How the Stormy Daniels case could backfire in Donald Trump’s favor

“The walls are finally closing in on Donald Trump!”

“Donald Trump is in big trouble!”

“Justice has finally come for Donald Trump and there is no way he can possibly escape THIS TIME!!!!”

During the last seven years, the American people and the world have heard some version of this sentiment many times. This week those voices are screaming even louder as Trump is supposedly set to be indicted by a grand jury in New York for alleged crimes connected to hush money payments he paid to his mistress Stormy Daniels in 2016. Alas, the interminable wait for Trump to finally be held accountable for his many crimes continues as the grand jury in Manhattan did not convene on Wednesday.

Contrary to the excitement, premature celebrations and sense of anticipation for Trump’s “imminent” indictment in New York, I find the whole matter to be very anticlimactic and deflating. To paraphrase the legendary professional wrestling commentator Jim Ross: There is not much sizzle here and the steak is rather boring.

If justice is indeed chasing Donald Trump in an earnest and serious way, it needs to hurry up. Otherwise, a trial for hush money payments and violating campaign finance laws may ultimately backfire, leaving Trump and his movement stronger and not weaker.

Trump has committed a litany of serious crimes, most notably the Jan. 6 coup attempt and attempting to blackmail the country and leaders of Ukraine into illegally supporting his attempt to subvert the 2020 election. Never to be overlooked or forgotten, however, Trump and his regime also committed acts of democide against the American people which resulted in at least 1 million deaths from the coronavirus pandemic.

That Trump has escaped justice for his presidential crime spree – and the decades of crimes he committed beforehand – is an indictment of American democracy and the country’s legal system and other institutions. Justice in America is not “blind.” There is one justice system for rich white people and another one for everyone else. The “justice” system that awaits poor Black and brown people is a special and distinct type of monster. “The system,” Eli Mystal writes in a recent essay at the Nation, “has never been able to sufficiently protect us from Trump, and I don’t think it’s about to start now.” 

As a practical matter, what is the actual likelihood of convicting Trump for the crimes he allegedly committed in the Stormy Daniel’s case? In a new essay at New York magazine, Ankush Khardori explains:

The prospective prosecution is being described among liberal observers as “the least significant and the weakest one facing Trump,” “the hardest to prove” among “all the legal cases Trump faces,” one with “manifold” legal and evidentiary problems. There are concerns that the indictment might even boost Trump’s reelection prospects. During an appearance last week on MSNBC, a former U.S. Attorney in Georgia during the Obama administration lamented the fact that Manhattan district attorney Alvin Bragg may be the first to charge Trump rather than Justice Department special counsel Jack Smith or Fulton County district attorney Fani Willis in Georgia. “I wish these prosecutors would get somewhere in a room together and talk about who has the strongest case and who’s got the most evidence and who can actually do something as opposed to worrying about who’s gonna get to be the first one at the watering trough,” he said, adding, like others have argued, that he did not “find the case very compelling.”

It is hard to venture a definitive view on any of this at the moment, particularly since we will not know for certain what charges Bragg’s office is bringing unless and until there is an actual indictment. …

If this is indeed the theory that Bragg’s office is contemplating, the hand-wringers have fair reasons to worry. In New York, a defendant can be convicted of falsifying business records at the misdemeanor level if he makes “or causes a false entry in the business records of an enterprise” and does so “with intent to defraud.” The charge can be escalated to a low-level felony with a four-year maximum term of imprisonment if the defendant intended “to commit another crime or to aid or conceal the commission thereof.”… The New York Times has described the prospective case as one that “hinges on an untested and therefore risky legal theory involving a complex interplay of laws, all amounting to a low-level felony.”

Khardori continues:

For the time being, we find ourselves preparing for a literally unprecedented and deeply strange situation — one that owes its existence, first and foremost, to Trump and his endless creativity in generating new legal problems, as well as the Republican party’s seemingly endless appetite for indulging his excesses, but also to a Democratic legal establishment that has struggled for years to manage those concerns on behalf of the public in a responsible, fulsome, and orderly manner. Whether Bragg and his team of prosecutors can break that pattern remains to be seen.

