US involvement in World War I antisocialism was underlying the prosecution that put him in jail. So that's not going to happen. This is not going to. And I know there are arguments out there that if he can be convicted on an insurrection thing, that somehow. But that's very, very unrealistic, you know, whether the Republican Party would want to nominate somebody in jail, that's another question. But Trump being convicted of a crime, even a serious crime, and being even in jail is not going to automatically mean that there's not going to be a President Trump after the 2024 election. That's in the hands of voters, as it should be. Now, does this mean that he's going to be wrapped up in a lot of litigation that might keep him off the trail? That's another consequence. But 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. They've got to stand behind him. You know, Lisa Murkowski, the Republican senator from Alaska, was asked about this, and she sort of laughed it off. She was like, obviously, it's not good for anybody to be indicted. It's not a net plus, you know, it's not good. Nobody wants to be facing, you know, legal consequences. And again, we don't know exactly what those legal consequences are until we see exactly what charges, you know, Trump is up against.
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B
What have we seen so far from Trump in terms of his reaction? Like you mentioned that he tweeted that he was going to be arrested yesterday.
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C
And then, and then he tweeted late Tuesday night that he was hearing that maybe he wouldn't be indicted at all. And so he did not miss the implications of Ron DeSantis comments about him. He lashed out at DeSantis. Trump posted that just wait until all of the people from desantis past started making accusations about him. And I should say that there doesn't seem to be any basis for that, that post. So if nothing else, Alvin Bragg does seem to have brought the Trump DeSantis relationship to a different stage.
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B
I'd like to talk a little bit more about the idea of prosecuting a former president and just sort of, you know, the precedent that that sets and whether it's a good idea if the.
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C
President, for example, to take one of the possible charges against him in some of these, I believe, in the documents, investigation, if he's obstructing justice, his power to do that is so great that you have to take it especially seriously. Much more than if somebody with no power. Not much more, necessarily, but you have to take it quite seriously. And what more powerful reminder is there that nobody is above the law than if a president or a former president is held to account? That said, prosecutors don't prosecute every single violation of the law that comes in front of them. You know, they can't. There's not enough hours in the day to do that. So they make choices. And if it comes to seem that the choices are a little backward, that you've just said, okay, here's a former president, I'm going to just scrutinize his life and see if I could find anything, then people start asking questions, and then you have a political system that can become driven by such prosecutions, which I don't think would be desirable. Yeah.
- [25:00]
B
I mean, do you think that this indictment of Trump, assuming that there is actually an indictment of Trump, do you think that it'll open the floodgates, or do you think that he really is just a very specific case?
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C
You know, if this was the only case against Trump, then I think that there would be an argument. Well, now, you know, this former president will be chased for that and this for that, and there might be an element of it. But again, the Stormy Daniels case hopefully won't make the Georgia case go away. You know, it won't dispel all questions about January 6th or about Trump's conduct in office, possible obstruction, all of those very serious allegations that are out there. If it does, if it's used to just be a smokescreen, then it's going to be important to cut through that and to say, well, this might be true of the Stormy Daniels prosecution, but it's not true of all of them, hopefully.
- [26:14]
B
I mean, how do you even go about, you know, prosecuting someone when half the country is convinced that the charges are illegitimate and politically motivated?
- [26:23]
C
It's not easy. I mean, just imagine the va dire, you know, the process of picking jurors who, you know, 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 it could be that in New York he could jaywalk and there probably would be a jury that would convict him. And not to equate, there was definitely.
- [26:55]
B
A grand jury that would indict him. I mean, it's kind of well known that grand juries.
- [26:59]
C
Yeah. But, you know, on the other hand, let's give our democracy some credit. You can have very thoughtful jurors who don't Always do what you expect them to and who do take the law very seriously. And we have to have some respect for that. Just people can surprise you. That's the whole process, the deliberative process and our trust in the jury system. Keep in mind that, that there's also a possibility that Trump could demand a bench trial, you know, in front of a judge who would be much more on the spot about what the law actually is. I do think that, that there's so many, like ancillary legal issues here that this is going to end up on the appellate level. I wouldn't be shocked if this ended up in front of the Supreme Court, this particular one. And really a lot of the cases against him. We've got a lot of litigation to go. In a way, I wonder if we are maybe over focused on what goes first because again, it's not a, it's not like that there's a master to do list and this has somehow been bumped as like the first priority. This might happen first. That doesn't mean that it's the most important case against Trump. It's not even in the iterations we've seen. And it doesn't mean that it's the one that history is going to most remember.
- [28:46]
B
Well, thank you so much.
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C
Thank you so much, Tyler. I guess we'll see what the next days bring.
- [28:52]
B
I guess so. Yeah. I'll be looking out the window of the World Trade center today, seeing what's happening on the streets. Amy Davidson Sorkin is a staff writer at the New Yorker. You can read all of her work@newyorker.com this has been the political scene. I'm Tyler Foggitt. The show is produced by Michelle Moses with help from Sidney Cobb. Our executive producer is Steven Valentino. Our theme music is by Alison Layton Brown. Thank you so much for listening and we'll see you next week.
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E
What the hell is going on right now and why is it happening like this? At Wired, we're obsessed with getting to the bottom of those questions on a daily basis. And maybe you are too. I'm Katie Drummond, the global editorial director of Wired and I'm hosting our new podcast series, the Big Interview. Each week I'll sit down with some of the most interesting, provocative and influential people who are shaping our right now. Big Interview conversations are fun. I want a shark that, that eats the Internet, that turns it all off, unfiltered and unafraid. So in a lot of ways, I try to be an antidote to the unimaginable faucet of reactionary content that you see online. To the best of my ability. Every week we're going to offer you the ultimate luxury of our times. Meaning and context. True or false? You, Brian Johnson, the man sitting across from me. One day, at some point, as of yet undefined in the future, you will die. False. Tell me more. Listen to the big interview right now in the same place you find WIRED's Uncanny Valley podcast. Subscribe or follow wherever you get your podcasts.
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C
From.
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PRX.