Election 2024: Trial of the Century?

Twenty-five years ago this month, in the heyday of the satirical newspaper/website The Onion, their editorial team published a masterful book called Our Dumb Century. The book’s conceit was that it consisted of reproductions of page 1 of The Onion, purportedly a major long-standing American newspaper, from various dates spread from 1900 to 1999. In reality, the book parodied the tendency of other news organizations to issue compilations like that, and provided witty satire of a whole century’s worth of news and trends.

One of the great running gags embedded throughout Our Dumb Century was the repeated use of the phrase “trial of the century” to describe various trials, from Fatty Arbuckle through O.J. Simpson. Which brings us to today, and the latest “trial of the century” – a former U.S. President, and currently a presumptive major-party nominee for President election, standing trial on state felony charges six months before the election.

The trial in New York v. Trump, expected to last six weeks, is not being televised. Opening arguments started this morning, followed by the prosecution calling its first witness, David Pecker, former publisher of the National Enquirer.

The theory of the prosecution’s case goes something like this.

In the waning days of 2016 election, Trump’s candidacy was under threat from accusations of sexual misconduct, including the infamous tape recording of comments he made to the hosts of TV show Access Hollywood. In this context, a woman with whom Trump had allegedly had an affair several years earlier — pornographic actress Stormy Daniels — sought a payment of $130,000 to avoid going to the press before election day about their alleged dalliance. In past circumstances Trump had allegedly convinced his publisher friend, Pecker, to insulate Trump from similar unwelcome news via something called a “catch-and-kill” — making a payment to a news source to purchase someone’s story, with the intention of burying the story rather than using it. For whatever reason, here Pecker was unable or unwilling to make a $130,000 catch-and-kill payment to Daniels.

So instead, Trump allegedly asked his counsel, Michael Cohen, to make the $130,000 payment to Daniels prior to the election, which Cohen did out of funds drawn on his home equity line of credit. Trump then, allegedly, made a series of payments out of Trump Org to Cohen to reimburse him for the payment to Daniels, disguising those payments as retainer payments for legal services provided by Cohen. Trump is being charged with multiple counts of falsification of business records in connection with his payments to Cohen, which would ordinarily be a misdemeanor. However under New York law, if that falsification is taking place in furtherance of another crime, it becomes a felony rather than a misdemeanor. And the prosecution’s apparent theory is that the uncharged other crime at hand here relates in some fashion to election finance rules.

My expectation is that this latter point will be the more interesting part of the trial: How, exactly, do the prosecutors intend to make the case that the payments made from Trump to Daniels through Cohen were in furtherance of an electoral finance crime? If Trump is acquitted of the felony charges, I suspect it will be because of an inability to prove this point.

In other news, Judge Engoron today has accepted the KSIC $175 million appeal bond in the Trump Org fraud case, with additional limitations placed on the nature of the collateral posted by Trump with KSIC and with KSIC assuming full control over the collateral.