When legendary mobster Al Capone was finally convicted, it wasn’t for murder and racketeering. It was for a series of tax crimes that included misdemeanor charges.
Now, in the wake of years of delayed criminal accountability for Donald Trump—ranging from inciting violent insurrection, interfering with elections, and mishandling of classified documents—comes news that a first criminal charge against Trump might arise from a similarly unexpected and almost forgotten case.
Like Capone, Trump has bragged of not paying taxes and, like the convictions against Capone, the Stormy Daniels matter may include misdemeanors. But it could be his ultimate downfall.
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Reports that Manhattan District Attorney Alvin Bragg has convened a grand jury to look into the hush money payments to the adult film star—made nearly seven years ago—to conceal a sexual relationship she had with then-candidate Donald Trump spell new legal peril for Trump, in a case that never should have taken this long to bring.
The delay was primarily due to Trump’s Justice Department interference with federal prosecutors in Manhattan in their investigation of the case. As set forth in a book by Trump-appointed U.S. Attorney Geoffrey Berman—former law partner of Rudy Giuliani—Trump’s Justice Department repeatedly meddled in the case. Trump’s DOJ successfully pressured Berman’s office to back off what would have been an easy to prove federal campaign violation case against Trump, and instead allowed a case to proceed against Trump’s lawyer and “fixer”—Michael Cohen.
It would have been easy because Cohen—the person who made the payment to Stormy Daniels—was cooperating with DOJ, having admitted to having arranging the payment to Stormy Daniels, and later being reimbursed for it from the Trump Organization. That made the Trump Organization payment a “payment in kind campaign finance contribution” because it was made to help Trump win the election (by suppressing negative publicity of an extramarital affair). The contribution should have been reported, but was not, which made it a slam-dunk campaign finance violation prosecution given Cohen’s cooperation and his pleading guilty to having paid Daniels for this purpose.
Normally, having a target’s lawyer cooperate against the target is a dream case for prosecutors, but prosecutors in Trump’s DOJ—relying upon their rule about not charging a sitting president—interfered by having its Office of Legal counsel write a memo questioning the legality of charging Cohen, even after he was convicted.
District Attorney Alvin Bragg speaks at a press conference on Sept. 8, 2022.
Alex Kent/AFP via Getty ImagesWhile DOJ failed to kill the charges against Cohen, they did make sure that the language in Cohen’s charges did not name Trump as an unindicted co-conspirator—which is something normally done in these kind of cases. Instead, Trump was referenced only as a “candidate for federal office,” and DOJ official Edward O’Callaghan caused the removal of language of “individual-1 acted in concert with” and “coordinated with Cohen on the illegal campaign contributions.”
Ironically, the Southern District of New York U.S. Attorney’s office is famous for its alleged independence—known colloquially inside DOJ as the “sovereign district of New York—but here they not only allowed Trump’s DOJ (via Attorney General Barr) to interfere with their investigation and charging documents, but they killed the possibility of state prosecutions.
As pointed out by Rachel Maddow, Berman’s book also reveals that the federal prosecutors told then-Manhattan District Attorney Cyrus Vance’s office—which had begun to investigate—to back off because federal prosecutors would handle the matter.
Perhaps more ironically, Berman’s book is titled Holding the Line and aggrandizes his efforts to hold off the corrupt influence of Bill Barr on behalf of Trump—corrupt actions by Barr that Berman chose to keep secret until he got his book contract.
The acquiescence of the federal prosecutors at S.D.N.Y. didn’t end there. Although they could have brought a case once Trump left office, they chose not to.
According to former federal prosecutor Elie Honig who wrote in his book Untouchable, that in 2021 the office discussed whether to bring charges against Trump after he left office, but decided that the charges appeared “trivial and outdated” in comparison to other Trump matters—like the Jan 6 insurrection.
One source told Honig that they were “well aware of the prudential reasons why you wouldn’t charge a president, even after he was out of office.” Maybe the “prudential reasons” the federal prosecutors were worried about included the possibility of losing a high-profile case the way DOJ (in a case tried by now-Special Counsel Jack Smith) lost its case against the former senator and presidential contender John Edwards for making hush money payments to his mistress through campaign donors.
Michael Cohen at Trump Tower on Dec. 12, 2016 in New York City.
Drew Angerer/Getty ImagesIn any event, the case is now in the hands of Manhattan DA Alvin Bragg, who previously reversed the course of his predecessor and killed the financial crimes case against Trump, causing two of his prosecutors to resign in protest.
Bragg went on to secure a toothless conviction against the Trump Organization—which was fined $1.3 million dollars as punishment—and a slap on the wrist conviction against Trump’s CFO Allen Weisselberg, who despite his refusal to cooperate against Trump was given a plea deal resulting in only five months of jail.
Perhaps Bragg has now found his prosecutorial spine, but the case under New York law is harder than the federal one would have been. Under New York law, Bragg will have to prove that the Trump Organization falsified its business records and that the falsification was meant to cover up another crime, such as violating New York state election laws. If Bragg can only prove the falsification, such a charge would only be a misdemeanor.
Like the federal prosecutors at SDNY, there are many who may feel that this case is too old and too “trivial” to be prosecuted.
I wonder also if the fact that the payoff’s recipient was a woman in the adult film industry adds to prosecutors’ willingness to consider the offense trivial.
But there was nothing trivial about the efforts made by Trump’s DOJ and its corrupt head—Bill Barr—to delay and impede any effort to prosecute Trump in a timely fashion. And there is nothing trivial about the injustice of Michael Cohen being the only person convicted for these actions.
Justice delayed is never ideal, but it is still justice.
