I hope we can all agree that infidelity is gross, infidelity with a porn actress is also gross, infidelity with a porn actress while your wife is expecting is gross, Stormy Daniels herself is gross, and Donald Trump is gross for hooking up with her. Perhaps there should be a law that this sort of grossness is illegal, but so far, luckily for, um, a lot of people, it isn’t. So why is Donald Trump on trial in New York?
We talked to one of our favorite WTH guests, our colleague and Berkeley law school Prof John Yoo.
Here’s the theory of the case: Donald Trump wanted to cover up his affair with this person. The favored modus operandi for such concealment is an NDA — a Non-Disclosure Agreement. Money to seal the deal changed hands, a transaction that is presumably familiar to Ms Daniels. Why did Trump seek Daniels’ silence? Need we ask? Maybe he didn’t want his wife to know? Maybe he didn’t want his kids to know? Maybe he didn’t want the public to know? Duh.
Now, here’s the rub (no pun intended): None of this is illegal. It happens, sigh, all the damn time. All. The. Time. One might hope that it didn’t happen to presidents of the United States, but Bill Clinton disabused us of that idea. So how is the State of New York prosecuting Trump in this case? Welllll….. Trump used his company to pay Stormy off. He mischaracterized that payoff in bookkeeping. If this sounds like a tax violation that one might get a fine for, yes, maybe. But that’s not what Alvin Bragg, the caped crusader of Gotham, wants. He wants Trump’s head on a stick.
So, from this mischaracterized piece of bookkeeping, Bragg takes a leap and announces that Trump committed fraud with a view to affecting a federal election, that paying off the actress is, in effect, a campaign finance violation, and therefore Trump should go to jail. If, at this moment, you scratch your head and ask how New York is prosecuting an alleged federal campaign law violation, join the club. Absent that nexus, however, there is no real case.
John Yoo helps explain two critical points:
It is the position of the Biden administration that Donald Trump did not commit prosecutable campaign finance violations — if he had, presumably the Department of Justice would have pursued such charges; and
It is the position of the Biden administration that states cannot prosecute violations of federal law.
Let’s come back to the rights of this case. Is it gross? You betcha. Piglike behavior? Indeed. Possibly dodgy vis a vis bookkeeping? Kinda. Election interference? Uh… Were all those stalwart women standing up for Bill Clinton insisting he did not have sex with that woman committing election interference? Or were they simply committing democracy? Yeah.
Why do we care? Because the law is the law. It should not be abused to derail the candidacy of someone a district attorney doesn’t like. Even someone gross.
Last note: The consensus among smart lawyers is that Trump will lose this case, although it will likely be reversed on appeal. Why? Because all of the flimsiest aspects of the case have already been accepted by the presiding judge. In other words, Trump’s lawyers can’t attack the premise. Absent that, they are reduced to arguing that Trump didn’t know Stormy was being paid off by his also gross lawyer, a hardly credible claim.
Like so many of the issues that will headline this election, the question you must ask yourself is, does the desire to destroy the uniquely flawed Donald Trump to “save democracy” merit the systematic dismantling of rule of law and the guardrails of the Republic? The answer should be obvious.
HIGHLIGHTS
Why doesn’t the case against Trump in New York have legal merit?
JY: Why the case doesn't really have legal merit is none of these actions are themselves illegal. Paying people for nondisclosure agreements is not illegal. Trying to combat negative news stories is not illegal. The only thing that Alvin Bragg here in this New York case claims is illegal is that Trump listed the payments for the NDAs under the wrong heading in his own corporate books. That's one. Then he says, "That allows me to claim that the whole thing was actually a campaign contribution that Trump made to himself but didn't report, and that's a felony."
Aren’t campaign finance violations a federal charge? Does a New York State prosecutor have the authority to go after Trump for that?
JY: This brings us all back to the wisdom of Justice Antonin Scalia or Justice Clarence Thomas because they have said in opinions that have nothing to do with this, but have made clear that only the federal government can prosecute violations of federal law and only state governments can prosecute violations of state law. The reason why they say is because if there are state officials out there running around charging people for violating federal election law, well the President can't tell them to stop if he doesn't want them to go ahead because the President can't fire state officials. These are charges, Dany, that are these campaign contribution charges were looked at by the Justice Department.
