Donald Trump, a porn star named Stormy Daniels, and a publisher named David Pecker, the CEO of American Media, the company that publishes the National Enquirer, are the key characters in a history making trial. Trump’s hush money trial will be the first time that a former president faces criminal charges. The Guardian reflects that, “Trump will join the ranks of Silvio Berlusconi of Italy, Imran Khan of Pakistan, Nicolas Sarkozy of France, Luiz Inácio Lula da Silva of Brazil and Jacob Zuma of South Africa as a world leader turned criminal defendant. For the US, this is uncharted territory: even Richard Nixon, the only president to resign, was not put on trial over his role in the Watergate scandal.” There is a sense of anticipation about the trial, because many, fearful that Trump will win this November, want something, anything, to knock him off the race. This is not it. The Supreme Court has an opening to reverse the New York court.
The case is a credible threat to Trump. Trump has been charged with 34 separate counts of falsifying business records in the first degree, a felony. According to Manhattan District Attorney Alvin Bragg’s office, Trump, his then-lawyer Michael Cohen, and Pecker, conspired to make payments to Stormy Daniels to prevent her from releasing details of her sexual relationship with Trump. Trump, using the alias, David Dennison, is said to have signed a “strict contract” with Stormy Daniels, under which she agreed to keep their relationship a secret, failure to which she would pay $1 million per violation. technically, Trump could sue for defamation and other torts, but that opens him up to risks at a time when he wants to shift the focus away from the trials and present himself as a safe pair of hands. Typically, such a contract is binding. Consider, for instance, footballer Cristiano Ronaldo’s agreement with Kathryn Mayorga, who later alleged that she had been raped and that the agreement, in which she received $375,000, was to keep her silent. That case was thrown out. Courts normally uphold such contracts when money has been paid, but, given that the agreement does not have Trump’s name, and it was badly drafted and did not close the door to elements such as paternity liability. Trump’s then lawyer, Michael Cohen, was allowed to seek arbitration, but, crucially, Trump was not given this power. Furthermore, the $1 million penalties were not properly attached to reasonable damages. In short, the whole thing was a mess for Trump and that’s why he has failed to rid himself of Stormy Daniels.
Now for some cold water. Mark Pomerants, a former prosecutor in the Manhattan DA’s office, who was deeply involved in the Trump investigation, worries that the legal theory underpinning this case is untested. In his book, “The People v Donald Trump”, he points out that under New York’s felony statute, Bragg must prove that Trump falsified records in order to cover up a crime. Trump has an obvious retort: he can say he didn’t want his wife and children to know. In other words, Trump can argue that hush money payments are legal, and that it defeats the purpose of hush money payments, for him to make their true purpose known in business filings. That is a very defensible position. Now, Trump may have committed a federal crime, but nobody knows if New York can lawfully prosecute Trump for federal crimes. Pomerantz calls this a “gnarly legal question”. So far, Trump has been unable to toss out the case, or get it postponed, so, the likelihood is that Trump will have to shift to the Supreme Court.
Under the Supreme Court’s “rule of lenity”, “fair warning should be given to the world, in language that the common world will understand, of what the law intends to do if a certain line is passed.” In other words, where there is a lack of clarity about a criminal statute, its most narrow interpretation must be read, otherwise, people are not given “fair warning” that something was illegal. Although the Supreme Court is not united in its views of when this rule should be applied, this rule gives the Supreme Court cover.
If we are to beat Trump, we will have to do it at the ballot box. We cannot rely on lawyers, and the judicial system.