Washington Post's Aaron Blake ("Why Trump’s ‘hush money’ case is bigger than hush money") is among a bunch of people fretting about how the criminal trial that starts Monday is getting known as the "hush money case":
that... shorthand might not be totally apt, if a Monday letter from the judge in the case is any measure. Indeed, New York Supreme Court Justice Juan Merchan seems to indicate that what we really have is a third election interference case.
(The paper's headline writers certainly aren't helping, if that's the case.)
My take is that "election interference case" is not a winner, particularly not for this one, The phrase "election interference" doesn't have a happy history in the Trumpery; we've been using it a long time since the discovery that Russian intelligence agencies were interfering in the 2016 election on Trump's behalf, and the only thing we've really gotten out of it, rhetorically, is that Trump now uses it against every damn investigation of his crimes:
The Fani Willis lover, Mr. Nathan Wade Esq. has just resigned in disgrace, as per his and her reading of the judge’s order today. Nathan was the ‘special,’ in more ways than one, prosecutor ‘engaged’ by Fani (pronounced Fauni) Willis, to persecute Trump for Crooked Joe Biden and his Department of Injustice for purposes of election interference and living the life of the rich and famous. This is the equivalent of Deranged Jack Smith getting ‘canned.’ Big stuff, something which should happen in the not too distant future!
And there's a kind of a point there, too; a guilty verdict in any of these criminal cases probably would have an influence on the outcome of the November election, and if the prosecutors believe he's guilty they'd probably be happier if he lost the election too, just as I would. You and I hope to exert an influence on the election too, by voting, and by persuading other people to vote the same way, including by spreading stories about Trump's criminality. Everybody's trying to interfere with the election—that's the point Trump wants to make here, in his post-truth whatabout way, that singling him out as if he were the only election interferer on the block is unfair.
But really, "election interference" isn't a crime in and of itself. If somebody murders his rich uncle for a share of the estate, he doesn't get charged with inheritance interference but with murder; inheritance interference is the motive, not the crime. If a political candidate commits crimes in order to influence the election result, whether it's collaboration or conspiracy with a foreign intelligence agency or the illegal coverup of hush money payments, those are the crimes charged; election interference is the motive. And this seems to be exactly the view taken in New York State: it is a crime only if it's "committed unlawfully".
When Trump's attorney-fixer Michael Cohen arranged for the National Enquirer publisher David Pecker to pay $150,000 kill fee to Playboy model Karen McDougal for her article describing her affair with Trump, that was an unlawful campaign contribution under federal law; it was way over the limit in size, and it was illegal to donate it in secret. When Cohen himself got $130,000 laundered through a shell company to Stephanie Clifford/Stormy Daniels to kill her article on a night with Trump, mushroom imagery and all, that was apparently another unlawful campaign contribution, but when it turned out Trump had ended up reimbursing Cohen for the money with another $130,000 to cover taxes, that made it an unlawful campaign loan, and Trump's own money the illegally unreported contribution, and his attempts to pass it off as legal fees is a case in New York State of falsifying business records in the first degree:
Falsifying business records in the first degree is a felony under New York state law that requires that the "intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof". This is in contrast to falsifying business records in the second degree, which is a misdemeanor that does not have that requirement.[8][92][93] In later filings, Bragg listed three such crimes that that Trump allegedly intended to commit: violation of federal campaign finance limits, violation of state election laws by unlawfully influencing the 2016 election, and violation of state tax laws regarding the reimbursement.
Those three crimes that make the falsification a felony instead of a misdemeanor aren't themselves charged in the Trump indictment, which is a little weird. The first of them, though, is a federal crime, for which Cohen was charged, and convicted in his plea with the Southern District, and he indeed did prison time—Trump himself (Individual-1 in Cohen's case) wasn't charged with it because he was president at the time, I guess, so it's implicit that the crime took place and he was certainly involved in it; we all heard the recording of his call with Cohen in re the Pecker payment.
The second one is the definition of what constitutes "election interference" in New York State (thanks, Just Security!):
N.Y. Elec. Law § 17-152: Conspiracy to promote or prevent election. Under that statute, “Any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means and which conspiracy is acted upon by one or more of the parties thereto, shall be guilty of a misdemeanor.”
(I'll ignore the tax issue.)
So this is clearly the kind of thing that happened, as summarized at ABC News:
"From August 2015 to December 2017, the Defendant [Trump] orchestrated a scheme with others [including Cohen, who did prison time for his part, and Pecker, who was given federal immunity in return for his testimony] to influence the 2016 presidential election by identifying and purchasing negative information about him to suppress its publication and benefit the Defendant's electoral prospects. In order to execute the unlawful scheme, the participants violated election laws and made and caused false entries in the business records of various entities in New York," prosecutors said in a statement of facts accompanying the charges.
Which may seem a tiny bit circular—it's unlawful influencing because of the election law violations and the falsification of records, and the falsification of records is a felony rather than a misdemeanor because the influencing is unlawful—but that makes sense to me: it's a real conspiracy, in which the distinct parts aggravate the criminality of the whole.
Anyway, it occurs to me that this is a case where the coverup is not worse than the crime, it is the crime. Or rather I should say the metacoverup is the crime, because if you think about it it's a coverup of a coverup, in which the first-order federal campaign law violation of concealing Donald's nasty sexual behavior (which itself was not a crime but a bad look for the evangelical champion, especially at the moment of the Access Hollywood tape) by paying off the two women is itself concealed by the second-order New York crime of falsifying the records.
So I'd like to propose an improved nomenclature for the criminal cases in which they are clearly differentiated and both the crime involved and its subject matter are referenced:
- the Hush-Money Coverup for Bragg's case (I'm not saying it's not an election interference case, but I think the expression tends to make all these cases sound less criminal than they really are, which is why Trump is deploying it so much in his zone-flooding commentary, and it's merely "influence" in any case: I don't think Bragg should put himself in the position of having to argue that knowing about McDougal and Stormy would have made a crucial difference in the election results, not something we can really know);
- the Election Racket for Willis's case in Atlanta, in which Trump after the 2020 election is just one (important) member of a criminal gang trying to impose its will in its territory through threats and intimidation, messing with voting machines and tormenting election workers, with more attention to thugs like Giuliani and Meadows; and
- the Election Fraud for Smith's Washington case, where Trump is (mysteriously) the only defendant, which overlaps a good deal in content with the Atlanta case but which seems to me to focus less on the activity of making trouble and and unrest (it's remarkable how little attention Smith gives to January 6 itself), and more on Trump's broader personal objective, the "conspiracy to disenfranchise voters" promulgation of the Big Lie, Trump's effort to sustain the idea that he really had won the 2020 election, alongside his knowledge that he was lying; and
- the Documents Theft (I've been using this all along) for Jack Smith's Florida case generally known as "Mar-a-Lago", in which the important element isn't that they were in his house (as is also the case for Biden and Pence) but that he deliberately took them from the White House and resisted giving them back in so many ways, with such a variety of lies and subterfuge, and such a total refusal to obey the law.
Narratologically speaking, I think this is a pretty good schema for seeing the four very different proceedings as constituents of a single story, which I hope is a story of Trump's failure. Don't count on that though.
Cross-posted at the Substack.