Mind you, the Biden Justice Department these days is grasping for any straws they can find to go after Trump. The Federal Elections Commission looked at this. They decided Trump committed no... Well, they decided there's no case they could bring. There's no prosecution. Nevertheless, Bragg then comes in and says, "I want to charge a violation of federal law, but I can't do it constitutionally. Instead what I'm going to do is I'm going to say Trump violated New York bookkeeping law. The New York bookkeeping law he violated allegedly is he cooked his own books to commit some other crime." That's actually the New York crime. That other crime though happens to be federal election law.
If a state wanted to charge me with violating state law for allegedly violating a federal law, do I need to be charged with violating that federal law?
JY: Not only is this a great question, but the Biden administration has already explained this to us in the immigration context. Remember what they're arguing against Governor Abbott in Texas. Texas has said, "We're allowed to detain illegal aliens who are here in violation of federal immigration law." That's exactly what you're talking about, Dany. Can a state say, "We're going to grab you because you're violating the federal government's law."? The Biden administration is litigating up and down all the way to the Supreme Court saying, "No, no, no, that violates Justice Scalia and Justice Thomas's rule that only the federal government can charge you with a violation of federal law." Alvin Bragg is making an argument that runs directly counter to the position the Biden administration is taking in the immigration cases with Texas' executive example that you're talking about Dany.
Can you explain why in Texas, Governor Abbott is wrong for trying to enforce federal law?
JY: Under existing law, under Justice Scalia's precedent, which actually the Biden administration is waving up and down every time these cases appear, is that a state can't try to secretly take over the job of the Justice Department or the federal government by, because they're not allowed to enforce federal law. A state officer's not allowed to arrest you or me, well, maybe Marc, but not you or me, for violating federal law.
You can't cheat on that by saying, "Well, if you violate federal law, that's also a violation of state law too." You can't just piggyback on top. If you did that, Texas could pass a law saying, or New York City could pass a law saying, "All violations of federal law are also violations of New York law or Texas law. We'll just take over the job of the federal government in our state."
Now you can say, "Why can't they do that?" That's Justice Scalia's point is, and this, you guys will love this as I do, this is, the unitary executive reappears. That evil Dick Cheney unitary executive. The deeper theory behind it is only the President under the Constitution has the responsibility to enforce the law of the federal government. Scalia said, "If governors and DAs are running around enforcing federal law, that seizes that power from the President. The President can't control them. If he can't control them, he can't live up to his constitutional duty."
It seems as though Congress and the White House have lost interest in defending their prerogatives and jurisdictions. Why is the Justice Department comfortable allowing Bragg to prosecute a federal crime?
JY: It's a bigger picture that I actually gain all the time when I listen to your guys' podcasts because you guys go through this in lots of other areas where this has happened where the Biden administration, is they see Trump as such a threat to the democracy, such a threat to the Constitution or the political order that they're willing to waive all normal institutional arrangements and rules in order to get them. And the problem with that is, and I think you saw that in the oral arguments about whether President Trump has immunity in the Supreme Court last week, is what we ought to worry about is, what is the future incentive that this is going to place on future presidents, on future Congresses once, as you say, Dany, you tear down these institutional walls and these delineations about who's supposed to do what in our government? And you just throw it all at Trump because he's such a bad man. You're going to ruin these institutions and rules for everyone else in the future.
Is the gag order imposed on Trump in the New York trail constitutional?
JY: I think ultimately higher courts will find parts of the gag order unconstitutional, but it shows how over his head this judge is, because he's treating this like this is just a regular criminal trial of some drug dealer or some organized crime figure. And in those cases we do allow that… So he's treating it like, oh, this is a defendant who's going to try to coerce or intimidate witnesses.
And then we do allow for First Amendment rights to be restricted in that case, but that totally ignores the core purpose of the free speech clause, which is for all of us to engage in political speech that's relevant to picking our elected representatives. That's the founders. That's the key part of the free speech clause, was not to protect nude dancing or crosses and urine exhibits. It was to make sure we could speak about elections and candidates. And the gag order is preventing Trump from doing that, adding information for all of us to use when we choose who to vote for.
But Trump is going way beyond discussing the merits of the case and attacking the families of individuals associated with the court. Wouldn’t this gag order be rather unusual in a “normal” case?
