Finally faced with an actual criminal indictment, former President Donald Trump is settling on a familiar—if contradictory—defense strategy: Blame his previous lawyer, and say he would have done it anyway.
There’s just one problem: The indictment might be more sprawling than just the Stormy Daniels hush money payments that Trump’s team has claimed it was expecting for months.
On Thursday, a Manhattan grand jury indicted Trump—something he immediately characterized as “Political Persecution and Election Interference.”
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The historic move capped a years-long local investigation involving those secret payments to silence a porn star from outing their sexual affair and potentially tanking his 2016 presidential campaign. While new reporting suggests that the Daniels case may not represent the full scope of charges—reportedly running more than 30 counts—that particular item largely hinges on the account of a less than reliable narrator.
That would be Trump’s longtime self-described “fixer,” Michael Cohen, who helped negotiate two nondisclosure agreements during the 2016 election, coordinated the $130,000 payment to Daniels, and got handsomely reimbursed through the Trump Organization.
But in the weeks before Manhattan District Attorney Alvin Bragg’s prosecutors took the decisive step to criminally charge the former president, Trump’s defense lawyers cemented a defense that rested mainly on two points, according to a source familiar with their internal discussions.
First, it’s his lawyer’s fault. And second, Trump would have done it anyway.
The first affirmative defense exploits Cohen’s weaknesses as a truthful witness. According to the source, Trump’s team is prepared to argue that the real estate mogul was merely relying on his lawyer’s advice. Trump himself has been shopping around that theory since at least 2018, when he was still at the White House.
“I never directed Michael Cohen to break the law. He was a lawyer and he is supposed to know the law. It is called ‘advice of counsel,’ and a lawyer has great liability if a mistake is made. That is why they get paid,” he tweeted in December 2018.
At first blush, the “advice of counsel” defense makes sense, because the justice system gives great deference to lawyers and the advice they give. But it’s rarely invoked, because doing so allows investigators to pierce what are normally private attorney-client communications, according to the American Bar Association. And the defense doesn’t hold up if both the lawyer and client know what they’re doing is illegal, something known as the crime-fraud exception.
A similar “advice of counsel” defense failed to save Trump’s former White House adviser, Steve Bannon, from being convicted at trial last year for ignoring a congressional subpoena. And the Trump train has rammed head-on into the crime-fraud exception before. Last year, a California federal judge decided that Trump “more likely than not” committed a felony alongside lawyer John Eastman when they attempted to impede Congress on Jan. 6, 2021. And earlier this month, another federal judge invoked the same exception when she forced Trump lawyer Evan Corcoran to comply with a grand jury subpoena involving the Mar-a-Lago document dispute.
But that might not get New York County prosecutors very far in Trump’s case, because he rarely puts things in writing—leaving investigators with potentially very little evidence. (Though Cohen does have hush money discussions on tape.)
But investigators do have access to one potentially incriminating written document. That would be the sworn affidavit Trump submitted in 2000 in response to a Federal Election Commission investigation. That probe focused on his role in alleged campaign finance violations strikingly similar to the issues reportedly at play in the Manhattan case—alleged straw donations and in-kind corporate contributions—and Trump’s affidavit demonstrated a deep understanding of those laws.
Still, prosecutors would reportedly be relying in large part on the account of Cohen himself, who appeared as a witness before the Manhattan grand jury several times in the run-up to the indictment.
Trump’s lawyers could benefit from the tell-all memoir written by a former prosecutor on that team, Mark Pomerantz, who wrote about a Feb. 9, 2022, meeting in which DA Alvin Bragg Jr. showed deep reservations about ever relying on testimony by Cohen, who had been sentenced to prison for lying to Congress years earlier.
“At one point during the meeting, Alvin commented that he ‘could not see a world’ in which we would indict Trump and call Michael Cohen as a prosecution witness,” Pomerantz wrote.
But that raises the question of why Bragg pulled the hard 180—aggressively pursuing a case hinging on a witness he was so adamantly opposed to less than a year prior. The report of a much more sprawling indictment suggests Bragg has more on his mind.
On Tuesday, a spokeswoman for the office said that four people who were present at the meeting disputed Pomerantz’s recollection.
It’s also easy to forget why Cohen lied: to protect his former boss about the fact that there were business discussions to build a Moscow Trump Tower in Russia well into the closing months of the 2016 presidential campaign.
