The Critical Factor of the Stormy Daniels Case

In the criminal case now unfolding in a Manhattan courtroom. Donald Trump is accused of having a sexual encounter with Stormy Daniels, finding a way to pay her to keep quiet about it, and then disguising those payments as a business expense. The facts are all very tabloid-y. They also took place before the 2016 election, long before January 6 or the “Stop the Steal” movement, or any of the more serious threats to democracy we associate with Donald Trump.

But the Stormy Daniels case has distinct and simple advantages: In the other more sprawling cases that deal directly with election interference, Trump’s lawyers have been remarkably successful at piling on delay tactics and are unlikely to go to court any time soon. But in the Stormy Daniels case, the defendant has been summoned, the jury is being selected, witnesses have been called. And the D.A., Alvin Bragg, has honed his case that the hush money payments were in fact an attempt to interfere with the election.

In his indictment, Bragg lays out a detailed case for why the former president, in hiding the payments, intended to violate both state and federal election laws. It’s a comparatively indirect case he has no guarantee of winning. It will not bring legal resolution to the central question of whether Trump interfered in the 2020 election. But it makes the criminal case much harder to dismiss as just an old grudge about an affair.

In this episode of Radio Atlantic, staff writer David Graham tests the importance of the Stormy Daniels case with the Al Capone theory: Can you most effectively address the most serious question of our political moment with the arguably least serious case? And he explains how, whatever the outcome, Trump might benefit from, and even enjoy, this new form of courtroom campaigning.

Listen to the conversation here:

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The following is a transcript of the episode:

[Music]

Newscaster 1: Donald Trump is facing more legal trouble.

Newscaster 2: He’s now facing four different felony trials as he runs for president.

Newscaster 3: Donald Trump is facing 37 criminal counts over retaining national-defense information.

[Overlapping news audio]

David Graham: It’s been overwhelming covering these cases. At the beginning, it was very exciting and sort of surreal, and then as they piled up, it became really hard to keep track of all of them.

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Hanna Rosin: This is David Graham, the Atlantic staff writer who’s following all of Trump’s legal entanglements.

You may remember the civil trials Trump faced in Manhattan. Now on appeal, they total over half a billion dollars in judgments.

But Trump also faces criminal charges in four separate cases: one in Florida about classified documents, one in D.C. about attempting to subvert the 2020 election, another about election subversion (that one is in Georgia), and, lastly, the one we are talking about today.

It involves hush-money payments to Stormy Daniels. And the main and very important distinction between this case and all the others? Trump’s lawyers have failed to bog it down with infinite delays. It’s actually underway, right now—the first criminal trial of a former president.

I’m Hanna Rosin. This is Radio Atlantic. And this week, why this one matters.

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Rosin: So this week is the first time a former president has faced a criminal trial. What’s happening, and how big of a deal is it?

Graham: You know, it’s funny. What’s happening now is just jury selection. So we say the trial has started, but in a lot of ways, the main event is still to come. And this is kind of the dry, boring stuff—but dry, boring stuff that matters so much down the line. But here we are, you know, in this case about Trump paying hush money and whether he covered that up and whether it was an attempt to interfere with the election, as prosecutors say.

Is it a big deal? I mean, it is. It’s so weird. In the Trump era, I feel like, we’re like, Is it a big deal for the former president to be on trial for this particular charge? Which is both a valid question and also kind of a bonkers one. Of course it’s a big deal, but also not as much of a big deal as some of the other things. So I have a hard time calibrating it myself.

Rosin: Well, we can even start more elemental. Is it a big deal that a former president is sitting in the defendant’s chair at a criminal trial? Like, is that alone a big deal? Never mind the substance of the trial, which we will get to.

Graham: I think that is a big deal. And I think it’s a big deal that has been a little—we’ve been already acclimated a little bit to that by him sitting in the defendant’s chair for so many civil trials, and it’s possible to maybe even overlook what a big deal it is just for him to be there.

Rosin: Although the penalty in a civil trial is money. The penalty in a criminal trial is a conviction, like an actual criminal conviction. So even on those grounds alone, this seems unprecedented.

Graham: Oh, absolutely. In those cases, what he stood to lose was money. And in this case, he stands to lose potentially his freedom and certainly his clean criminal record, and I think that’s pretty different.

Rosin: Can you give me a brief explanation of the case? What is this case about?

Graham: It is a little bit arcane. Let me see if I can sum it up without missing anything, but also not getting bogged down.

