Trump’s hush money trial may be a historic mistake

For a prosecutor, convincing an entire jury of someone’s guilt can be hard enough. Imagine trying it when the jurors can’t get their head around the crime that has supposedly been committed.

That may be the unenviable task facing New York District Attorney Alvin Bragg’s team as it seeks to nail Donald Trump in what has been dubbed the hush money case, but is at its core an election fraud case.

Although I’ve been writing about it on and off for months, I confess, I still haven’t got a firm grip on the basis of this claim.

It’s not clear the prosecutors have, either. Or perhaps they’re fudging it and hoping for the best.

To recap, Trump is alleged to have paid two women, Playboy model Karen McDougal and former porn star Stormy Daniels, $150,000 and $130,000 respectively, via friendly publisher AMI, which owned the National Enquirer, and Trump’s then fixer/lawyer Michael Cohen, to keep a lid on embarrassing sex claims ahead of the 2016 election.

Hush payments are not illegal. Prosecutors say Trump’s books were falsified to make the payments look like ordinary legal expenses. If proven, this would be a minor offence – a “misdemeanour”. To make it a serious “felony” offence, Bragg has claimed that Trump was effectively interfering in the election by seeking to prevent politically damaging stories from hitting the headlines.

Felony charges also require that the defendant made the false record with “intent to defraud”.

In Monday’s opening arguments, one of the prosecuting team, Matthew Colangelo, ignored the obvious fact that influencing an election is not illegal (it’s called political campaigning) and declared that Trump’s alleged plot to bury embarrassing sex stories “was election fraud, pure and simple”.

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Was it? How exactly? What was the election crime? How was fraud committed? The prosecutors have yet to explain.

The election law expert Richard Hasen, of the University of California, Los Angeles, has remarked that “calling it election interference actually cheapens the term and undermines the deadly serious charges in the real election interference cases”.

The prosecutors have former Trump associates like Cohen as witnesses. Cohen has already pleaded guilty to two campaign finance charges in August 2018 in relation to the hush payments made on Trump’s behalf to Daniels.

Trump has pleaded not guilty to all counts and denies any wrongdoing.

Legal commentators on liberal-leaning US television channels, like MSNBC, which are cheerleaders for the anti-Trump vote, remain chirpy about the prospects of a conviction. “I am fairly confident they may end up convicting Donald Trump and they may do it in a New York minute,” ex-federal prosecutor Glenn Kirschner has said.

But this sounds more like hope than expectation. For all the legal experts fist-pumping Bragg, there are others scratching their heads – or worse.

Jed Handelsman Shugerman, a law professor at Boston University, wrote in a damning New York Times editorial this week that the hush money case was “an embarrassment” and “a historic mistake”.

The case also raises questions about the wisdom of having partisan chief prosecutors. Bragg is an elected Democrat. The spectre of politics tainting the law was also apparent in February when the Republican prosecutor Robert Hur over-reached by making a politically damaging, psychiatric assessment of Joe Biden as “an elderly man with a poor memory”

All of which doesn’t mean that Bragg and co won’t win. Trial juries can be convinced by skilled prosecutors – or succumb to their own prejudices.

I’ve never forgotten how a friend of mine confessed that the jury on which he served finally decided to convict someone in a long, complex and confusing drugs case because all 12 were getting bored and the suspect “looked like a wrong ’un”.

Trump has hardly made a good impression with his mobster attitude at the courthouse and on social media.

Applying this dubious criterion, he could be convicted next month. But if that happens, the inevitable appeals are likely to scrutinise Bragg’s baroque case against Trump more thoroughly – especially the woolly claim of “electoral interference”.

Whatever happens, the trial is certainly historic. It could result in the first criminal conviction of a former US leader. If Bragg fails, it will give the most morally and psychologically unfit presidential candidate in US history a mighty boost as he seeks re-election as the people’s champion and victim of the establishment.

That the hush payments case looks likely to be the only one of Trump’s four criminal trials to be heard before the 5 November election was underlined by events at the Supreme Court on Thursday.

Its judges have started to consider Trump’s claim that as the then president, he is immune to the charges he conspired to overturn the 2020 election result.

Justices in the court’s conservative majority indicated that they might stipulate some degree of immunity applies regarding official presidential actions, as opposed to personal ones.

How a judge would distinguish between official and private conduct in the case, say, of a criminal president abusing official powers for personal gain is anyone’s guess.

If, as some legal observers predict, the Supreme Court decides to send the case back to Judge Tanya Chutkan in Washington DC, to limit the scope of special counsel Jack Smith’s case against Trump, that will mean yet more delays in what is the most serious criminal trial Trump faces.

And in the run-up to the election, which may give Trump the power to pardon himself, time is not on prosecutors’ side.