Donald Trump did what many men do when confronted with extortion from a woman he may or may not have had a sexual relationship with.
He paid her to remain silent.
There is nothing inherently criminal about that, unlike so many other things Donald Trump did -- like inciting a riot or trying to fix an election or hiding classified documents that he had no business possessing. If Trump were facing an indictment for Jan. 6 or for his activities in Georgia or for the results of the Mar-a-Lago search, I'd be ready to cheer the perp walk.
But a novel violation of federal and state election law that has never been prosecuted as such? Is this really what should bring a former president down? Is this the first charge that should be brought?
It appears that Michael Cohen, the president's fix-it man, did not fix it well. He may well have violated federal and state law in the way he made the payment. It may well have been a misdemeanor. Turning it into a felony is even more complicated. Turning it into a felony that the president himself was aware of is even more complicated. Convincing a jury to convict the former president may be even more difficult.
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The closest precedent is the prosecution brought against former Sen. John Edwards, a Democrat of North Carolina who got involved with a videographer covering his campaign who ended up pregnant with his child and also received a payoff that gave rise to a trial on federal election charges — and a deadlocked jury.
The key question in the Trump case, or one of them, seems to be the motivation for the payment — was it to further the campaign (making it a campaign contribution) or to protect his family from embarrassment or, obviously, both?
But if I'm having trouble following the legal trail of this prosecution — and I taught election law for years — can a jury be blamed if they have trouble? And is this really the best case that can be made against the former president? Why this case, to go first, and not the Jan. 6 case or the Georgia case or the Mar-a-Lago case? If I were in the Trump camp, I would welcome this opportunity as one to show that Democratic prosecutors would stop at nothing — would be willing to make new law — in their zeal to prosecute Trump.
I'm not suggesting that the payoff was legal. It might very well have violated state and federal laws. But that's because, when you come right down to it, federal election law, particularly if you combine it with state election law, is a bit of a maze, or maybe a quagmire, which requires a lawyer a whole lot smarter than Michael Cohen to navigate.
The payoff to Stormy Daniels could have been done legally, and should have, and the fact that it wasn't owes as much to Trump's selection of an incompetent fix-it lawyer as it does to anything else. Remember this is the lawyer who used phony names on the agreement and otherwise displayed a fairly shocking level of incompetence in handling the affairs of a high-profile client who needed the highest quality representation.
No wonder Trump is fixated on his perp walk, and his Republican allies intend to turn this indictment into a partisan attack. It's the weakest of the cases against him, and he's lucky in that regard, but the worst is yet to come. If Daniels were all he had to worry about, he would be in better shape than he is. Stay tuned.
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This Susan Estrich commentary is her opinion. She can be reached at sestrich@wctrib.com.
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