In a new essay here at Salon, criminologist Gregg Barak is a bit more optimistic about Donald Trump finally facing true justice and accountability. “At the peak of his power, and even after orchestrating a failed coup, the ‘Houdini of organized crime’ has this far managed to escape his smorgasbord of transgressions with all but a few scratches. Now with the impending and unprecedented criminal indictment of both a former president and a candidate for president, apparently to be brought forth by Manhattan District Attorney Alvin Bragg, we will all become witnesses to the ways in which Trump’s standard legal tactics as a civil defendant — deny, deflect and delay — will be limited in his new role as a criminal defendant.”

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For a variety of reasons including fear of setting a precedent where a former president is indicted for his crimes, factional infighting with the Department of Justice, Biden’s insistence on not being consumed by the Trump investigations, concerns that there will be massive violence by Trump’s MAGA movement and other neofascists, and a need to be meticulous and perfect given the potentially existential stakes involved for the country and its democracy, the many legal investigations into former president Trump have taken several years – which is a near eternity in politics and a country that is collectively sick with organized forgetting.  

Unfortunately, the decision by the Department of Justice and other law enforcement agencies to be so ponderous and slow in advancing the many criminal cases against Trump has made the following nightmare scenario much more likely:

Trump leverages the multiple criminal indictments against him as a way of rallying his supporters. Trump’s criminal trials are also a way for him to make even more money and to further cement his control over the Republican Party and the “conservative” movement. Trump beats DeSantis in the presidential primaries. Because of voter nullification, gerrymandering, voter suppression, voter intimidation, and other illegal and quasi-legal means, Trump defeats Biden by a small margin and becomes president again even though he is facing or has been convicted of multiple serious crimes against democracy. Trump ignores the criminal verdicts against him. If the criminal trials have not ended, he simply refuses to participate in them, declaring them null and void and a witch hunt. As promised, Trump begins his retribution and revenge campaign against his “enemies” and becomes a de facto King or Caesar who is truly above the law. The United States will then face a constitutional crisis that is far worse than Trump’s first regime and the coup attempt on Jan. 6.

Some observers have compared Trump’s potential indictment in the Stormy Daniels case for hush money payments and campaign finance law violations to how legendary Mafia kingpin Al Capone was finally brought down not for murder but for tax evasion. When I think of Capone and Trump, the connections I summon are quite different and much more cautionary. When I was a child, Geraldo Rivera, who was then still a somewhat respectable journalist, announced to the world that he and his investigators would reveal Al Capone’s secret vault on live TV. At the time “The Mystery of Al Capone’s Vaults” was a very big deal and a national spectacle: it is estimated that 30 million people watched the broadcast.

My father was obsessed with Al Capone and decided that this was the perfect moment to buy our first VCR, which was a very expensive purchase at the time for anyone (500 dollars), never mind a Black working-class family. My father had a way around this challenge. He reached out to one of his “friends” at the local electronics store. His connection brought the VCR over to the house a few days before Geraldo’s special. My father handed his friend some money in an envelope and off he went to drop off some other special deliveries to his customers.

I studied the manual and figured out how to set the VCR to record the big show. We even had pizza from one of the good places downtown near Yale University. My father and I excitedly waited for the Al Capone special to start. My mother said we were gullible and stupid – but she still kept walking by the den and looking at the TV with curiosity and anticipation.

Geraldo finally forced his way into the vault. What did he find? Junk.

My mother let out a big mocking guffaw.

My father was very angry and started to curse Geraldo Rivera, not because there was nothing in the vault but because Rivera made a mistake by finding the wrong vault! I felt dejected. But I was also very happy that we finally had a VCR and I could record Robotech, G.I. Joe, The Transformers, and professional wrestling. I had to save my allowance to buy a copy of Star Wars, which at the time was almost 100 dollars at the local video store. I never did have the self-control to save all that money. My parents got me several Star Wars tapes for Christmas; I was very happy.

When (and if) the Manhattan grand jury finally decides to indict Donald Trump for his alleged crimes, the prosecutors had better get it right or the whole thing will be a humongous embarrassment and Trump will crow about his innocence and being “unfairly persecuted” as he grows in power.