The real sleazy part of Manhattan District Attorney Alvin Bragg’s prosecution of former President Donald Trump for election interference isn’t what you think.
The sleaze factor isn’t the kind of work done by actress and director Stormy Daniels, the business of the National Enquirer, the allegations by model Karen McDougal that she had an affair with Trump, or the fact that celebrity lawyers arrange fees for their clients’ stories.
The real sleaze factor is how the media, some legal commentators, and Trump enablers keep describing the case as being about “hush money” and “porn stars”—which is wrong as a matter of legal analysis and troubling in its perpetuation of inequities in our society—and how Trump’s defense lawyers are trying to capitalize on those disparaging characterizations.
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Media seeks to benefit from the potential clickbait value of these descriptions, while Trump enablers and his defense team hope the sleaze factor will help their defense by discrediting witnesses and testimony through a sort of slimed-by-association strategy.
Calling The People v. Donald J. Trump a “hush-money” case is simply wrong.
As many people—me included—have pointed out, there is nothing illegal about paying anyone for confidentiality or silence—it’s done all the time with non-disclosure agreements. In a sense, every therapist, doctor, and lawyer is “paid for silence” because the professions require keeping quiet about their patients and clients.
Former President Donald Trump attends his trial for allegedly covering up payments linked to extramarital affairs, at Manhattan Criminal Court in New York City, on May 6, 2024.
Win McNamee/AFP via Getty ImagesThis case is about falsification of business records with the intent to interfere in an election. Put simply, it’s a cover-up of illegal campaign donations.
The money paid to Stormy Daniels to help Trump’s campaign was allegedly covered up by listing it as payment for legal services to Trump’s former lawyer and self-styled “fixer” Michael Cohen. Among the critics of the prosecution are legal commentators who claim this prosecution is “an embarrassment” because: “It’s not the crime; it’s the cover-up.”
The real embarrassment there is the apparent ignorance of the fact that covering up crimes is a crime and the Manhattan District Attorney’s office has used this theory of prosecution thousands of times in the past, albeit not against a former president for election interference.
Critics like these complain that the Manhattan election interference case is the weakest of the cases against Trump and should not go first. This view wrongly presumes prosecutors have total control over the timing of a case. The reality is that we should be grateful that a single case has even made it through the enormous obstacles to prosecuting Trump: obstacles posed primarily by inequities in society that give a rich and powerful person every benefit of the doubt; hesitation from police and prosecutors in taking them on; and, of course, lots of help from small armies of lawyers.
This point of view also smacks of a belief that a prosecution of a powerful man must pass a certain smell test for propriety. Under this prim-and-proper standard, such a prosecution must not be based upon crimes considered to be too low-class for such a high-class defendant. Lurking just beneath the surface of this point of view are darker biases.
Let’s start with the frequent disparagement of this first criminal trial of a former President of the United States as involving a “porn star”—as though that makes it too unseemly a topic for the criminal charging of a former president. This is pearl-clutching at its most insidious because it masks the sexist and misogynistic perspective underlying the disparagement of Stormy Daniels for her work.
Besides the fact that it’s a gratuitous dig—imagine saying a witness is a B-list actor—I personally dislike the use of the term “porn star.” It reminds me of my experience as a sex crimes prosecutor in which, too often, law enforcement and prosecutors failed to protect victims of sex crimes or questioned the veracity of complainants and witnesses because of their work in a sex-related job. Often, I would hear the term “kiddie porn,” which I feel makes sexual abuse of children sound like a silly or light-hearted term. Criminal charges against defendants who have allegedly sexually exploited children should not be given a moniker of being just another form of pornography.
Nor should the criminal charges against Trump—charges that are part of a series of charges against him for trying to interfere in elections—be given some moniker using the word “porn” to lessen their seriousness.
While it’s understandable that the media may want to use terms that they think will draw larger audiences, they are also unwittingly perpetuating power inequities that result in injustice.
Stormy Daniels is seen arriving to ABC's "The View" on the Upper West Side on March 21, 2024 in New York City.
James Devaney/GC ImagesCoverage that claims the prosecution in Trump’s trial is trying to play up salacious aspects of the case in an effort to hide weaknesses or distract from the presumably drier evidence of the money trail is legally inaccurate because, just as foundation must be laid through custodial witnesses like bankers to introduce business records, similar foundation must be laid about what Trump allegedly feared becoming public.
This is why the prosecution had to present evidence about the scandals and embarrassing stories that were the business of the National Enquirer and celebrity lawyers. They must establish what it is that Trump supposedly wanted to conceal and the methods by which the concealment took place. They did this through the testimony of former National Enquirer publisher David Pecker to explain how tabloids pay for stories and how that system may have been used to help Trump bury stories bad for his political campaign.
Similarly, lawyer Keith Davidson testified about his clients who entered into contractual arrangements to be paid for the rights to stories or the right not to publish them. All of this is necessary to demonstrate how Trump allegedly tried to aid his campaign by preventing one more publicized incident of his arguably misogynistic, sexist, predatory behavior towards women.
The same necessity doesn’t exist for Trump’s defense team. They could have cross-examined both of those witnesses simply by pointing out that neither of them could provide strong evidence of Trump’s personal involvement. Instead, Trump’s team seemed to try to play on stereotypes and biases about sleazy behavior—perhaps in the hope that the jury would be less likely to believe people who were tainted by working with stories involving scandalous behavior.
The defense team seems to be having a devil of a time figuring out a coherent defense strategy.
The cross-examination of David Pecker veered between trying to poke holes in his memory as though he was too old and doddering to actually remember what happened, versus also trying to make his type of checkbook journalism look improper. They did even worse with the cross-examination of Davidson in which they not only took the jury through a history of celebrity scandals, but even suggested that Davidson essentially engaged in extortion.
This last line of questioning would seem to be building towards a defense that Trump was a victim of extortion by an opportunistic lawyer rather than a candidate trying to suppress stories that would hurt his political chances.
In my view, such a defense is unlikely to work since the motivation that would make Trump vulnerable to an extortion plot to save him embarrassment with his wife and family is exactly the same motivation he would have had to save his campaign from embarrassment. Spoiler alert: Voters pay attention to embarrassing disclosures about people.
Like I said at the start, the real sleaze factor in this trial isn’t about what you think. It’s not about what Stormy Daniels, Karen McDougal, David Pecker, or Keith Davidson do for a living. The real sleaziness is in how we allow the perpetuation of disparaging biases about women to fuel the inequities that are used to protect the rich and powerful.