Rosin: And also tabloidy. It’s simultaneously arcane, tabloidy, and important.

Graham: Well, it’s literally tabloidy too. I mean, this involves tabloids. You know, people may remember the case: So, Trump had these sexual liaisons with Stormy Daniels and other women, allegedly. He denies them. But the basic allegation is that Trump paid to keep their stories quiet. This is a complicated maneuver involving these “catch-and-kill” deals, where the National Enquirer would pay for the rights to the story with the express purpose of not running it.

And then money. Trump would also pay them—the money would come from Trump via Michael Cohen, who was then his fixer. And these things were recorded as business expenses. And what the prosecution alleges is that, in fact, this was political: The whole goal here was to keep the public from knowing about these allegations of sexual relationships, and that was an attempt to interfere with the election.

Rosin: So, essentially, it’s two steps. The first step—the first allegation—is business fraud. Like, you’re paying money and covering it up. It’s like an accounting scheme.

Graham: Right.

Rosin: So that in and of itself is a crime, but in the scheme of things not a deeply serious crime. Maybe the reason this takes on a different level of importance is because the prosecutor, the D.A. Alvin Bragg, is trying to link that to a form of election interference.

Graham: Right. And so there have been all these complaints: Well, you know, this case isn’t all that serious. It’s often compared to the classified-documents case in federal court in Florida or the election-subversion case in federal court in Washington, D.C., in an unflattering way. And what Alvin Bragg has tried to say is, No, guys. This is also an election-interference case. Trump was trying to keep the public from learning this information, which would interfere with voters. And so this is just as serious as these other cases. This too is election interference.

And I think that’s maybe more of a moral point than it is about the actual substance of the law. But when we’re thinking about how serious this is, I think a question that people have to think about is, you know, what are the stakes in this case? And that’s the prosecution’s argument.

Rosin: Right. We do have all these complicated cases, like the one in Georgia about election interference. But people see the one in New York as less serious because if he’s convicted there, it would be for bookkeeping and for under half a million dollars.

Graham: Yeah, this is what I call the Al Capone objection. You know, they got Al Capone for tax fraud, not for being a notorious mobster. I don’t know what to say to that, because I think it is true and also not true. Like, you know, let’s be serious. This is not as serious as the election subversion we saw in 2020. But also, you know, if they’re able to prove that he broke the law, then he broke the law.

Rosin: So, can we stick with the Al Capone example for a minute? Because I think it’s, actually, a pretty important way to think about this. I’m not calling our former president a mobster, so just leave that aside for now. It’s just a useful legal metaphor. In cases involving RICO statutes and extremely complicated crimes, like the election-interference cases—they’re unbelievably complicated and, in fact, the president’s legal team has managed to bog them down for months and months and, in some cases, years.

Graham: Right.

Rosin: It seems like, just like Al Capone and tax evasion, here you have a case that, even though less on paper is at stake, it’s straightforward and achievable.

Graham: I think that’s exactly right.

Rosin: And so you do end up getting Al Capone on tax evasion for a reason, because that’s a gettable offense.

Graham: Right.

Rosin: And none of these other cases are likely to move along before the election, right?

Graham: That seems right. You know, we just don’t know. I think the wild card there is what happens in the election-subversion case. The Supreme Court is going to hear that next week. We’ll see how fast they rule. It’s possible that we could see that case moving before the election. But you know, unless they move really fast, I think it’s easy to imagine not.

Rosin: Right. I think the last thing I want to say about this Al Capone metaphor is: So is the idea that if there is cause to hold Trump accountable for not playing by the rules, for any kind of attempt to interfere in democratic elections, this case is the last chance to do it? The only chance to do it?

Graham: It seems that way.

Rosin: Yeah. Okay. So is that a reason why this case is important? Maybe.

Graham: Yes.

Rosin: Okay. So who’s convinced who now, at the end of this?

Graham: I don’t know. I think over time, I have become more convinced of this case being serious. And part of that is, you know, we heard these challenges early on to the statute of limitations and the application of the law, and there’s still places where Bragg’s team could lose this, but he’s cleared some of those bars, including, notably, the statute of limitations. So I think he’s quietly proven that this case is a little stronger than some of its critics said at the outset, and that has helped to convince me.

Rosin: Let’s get into the implications for the election. What does this mean for his campaign? What does it change for him having to sit in that defendant’s chair for the next few weeks?

Graham: You know, we’ve heard of a whistle-stop campaign or a front-porch campaign, and now he’s running a courtroom campaign.

Rosin: Did you make that up, or does everyone say that?

