“The only crime I have committed,” declared former U.S. President Donald J. Trump on Tuesday, “is to fearlessly defend our nation from those who seek to destroy it.” He spoke those words at the beginning of a rousing 25-minute speech in the elegant marble ballroom of his Mar-a-Lago estate in Palm Beach, Florida, where he presides over a de facto court-in-exile. His invited supporters were crowded into rows of chairs, but none remained seated as he entered to the strains of Lee Greenwood’s fiercely patriotic song “God Bless The USA.” In the euphoria, many of the guests – some wearing red MAGA (“Make America Great Again”) hats – broke into a spontaneous chant of “U-S-A, U-S-A, U-S-A.”
Earlier in the day, Trump made history by becoming the first U.S. president to be arraigned on criminal charges, for which he was indicted last week. The charges stem from a $130,000 payoff in 2016 to porn actress Stormy Daniels, who has alleged that she and Trump had an affair ten years earlier, as well as payoffs to another woman with similar claims and to a New York City doorman who claims to have witnessed untoward activities. The payoffs, which are not in dispute, were made by Trump’s former attorney Michael Cohen, a convicted felon who reportedly negotiated with prosecutors to reduce his prison sentence by agreeing to testify against his former client. Over the course of 2016-2017, Cohen was reimbursed by Trump through legal fees invoiced in amounts that covered the payoffs as well as income taxes for which Cohen was liable.
The New York judicial authorities have long investigated the matter along with other controversies involving Trump. New York State’s attorney general Letitia James and New York County’s district attorney Alvin L. Bragg both campaigned for office promising to “get Trump” for unspecified crimes. James won a civil suit against Trump’s companies but has never filed charges against Trump. Bragg’s predecessor Cyrus Vance Jr. retired without bringing any charges against the former president. About a year ago, Bragg himself also dropped any prosecution of Trump, citing lack of evidence necessary to secure a conviction. Now, however, he has charged the former president with 34 counts of falsifying business records, one for each installment of the payments to Cohen. Under New York law, this offense rises to a misdemeanor usually punishable by a fine, if it is prosecuted at all. Bragg, however, has magnified all 34 counts to felony charges, which is legal in New York if the records were falsified to cover up another crime. In what is arguably the day’s most striking revelation, Bragg did not identify what that additional crime might be, either in his official statement of facts or in response to direct media inquiries at a press conference he held just after Trump’s arraignment. Legally, he is not required to do so, but virtually the entire American legal commentariat believes that his failure to identify an accelerating crime is a major weakness in his case.
Bragg’s apparent theory is that Trump’s payments violated campaign finance laws, which limit the amount that may be donated to a political campaign and require public disclosures. In order to win a conviction, however, he would have to prove that Trump falsified records for that purpose, and not for any other reason. Cohen, his tarnished and discredited star witness, has already testified under oath in another case that Trump made the payments to protect his family from distress and embarrassment and not to skirt campaign finance laws. Bragg’s only other significant witness is Daniels, who in addition to her less than upstanding profession has lost multiple court rulings relating to a defamation lawsuit she unsuccessfully filed against Trump over his denial of her allegations. Prior to Trump’s indictment, courts had ordered her to reimburse the former president some $500,000 in legal fees relating to that failed lawsuit. In a revealing coincidence, on Tuesday a federal appeals court ordered her to pay him an additional $122,000 in restitution even as Trump was arraigned.
Bragg will also have to overcome statutes of limitations on Trump’s alleged crimes. In New York, falsification of business records is time-barred from prosecution after two years. Campaign finance violations are time-barred after five years. According to his own statement of facts, the final payment – the last relevant action that could have be legitimately prosecuted – was made on December 5, 2017, more than five years ago. And even if Bragg could get around the statute of limitations, as a county district attorney he only has legitimate jurisdiction over New York laws, and not over federal laws. In any event, the Biden administration’s Justice Department also declined to prosecute Trump on the suspected campaign finance violation.
The court of public opinion also militates against Bragg. Prior to Trump’s arraignment, more than 60 percent of Americans already believed his prosecution is political. That figure rose to a staggering 70 percent of independents, whose votes tend to decide American presidential elections. It also includes 30 percent of Democrats, perhaps even including President Biden, who has not officially commented on the question but offered a wry smile when asked. Given the weakness of his case and other factors, those figures are likely to rise in the months and years it will likely take to decide it.
Much of the leftist press believes prosecuting Trump on this basis is a poor strategy that could backfire on the Democrats. The New York Times has called it “unwise” and “untested and therefore risky,” while the Washington Post has pronounced it “a dangerous leap” and suggested that it is “not worth continuing.” Bragg worsened that impression on Tuesday, when he called for the case to come to trial in January 2024, unusually soon by New York court procedural standards and, suspiciously, just before the first Republican state primary votes are scheduled to take place in early February. And hardly any honest observer of American life has failed to note that under Bragg’s watch New York City’s crime rate rose 22 percent in 2022 even as he downgraded 52 percent of felony cases to misdemeanors.
The mood at Mar-a-Lago was festive, and indeed Trump has much to steel him with confidence, if not celebrate. Every supporter who ventured an opinion to me believes that the indictment has made him a stronger candidate for the 2024 Republican nomination and for a return to the presidency. This opinion is shared by Republican critics of Trump, including major party donors based in Florida who had publicly declared support for Governor Ron DeSantis but have told me in recent weeks that they now have doubts about his candidacy and believe Trump has a better chance of both winning the nomination and defeating Biden in a hypothetical rematch. Recent polling gives Trump a two-to-one edge over DeSantis in the Republican primary vote nationally, should the Florida governor run. In some polls, that translates into a 30-point lead, whereas in February the average polling margin of Trump’s hypothetical edge was 17 points. In a hypothetical rematch against Biden, moreover, Trump registers a five-point lead.
Early signs already suggest that Trump’s indictment will only solidify his advantage. Over 90 percent of Republicans believe Bragg’s prosecution is political, a majority that unites the party on this issue more strongly than almost any other. In his impeachments, moreover, his approval ratings rose substantially, a fact not lost on Democrats who remember former president Bill Clinton’s ten-point popularity bounce when he was impeached in 1998. Since Trump’s indictment, a number of his past, present, and potential future opponents have come out against his prosecution, effectively putting them on his side in a way they would have resisted only weeks ago. They include DeSantis, New York’s former Democratic Governor Andrew Cuomo, Trump’s 2016 Republican adversary Jeb Bush, several Republican Congressmen who voted for Trump’s impeachments, and Republican Senator Mitt Romney, who twice voted to remove Trump from office. Trump’s base within the party is energized, believing that his prosecution is, as he said at Mar-a-Lago, “a persecution, not an investigation … right out the old Soviet Union.” They further believe that Trump is challenging a corrupt elite that cannot rule effectively unless he is out of the way. It is a compelling narrative, especially when combined with a list of all the previous scandals for which Trump was investigated, but which turned out to be bogus.
As the campaign season picks up steam, Trump’s legal woes are only likely to propel him to greater heights. His supporters are energized rather than dissuaded by his transparently political prosecution. No matter the truth of the allegations against him, many believe the unprecedented indictment is a tragedy for American political life and yet another powerful blow to the fading legitimacy of our institutions. Skeptical independents favored Trump by a large margin before the indictment and seem to be breaking in favor of those who disapprove of him less than they hate the administrative state that has made their lives hell for the past three years. Fewer and fewer are inclined to believe the much more serious allegations Trump faces elsewhere. It is they who cheered Trump’s declaration that he has “no doubt that we will make American great again.”
