It’s been a while since I’ve written an opinion piece for the American Justice project, but I have a few thoughts to share on the Donald Trump porn-star hush-money criminal trial now underway in Manhattan.
First thought: if two impeachments, an insurrection, nearly half a billion dollars in business fraud judgments, a civil sexual assault and defamation verdict, and a porn-star hush-money criminal trial aren’t disqualifications from public office, what more would it take?
A felony conviction? Two felony convictions? What about 34?
The 34-count People of New York v. Donald J. Trump case is the first of four pending criminal proceedings to reach the trial stage and might be the only one that returns a verdict before the 2024 Presidential election. The other cases involve 2020 election interference in Georgia, fomenting the January 6th insurrection, and the unlawful retention of classified documents at Mar-a-Lago.
Through evidence and testimony in the hush money case, prosecutors will seek to show that Donald Trump cheated on his third wife with a Playboy model in 2006, cheated on the Playboy model with an adult film actress, and years later arranged for a tabloid publisher to buy the exclusive rights to such lurid stories in order to bury bad publicity.
The porn star story proved too lurid even for the National Enquirer, so that hush money payment had to be laundered through Trump’s attorney, through a shell corporation, and through the actress’s attorney.
All of that is just the backstory. As with Richard Nixon, the coverup is more damning than the actual crime.
In Trump’s case, the alleged coverup is a paper trail of 34 falsified business documents made in furtherance of a criminal conspiracy to commit state and federal campaign finance violations and tax fraud, as the scheme had the effect of transforming porn-star hush-money payments into claimable business deductions.
Each invoice, general ledger entry, and check created by Trump or at his direction in furtherance of a crime gives rise to its own Class E felony count under New York law.
The defense maintains Trump’s innocence, with Trump frequently deriding the prosecution as politically motivated. His lawyers have suggested that the coverup was primarily motivated by a desire to shield his wife from the allegations, rather than an intent to sway a close election.
This is a small case with enormous stakes that pit the integrity of the judicial system against the bedrock principle that no one is above the law. This case also involves issues of protected speech and political speech under the First Amendment.
In 2016, Trump is alleged to have silenced voices that could have cost him votes. In 2024, Trump is campaigning and fund-raising off the audacity of Judge Merchan to place him under a gag order for the duration of the trial.
Under the order, Trump is free to disparage the case, the judge, and the district attorney, on or off the campaign trail, and even to lie while doing so. All of that falls under his free speech rights. What he can’t do is undermine the proceedings by intimidating foreseeable witnesses, tampering with the jury, or endangering court personnel.
However, in political rallies and in reckless statements on Truth Social, Trump has repeatedly blown through the guardrails of narrowly tailored gag orders meant to protect the integrity of the justice system from his own worst impulses.
On Tuesday, the judge found Trump to have violated the current gag order nine times in just the first few days of the trial. The maximum monetary penalty for criminal contempt was imposed, a total of $9,000 in fines. Another batch of violations made between the first set and the first hearing were considered at a second hearing held today.
Judge Merchan lamented that such a fine may be insufficient to deter a wealthy offender, highlighting yet another equity loophole in our justice system. He is only levying fines for now, but ongoing violations could land Trump in jail for up to 30 days for each offense.
Trump was acquitted of a tenth gag order violation that the DA’s office identified, with the judge indicating that he would be holding prosecutors to a higher standard of proof regarding willfulness in cases where Trump’s statements could be seen as reactions to provocations by witnesses, jurors, or court staffers the gag order was meant to protect.
This applies most notably to Michael Cohen, a former Trump attorney and upcoming witness who has turned into a relentless critic of his former boss. The judge reiterated that the main purpose of Trump’s gag order is protection, not punishment, and the clarification of the order’s terms protected Trump as well by effectively gagging one of his biggest detractors.
As a criminal defendant, Trump is required to be in the courtroom for the entire trial, but media reports indicate that he is sleeping through significant portions of the testimony and that staffers are providing him with only the most favorable media coverage of the proceedings. He truly may not understand the nature of the charges against him until the verdict comes down. Or as one commentator put it, criminal defendants who sleep through their trials may be in for a rude awakening.
Last spring, the indictment in this case became the first onchain legal filing in the American Justice project. A commemorative rerelease is planned. Details are forthcoming.
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