JY: I totally agree with Dany that, in a normal criminal case, this gag order would not be unusual and the defendant would not be able to do what Donald Trump is doing. The only thing that really makes it different is that he's also the major presidential candidate in the opposition party right now. He is the leading alternative to the incumbent political party. And there I think the founders wanted free speech to be the broadest and most protected. So that's why I think this judge is just so over his head. This judge is not someone who sits there and thinks about Constitutional issues all day. He's a guy who just makes sure trials run on time, and he doesn't understand these important dimensions because this is a first of its kind case.
Can I say? The second thing is we wouldn't have to face any of this if the DA here, just like the Justice Department in other cases, hasn't taken the unprecedented step of prosecuting a former president. That's why we've never had to think about these issues and these conflicts before, because we've never had a former president prosecuted. So the bigger message I wanted to leave you with was, yeah, we're all focusing on the courts and on judges. And in a way that distracts us from the real responsibility for this, I think. In this case, in the immunity case, in the special counsel case, it's Joe Biden and the Biden administration and these DAs have chosen to cross the rubicon of prosecuting a former president.
And so that's why we're getting all these issues like Dany's talking about for the first time ever, that we have no precedence on, that we have no real answers on because we've never faced it before. But it's not because of the courts. It's not the court's fault that we haven't faced it. We have an absence, I think, of statesmanship and good judgment, and we're letting the law take over.
Can you speak to us about Judge Merchan’s rulings and why Trump’s lawyers cannot argue that non-disclosure agreements are perfectly legal?
JY: So first, the reason why the Trump lawyers have to do this is because of what we talked about in the beginning. They would rather fight this out on the grounds that we just mentioned, that the DA here has no power to enforce election law. But because Judge Merchan has rejected all those immediately, they have to now fight... this is now like trench warfare. Everything that the DA does, they have to respond to.
The natural lawyer's defense is always going to be, I'm just going to attack and poke at the prosecution. They have to prove beyond a reasonable doubt that all these facts are true. But the reason they're doing that is because Judge Merchan has removed their ability to make any legal arguments. He has accepted this legal theory that the DA has put out. So all that Trump's lawyers can do now is just try to prove that the facts don't bear this weird, I think unconstitutional, theory of prosecution.
But I think you're right, Dany. That means that the prosecution has the advantage. All they have to show here is that Trump ordered the payoff of these women for non-disclosure agreements and that he mischaracterized the bookkeeping. And all that the prosecution has to prove is that those facts are true. And even though the testimony that we're watching every day shows that Trump didn't want these stories out, that he found them embarrassing, you're also hearing witnesses say, "Yeah, because we're in the middle of a campaign. It would damage the campaign." That's all the prosecution needs to do to win under their theory.
Do you think this case will be reversed on appeal?
JY: So, I could easily see the case being reversed on appeal. It should be reversed on appeal. Might have to go to the U.S. Supreme Court to be reversed on appeal, but all that's going to be too late for Trump. Right? You're talking, appeals take years, right? What solace is it going to be to Trump a year from now, if the New York Court of Appeals, it's called, reverses the judge on this. Or the U.S. Supreme Court two years from now gets this case and says, "Oh, we are with Scalia and Cheney. We're going to reverse this prosecution."?
So actually the prosecution is doing pretty well, putting the facts together. The one thing you can't predict is all Trump needs is one juror out of the 12 to say, "I disagree." Because you have to have a unanimous jury to get a conviction.
How will this case impact Trump if he wins the election?
JY: So if Trump loses the election, then it'll just go forward, and maybe then he will want to win on appeal a year from now or two years from now. Interesting question is, what if Trump wins? So this is going to drag us back. It's like Michael Corleone in Godfather III, "Every time we try to get away from the Clintons, they pull us back in." Because guess what? The leading precedent on this issue is, Clinton versus Paula Jones. That's the only case out there that tells us what happens when a sitting president is being prosecuted or sued for things that don't involve his presidency while he's in office.
While he's in office, as you said, Marc, he's free from federal prosecution. The minute he gets into office, he can fire Jack Smith. The minute he's in office, he can pardon himself of the special counsel investigation. But the pardon clause doesn't extend to state crimes, as you say. And Trump's control over the Justice Department doesn't give him control over DAs. And so, those cases can go forward. The DA case in Georgia with my fate, my... You know Fani Willis, who I call the real prosecutors of Atlanta down there. I've got that copyrighted. I'm writing a miniseries, a reality show about this.