Trump’s second affirmative defense addresses the legality of the payments to begin with, according to the person familiar with Trump’s legal strategy. The former president plans to assert that the hush money payment did not have to be reported to the FEC, the person told The Daily Beast, because Trump would have made the payment anyway—regardless of whether he was running for office at the time.
The idea here is that Stormy Daniels going public about her claims that she had sex with Trump one night in 2006—when he was still married to his current wife, Melania—would have threatened their marriage and maybe even his public standing as a businessman.
Trump addressed this himself in three tweets in May 2018.
“The agreement was used to stop the false and extortionist accusations made by her about an affair,” he stated. He added that such agreements are “very common among celebrities and people of wealth,” and—somewhat perplexingly—emphasized that “money from the campaign, or campaign contributions, played no roll[sic] in this transaction.”
That defense relies on the FEC rules regarding “personal use” of donor money during a political campaign. Federal law forbids candidates from using campaign funds to pay for things like personal lawsuits or expensive suits, which, Trump’s team argues, would extend to the hush money expenses by claiming they’re private and personal.
In other words, Trump’s lawyers are running on the theory that Trump would have paid Daniels anyway, “irrespective” of whether it would also help his presidential campaign.
But that defense has its drawbacks.
First, Trump would essentially be asserting that either federal prosecutors or a federal judge should have rejected Cohen’s own guilty plea to this same campaign finance crime, if it was never a crime to begin with. (That plea came three months after Trump’s tweets.)
Second, as The Daily Beast previously reported, campaign finance experts say that the hush money payments to Daniels and former Playboy “Playmate” Karen McDougal were clearly intended to influence the 2016 election. In fact, when Daniels tried to sell her story to the press years earlier, that was also in the political context of Trump’s candidacy—the potential 2012 bid he was publicly exploring at the time.
In 2018, the FEC’s Office of General Counsel found reason to believe that the payments were in fact unlawful, and that Trump, his campaign, and his company should be investigated. However, the Republican commissioners blocked that investigation—as they have done for every one of the dozens of complaints against Trump—citing the fact that Cohen, but not Trump, had already been held accountable, and the statute of limitations was running out.
The statute of limitations argument was also in large part due to Trump’s own presidential powers. He refused to appoint a replacement commissioner, depriving the FEC of its quorum for more than a year—meaning the commission couldn’t make any decisions about enforcement actions during that time.
But while the FEC Republicans let Trump slide for the Daniels payments, they saw fit to fine the National Enquirer’s parent company, American Media Inc., over its unlawful hush money payment to McDougal, which involved the same infractions. That decision also overlooked prosecutors’ agreements with both Cohen and AMI.
On Thursday, hours before the news broke about the sealed indictment, the Wall Street Journal reported that Bragg’s investigation had focused more intently on the McDougal payments than was previously known. Trump’s team hasn’t tried to attack those payments—which the FEC found unlawful—the way they have with Daniels. In fact, it’s unclear from AMI’s non-prosecution agreement whether they were or were not ultimately reimbursed for those payments. Trump told Fox News in 2018 that he personally footed that bill. Meanwhile, Cohen’s memoir claims that Trump actually stiffed AMI executive David Pecker—which is why he wouldn't pay for the Stormy Daniels silencing deal.
But, as Cohen himself told The Daily Beast in a statement on Thursday, “It is better for the case to let the indictment speak for itself.”
Hours later, CNN reported that the indictment wasn’t nearly as narrowly focused on the hush money payments as Trump’s legal team and news reports have made it seem. Instead, CNN reported, the grand jury has brought more than 30 counts against the former president, including for business fraud. This suggests that the “novel legal theory” talking point, which Trumpworld has promoted, may not be Bragg’s silver bullet after all.
To that point, Bragg’s office might be centering the case against Trump on its already extensive investigation into his business dealings, which have already yielded a court victory. If prosecutors can tie the hush money payments to business, financial, or tax fraud at the state level, they can sidestep the federal question altogether.
Shortly after the New York County DA’s Office filed the indictment in Manhattan criminal court, Trump’s two lawyers in this case issued a statement defending their client.
“President Trump has been indicted. He did not commit any crime. We will vigorously fight this political prosecution in court,” Susan Necheles and Joe Tacopina said.
