How strong is the hush money case against Donald Trump?

What’s happening

After more than a year of speculation, debate and legal wrangling, the first proceedings of a criminal trial involving former President Donald Trump began in earnest Monday in a New York City courtroom.

In the case brought by Manhattan District Attorney Alvin Bragg, Trump faces 34 felony counts connected to an alleged scheme to cover up a $130,000 hush money payment made during the 2016 presidential election to porn actress Stormy Daniels, who claims she had sex with Trump in 2006.

There is nothing inherently illegal about paying someone not to disclose a purported affair. But Trump is being accused of illegally plotting to falsify business records in an effort to hide that payment. Under New York law, falsifying business records is a misdemeanor, but the charge can be bumped up to a felony if records were falsified with the specific intent to commit or conceal another crime. Bragg alleges that Trump schemed to hide violations of both state and federal election laws as well as New York state tax laws.

The hush money case is one of four ongoing criminal investigations into Trump, and generally viewed as the least significant — both in the seriousness of the alleged crimes and the potential punishment the former president faces. But it’s possible that this will be the only one of the four cases to go to trial, let alone be decided, before Election Day in November, and each of the felony counts carries a maximum possible prison sentence of four years upon conviction.

Why there’s debate

The question in the New York trial is whether Bragg can prove that Trump broke the law by attempting to conceal the payment to Daniels.

Outside of Trump and his GOP allies, who all claim that the case is a politically motivated “witch hunt,” most legal analysts believe Bragg appears to have ample evidence to secure conviction on the misdemeanor counts of falsifying business records. There’s serious disagreement, however, on whether he has the goods to tie those violations to a secondary crime.

Skeptics across the political spectrum say the felony portion of the case is built on shaky and unproven legal reasoning that will require ironclad evidence to prove — evidence Bragg may not have. There are also major technical issues that could derail the indictment, most notably the untested matter of whether a federal crime such as a campaign finance violation can count as a secondary crime under New York’s state-level business records law.

But others argue that the case isn’t nearly as weak as skeptics make it out to be. They say Bragg and his team are adept at litigating complex financial issues such as this one. The lack of details about how Bragg plans to connect critical dots in the case, they add, is a sign that the district attorney is merely saving his most potent ammunition for later, not that he doesn’t have it.

Finally, some legal commentators say this case is unique, both in the legal reasoning underlying the charges and the character of the defendant, that there’s simply no way to predict how it will turn out.

What’s next

With jury selection completed as of Friday, the judge in the case expects the trial itself to begin as early as Monday.

Perspectives

The lack of second crime will sink Bragg’s case

“Even legal minds who don’t like Mr. Trump have said this case is a stretch. What’s the other crime? … It’s far from clear that hush money like this is a campaign contribution, and that question could spend years on appeal.” — Editorial, Wall Street Journal

The case gets stronger the more we learn about it

“To succeed, Mr. Bragg will need to overcome the first impressions of the case from its critics. In this view, it is nothing more than a years-old, stale case about hush money payments to a porn star on shaky legal ground. But since the indictment in April 2023, the legal foundations of the case have been revealed to be much stronger than the naysayers suggested.” — Norman Eisen, Joshua Kolb and Barbara McQuade, New York Times

Bragg doesn’t have jurisdiction to accuse Trump of a second crime

“Donald Trump is facing a state criminal trial for violating federal election laws that Alvin Bragg has no jurisdiction to enforce. … We should think of Bragg as falsifying his prosecution — just as he accuses Trump of falsifying business records.” — Andrew C. McCarthy, National Review

Weak as the case may be, it’s likely the only chance the Trump will be convicted of anything before November

“Flawed as it is, the New York case seems to be the best bet remaining for a Trump conviction before the election.” — Andrew Prokop, Vox

Just because a legal theory is untested doesn’t mean it’s weak

“The mere fact that a legal theory is arguably ‘novel’ or concerns highly unusual facts does not mean that it is invalid or somehow illegitimate under the law. It means that prosecutors will need to try to amass a robust legal basis — drawing on the text and historical underpinnings of the relevant statutes as well as broader legal principles — to persuade both the trial and appellate courts to rule in their favor.” — Ankush Khardori, New York

Connecting all the dots in a way that proves convincing to a jury will be a huge challenge

“These charges will be difficult to prove. There can be no doubt that the district attorney faces an uphill climb. They tell the story of a complex conspiracy to illicitly alter the course of the 2016 election — potentially, a powerful tale of corruption that persuades both the jury and the public of this prosecution’s necessity. But Bragg’s legal theory is, if not convoluted, a fairly confusing effort to patch together disparate offenses into one alleged crime. … This is not at all the slam-dunk case that so many Democrats wanted.” — Mark Joseph Stern, Slate

The weakness of this case may make it harder to convict Trump on more serious crimes

“Not only may Trump potentially beat the charges, at trial or on appeal. He may be able to use those charges to create the impression among his supporters that he is a victim of politically motivated vendetta. In turn, that may make it harder for Georgia or federal prosecutors to bring and sustain much more serious charges against him.” — Noah Feldman, Bloomberg