And then the DA in New York, Trump can't control them as the president. And so, Clinton versus Paula Jones talks about how they're allowed to go forward, you just have to schedule it well so that it doesn't interfere with the president's duties. I don't know how you do that. I'm sure Trump will say, "Please defer these until after I'm out of office." That's what Clinton tried to do. But the Supreme Court said no in the Jones case.
Will Trump win the presidential immunity case that is before the Supreme Court?
JY: I am really surprised how well Trump did at the oral arguments of the court, and this is why. If you expected the court to follow the method to interpreting the Constitution that followed in the Dobbs case, which overturned Roe versus Wade or any of the normal constitutional cases, Trump should lose. Because the Court has said, "We look at the text, there's no immunity for presidents in the text." The constitutional history, the history, Alexander Hamilton has a Federalist paper which says the direct opposite of what Trump's saying. He says, Hamilton basically says, "After you leave office, even if you're the president, you can be prosecuted for crimes you committed in office."
So, I can't see how the conservative justices would write the opinion saying Trump has immunity, if they followed what they've done in cases like the Second Amendment cases like abortion. But when you listen to the oral argument, 90% of the oral argument was on the grounds that Trump wanted, "Oh, is it a good idea to have presidential immunity? How would we limit presidential immunity and make sure it only applied to the right things?" Nobody was talking, except for a few questions, about, does the immunity even exist? It's almost as if the justices had already assumed what Trump wanted them to assume.
Why do you think the conservative justices might rule in favor of Trump on immunity? Is it just partisan politics?
JY: I don't think it's a partisan politics. What I think, and there are good conservatives who are taking this view, they're worried about, think about the incentives on future presidents. We've worked in politics, we know that elected leaders have to make tough calls under the pressure circumstance that involve the safety of the nation. What if they have to worry about being prosecuted? Most of the discussion, I think for good reason, was, this could distort the way, not Trump makes a decision or Biden, but the president's after him. Do we want them to worry about being prosecuted when they order a drone strike, like the mistake that was made in the Afghanistan withdrawal?
Right? So, I think that the justices, I don't think it's a wise thing to do. But they're falling into this trap, I think, of trying to fix the Constitution because everyone I think says, "It would be a better idea for presidents not to prosecute each other." Even though the constitutional text doesn't say that there's that prohibition, we might read it in for good government.
What should Americans take away from these cases against Trump?
JY: One thing we should all realize, I hope everyone has learned this from watching what's going on, a trial judge is the king or queen of their courtroom. What they say goes, and if Judge Merchan wants this tried and gets to verdict fast, it's going to get done and it's going to get done fast. And I'm sure we're going to get a verdict before the conventions, easily before the conventions.
Read the full transcript here.
SHOWNOTES
Former Trump aide Hope Hicks testifies 'Access Hollywood' tape roiled campaign (Reuters, May 3, 2024)
5 takeaways from Day 10 of the Trump trial: ‘What have we done?’ (The Hill, May 2, 2024)
Judge Fines Trump for Contempt in Hush-Money Case, Threatens Jail Time (Wall Street Journal, April 30, 2024)
Supreme Court Appears Open to Some of Donald Trump’s Immunity Claims (Wall Street Journal, April 25, 2024)
Trump Advisers, Including Giuliani and Meadows, Indicted in Arizona (Wall Street Journal, April 24, 2024)
Trump is turning these legal setbacks into 'political gold': John Yoo (Fox News, May 2, 2024)
The doors are open to criminalize campaigns: John Yoo (Fox News, April 28, 2024)
Trump's Immunity Case Is Weak—But He Doesn't Need It to Prevail (Newsweek, March 7, 2024)
Trump accuses judge of making hush money trial ‘as salacious as possible’ (The Hill, May 3, 2024)
Merchan’s Rulings Induce Trump’s Lawyers to Adopt Self-Defeating Defense (National Review, May 2, 2024)
How Judge Merchan Is Orchestrating Trump’s Conviction (National Review, April 29, 2024)
Being Stuck in a Courtroom Is Just What Trump Needed (New York Times, April 25, 2024)
I Thought the Bragg Case Against Trump Was a Legal Embarrassment. Now I Think It’s a Historic Mistake. (New York Times, April 23, 2024)
How Trump's trial is (not) changing the polls (ABC News, May 2, 2024)
Poll: Majority of Americans aren’t paying attention to Trump’s hush money trial (PBS News Hour, May 1, 2024)