In Trump’s New York ‘hush money’ case, prosecutors push election angle

It is a blockbuster legal case, set to dominate headlines for weeks to come.

On Monday, Donald Trump becomes the first United States president, past or present, to stand trial in a criminal case. Jury selection is scheduled to be under way this week.

The trial unfolding in New York centres on sensational allegations: that Trump made hush-money payments to an adult film star, Stormy Daniels, with whom he allegedly had an affair. He has been charged with 34 felony counts of falsifying business records.

But despite the tabloid-worthy details, legal experts say something more fundamental is at the heart of the trial: how American elections unfold — and how candidates should be held to account.

The hush-money payments allegedly happened against the backdrop of the 2016 presidential race, and prosecutors are expected to focus on whether efforts to conceal information could have influenced Trump’s victory in that election.

The more sordid details have nevertheless dominated public perception of the case, said Shanlon Wu, a former federal prosecutor and political commentator.

After all, Trump is accused of trying to buy Daniels’s silence over an affair that allegedly occurred while his wife Melania Trump was pregnant with their child, Barron.

“It’s become shorthand to refer to this as the hush-money case or, worse, as the porn star case,” Wu said.

But make no mistake, Wu said: The trial will have broad consequences, and its outcome may reflect on the three other criminal indictments Trump faces, particularly those that concern his behaviour during the 2020 election.

Prosecutors are set to argue that the hush-money payments were “part of a deliberate plan to help Trump’s 2016 election”, Wu explained.

A key pillar of that argument will be to establish Trump’s “willingness to circumvent normal rules and laws about how elections are done, in order to win.”

“That’s a really important point to make,” Wu added, calling the trial “a preview of his whole attitude towards the elections”.

Historic indictment

The path to Monday’s trial began in April last year. That is when Manhattan District Attorney Alvin Bragg unsealed his indictment against Trump.

In so doing, he made history: Never before had a current or former president faced criminal charges of any kind.

Trump has since been charged in three more criminal cases. In Georgia, he faces an election interference case. And on the federal level, he is facing one indictment for attempting to overturn the 2020 election and a second for allegedly hoarding classified documents.

The New York indictment, though, relies on a state law designating that falsifying business records is a misdemeanour crime — but doing so with “intent to defraud and intent to commit another crime” is a felony.

The indictment did not initially identify the other crime in question, and Trump has not been charged with a secondary crime.

Prosecutors, however, released a subsequent “statement of facts” saying Trump “violated election laws”.

The falsifications, they said, were part “of a scheme with others to influence the 2016 presidential election by identifying and purchasing negative information about him to suppress its publication”.

Months of court filings have further spelled out the possible secondary crimes in question, including violating federal election law governing spending disclosures and a New York state law that criminalises efforts “to promote or prevent the election of any person to
a public office by unlawful means”.

Such laws are meant to protect “voter informational interest”, said Ciara Torres-Spelliscy, a law professor and fellow at the Brennan Center for Justice

“The essence of the Manhattan district attorney’s case against ex-President Trump is his alleged illegal use of his corporation to hide his infidelity from American voters on the eve of the 2016 election,” she told Al Jazeera.

Torres-Spelliscy pointed to court precedent establishing voters’ rights to certain information about spending and campaign activities during an election season.

That transparency is meant to ensure voters have the information they need to choose the candidate they feel best represents their interests.

“The [US] Supreme Court specifically ruled that disclosure helps citizens make choices in the political marketplace,” Torres-Spelliscy said.

“Hiding the hush-money payments — if they were meant to influence the 2016 election — would undermine this key interest for American citizens.”

The judge overseeing Monday’s trial, Juan Merchan, had previously ruled in February that the possible federal and state election violations were “legally sufficient” to move ahead with the felony charges.

The prosecutors’ strategy

Legal experts expect the prosecution will have a relatively easy chance of establishing that Trump falsified business records by misrepresenting payments he made to his former lawyer and personal fixer Michael Cohen.

The prosecution has alleged that Trump filed those charges as business expenses, when they were actually used to reimburse Cohen for the payments to Daniels.

But the falsification on its own would only constitute a misdemeanour crime. In addition, hush-money payments are not necessarily illegal.

The real battle is, therefore, to establish that the hush-money payments were aimed at tweaking the 2016 presidential race or committing some other related crime.

To land a conviction on felony charges, District Attorney Bragg will almost certainly have to lean into loftier themes related to US democracy, according to Cheryl Bader, a professor at Fordham University School of Law in the Bronx.

“I think Bragg has to overcome the challenge of this quote-unquote oversized defendant facing what may viscerally really feel like a minor technical reporting violations,” Bader told Al Jazeera.

“He has to convince jurors that hushing Stormy Daniels is tantamount to election manipulation — and that Trump knew he needed to fake a paper trail to hide the hush-money payments, so it wouldn’t look like he paid her off.”

In their indictment, New York prosecutors also detail other instances where Trump’s team sought to stifle potentially damaging information to avoid political fallout.

They allege Trump entered a “catch and kill” agreement with the publisher of the National Inquirer, a tabloid, to quash two other stories: one about an alleged affair with Playboy model Karen McDougal and another from a former doorman who claimed Trump fathered a child out of wedlock.

The agreement, they said, saw the Inquirer buy the rights to the stories, only to bury them on Trump’s behalf while he campaigned for office.

That is why legal observers believe the timing of the payments is particularly significant. They were made in the waning days of the 2016 election, after the release of an Access Hollywood videotape in which Trump bragged about grabbing women’s genitalia.

Bader added that prosecutors will not have to “prove beyond a reasonable doubt that [Trump’s actions] would have actually impacted the election”. But they will have to prove that the falsifications were done with “intent” to commit another crime.

“How specifically the prosecution will try the case, in terms of these sort of underlying campaign finance violations, is still an open question,” she said.

Wider ‘atmosphere’ likely to affect trial

But those questions are like to be answered in later weeks, as the trial unspools.

Monday will focus on jury selection, to whittle down a pool of hundreds of prospective jurors to just 12 names and six alternates. That process is expected to last as long as two weeks.

Afterwards, there will be opening statements and witness testimony. Daniels and Cohen are both expected to testify. It is unknown if Trump or his wife, Melania, will take the stand. Closing arguments, jury deliberation and an eventual verdict will follow.

The proceedings are expected to end before the presidential election in November, possibly the only one of Trump’s four pending trials to do so.

Wu, the former prosecutor, explained that it will likely be nearly impossible for Trump’s defence to completely separate the 2016 allegations from events that have happened since.

In particular, he pointed to Trump’s unfounded claims of fraud during the 2020 presidential election and his role egging on supporters who later stormed the US Capitol on January 6, 2021.

Trump has repeatedly denied wrongdoing, both in the New York case and in subsequent criminal indictments on election interference.

But Wu believes the setting of the New York trial may be an advantage for the prosecution, given the region’s reputation for leaning left.

While other parts of the country might be more sympathetic to Trump’s claims, New Yorkers are more likely to see the 2016 election violation claims as “very much part of the continuum for Trump and his enablers”.

The jurors are “all going to be pretty much aware of what’s going, and that does not bode well for Trump”, Wu said. “I think atmospherically this is a big help for the prosecution.”