I can’t remember when I’ve been more disturbed by a criminal trial than I have been by the Manhattan trial of Donald Trump. The prosecutors are painting a vivid picture of the former president as a vile and dishonest person, and the daily pilgrimages of Republican politicians to the Manhattan courthouse, in spite of horrific testimony against Trump, demonstrates that the party has a broken soul.
At the same time, the underlying legal theory supporting the prosecution’s case remains dubious. The facts may be clear, but the law is anything but — and that could very well mean that the jury convicts Trump before the election, an appeals court reverses the conviction after the election, and millions of Americans, many of them non-MAGA, face yet another crisis of confidence in American institutions.
Let’s first discuss the dreadful facts. Stormy Daniels’ testimony crystallized, better than that of any other witness, the prosecution’s theory that Trump ordered Michael Cohen to pay off Daniels to save his campaign and then fraudulently disguised the reimbursements. It helped answer a key question: Why would a known playboy, a person who has boasted of his affairs with his friends’ wives, suddenly be so keen to suppress details of his encounter with a porn star?
Consider the timeline. On Oct. 7, 2016, the “Access Hollywood” story broke. The Washington Post released the infamous recording in which Trump told Billy Bush, one of the show’s hosts, “When you’re a star, they let you do it. You can do anything.” Trump went on, saying he could grab women by the genitals. “You can do anything.”
The next day, a representative for Daniels told the National Enquirer that Daniels was willing to talk on the record about her encounter with Trump. We now know from Daniels’ sworn testimony that her story was going to essentially affirm the “Access Hollywood” tape. Trump used his star power to draw in Daniels and then exploited her.
At trial, she did not testify to a frivolous or joyful encounter with Trump; she testified to something far more distressing. He invited her to his hotel room, and after she went to the bathroom, she walked out to find Trump on the bed in just his boxers and a T-shirt. She did not claim he forced himself on her, but she said she left “shaking” and testified that she was ashamed.
Her testimony was so lurid and disturbing that the judge admonished the prosecution, but it also helped explain the entire hush-money scheme. Of course Trump wouldn’t want a story in the media days after the “Access Hollywood” tape that would immediately contradict the message that Trump had engaged in mere “locker room talk.” Instead, he was describing how he actually behaved.
Trump was never averse to the so-called catch-and-kill process of using money to suppress negative stories. He had conspired with David Pecker, CEO of the National Enquirer, to purchase damaging stories before, including Karen McDougal’s story of a monthslong relationship with Trump in 2006 and 2007. But the timing and details made Daniels’ story particularly damaging.
All of this is morally repugnant. And we can now place Daniels’ testimony in the larger context of what we know about Trump. A jury found him legally liable for sexually abusing and defaming E. Jean Carroll. Now we’ve heard additional sworn testimony that Trump is not only unfaithful but fundamentally predatory.
Against that backdrop, it is reprehensible that Republican politicians are marching down to Manhattan — sometimes identically dressed in Trump-inspired blue suits and red ties — to stand by their man. It’s dreadful that so many Christians still believe he’s the God-appointed savior of America.
But dreadful isn’t a synonym for criminal, and nothing about the terrible facts of the case has eased my legal concerns. From the beginning, it has been obvious that the facts of the case are damning, but the law is cloudy. The reason is simple: To secure a felony conviction, the prosecutor has to prove that Trump falsified business records with an “intent to defraud that included an intent to commit another crime or to aid or conceal the commission thereof.”
But what is the other crime? Here is where the case gets shaky. In court filings, the prosecution has argued that Trump was attempting to commit or conceal federal and state election law crimes, along with state tax crimes. The election law theory has real weaknesses, however. While I’ve long believed the hush-money scheme violated federal criminal law, I also recognize that the underlying legal theory has not been fully tested.
Cohen, Trump’s former lawyer and fixer, pleaded guilty to federal crimes in connection with this same scheme, but a guilty plea doesn’t have the same value as a court precedent. There isn’t clear federal precedent on the matter, and no federal charges have been brought against Trump on these grounds, by the Department of Justice under either Trump or President Joe Biden. In addition, the state election law that the prosecution cites may well be preempted by federal law and therefore be inapplicable to the case.
I’m not alone in these concerns. Mark Pomerantz, a former prosecutor in the Manhattan district attorney’s office, said that the case was “too risky under New York law” and noted that “no appellate court in New York has ever upheld (or rejected) this interpretation of the law.” Numerous legal analysts, including people who are no friends of Trump’s, have expressed grave reservations about the case, in large part because of the difficulty of linking the falsified records to an additional, separate crime.
To be clear, an untested legal theory is not the same thing as a weak or specious theory. If Trump is convicted, his conviction could well survive on appeal. The alternative, however, is dreadful. Imagine a scenario in which Trump is convicted at the trial, Biden condemns him as a felon, and the Biden campaign runs ads mocking him as a convict. If Biden wins a narrow victory but then an appeals court tosses out the conviction, this case could well undermine faith in our democracy and the rule of law.
I’m not as concerned about the pure partisans. Some Trump opponents may well think that the ends justify the means. To them, the prosecution has value even if it ultimately fails. And the MAGA base won’t believe any guilty verdict is legitimate, even if it’s upheld on appeal.
But there are deeper issues at stake. Our court system does not exist to guarantee political results, no matter how much one might want Trump to lose the election. And defeating Trump with an assist from a criminal prosecution that falls apart on appeal would exacerbate the mistrust that helped make Trump president in the first place and sustains his hold on the Republican Party.
Trump’s immorality and corruption should have disqualified him with Republican voters almost a decade ago, and now we have more sworn testimony that Trump is every bit as bad as we feared. At the same time, however, one does not defend liberal democracy through dubious criminal prosecutions.
There are smart lawyers who disagree with me, who think the prosecution is standing on solid legal ground. I truly hope they’re right. But I’m worried enough to be deeply perturbed. A terrible man is in the crosshairs of American justice, but immorality alone doesn’t make him a criminal.
This article originally appeared in The New York Times.