Graham: I don’t know if someone else has made it up, but I did just come up with it on the spot as far as I know.

Rosin: That’s good. Courtroom campaignTM.

Graham: He can’t be out holding rallies. He can’t be out doing events. He can’t be out glad-handing. And, you know, this looks like an impediment to him. It may actually be something he likes. He has been holding not that many rallies so far this season. They’re expensive. I think they’re a hassle. He drones on. They’re not necessarily always that successful.

And, you know, he can go to this trial, where there are gonna be dozens and dozens of cameras on the courtroom and on the courthouse when he’s coming in and out. And he’s using that to try to get attention. So he has to run in a different way, but maybe this is actually to his advantage and allows him to sort of create the kind of media spectacle that he loves.

Rosin: Interesting. So it’s to his advantage because, one, it’s a free media spectacle. Like, we’re talking about this. There’s probably hundreds of reporters in New York. He is going to get a lot of coverage. Are there ways that he’s leaning into it, making that part of his message?

Graham: Oh, totally. He is just loving playing the victim. You get this in his fundraising emails. He’s always been sort of a high-volume spammer on emails. But the kinds of emails we’ve seen the last couple months, I think, are a different thing. He talks about miscarriage of justice, and They’re persecuting me, and They’re coming for me because I’m between you and them. And there’s just tons of this stuff. And so there’s both that stuff, and then I think you see him trying to draw the court system into battles that he thinks will benefit him politically.

Rosin: What do you mean?

Graham: Oh, anytime he picks a fight with a judge. So in this case, he’s been going after Juan Merchan, you know, saying his daughter’s a Democratic operative, saying that he can’t be impartial, blah blah blah.

Rosin: So [he’s] trying to portray the justice system—I don’t know if it’s part of the deep state—but as a kind of political cabal organized against him.

Graham: Right. Well, I guess it works in a bunch of ways. Like, one, he’s saying that Alvin Bragg is George Soros’s favorite prosecutor. So he’s saying this is biased, and he’s saying that, you know, this is a Biden prosecution. There’s no evidence that Joe Biden is directing this. In fact, Joe Biden is trying to stay as quiet as possible about this. But that’s what he does.

Then he wants to draw the judge into things. And I think that works in two ways: One, he can argue that the proceeding is totally, you know—it’s a kangaroo court, and they’re out to get him. And then, if he can draw the judge into engaging, maybe he can make that point even more salient.

And so that’s what we saw, I think, in the civil case with Justice Arthur Engoron. He, you know, wanted Engoron, it seemed like, to fine him, to gag him, to say critical things about him. Because then he can say: Look. See, I told you. I told you they were out to get me, and the way he’s behaving proves that they’re out to get me.

Rosin: Yeah. I mean, do you have a sense, or has it been reliably polled, how this plays outside with his audience? Because, for example, the mugshot. Like, he’s gotten so much mileage from that mugshot. It’s on a lot of T-shirts.

Graham: I think this works like a lot of Trump rhetoric going back to the 2016 campaign, where it really revs up his base. And you see in the polling, they think he’s being persecuted. They think the justice system is biased. They think that these judges are tools of the Democratic deep state, or whatever.

And on the other hand, it doesn’t do that well with other voters. It’s not winning over many independents. It’s turning some of them off. So, you know, he’s really good at turning up the temperature for the base but often at the expense, potentially, of turning off other people. And I think that’s going to be the case here, too.

Rosin: Interesting. And do we have any idea, in greater detail, how that could play out?

Graham: You know, it seems to be the case that a high-turnout election probably helps Trump. And there’s a lot of people who support Trump but are infrequent voters. And so he really does need to get those people fired up. But, you know, there’s a risk to it on the other side.

Rosin: Right. I see. One other thing I’ve noticed in keeping with this theme, as I’ve seen him on the campaign trail and in rallies the last couple months, is how much he closely identifies all of a sudden with the January 6—as he calls them, “the hostages”—talking about all of them as a group being unfairly persecuted. I feel like that’s coming up more and more in his speeches.

Graham: That’s exactly right. And he’s done that a little bit for a while, but it is becoming, really, a central part of his rallies. He’ll play these recordings of the January 6 choir. He talks about this hostage or sort of martyr attitude, and it’s become the centerpiece of a lot of these rallies.

Rosin: Yeah, and when I’ve seen him do it, I have to say, it feels less, who can know—I’m talking about intent here—less strategic than it is deeply felt and furious. It doesn’t feel like a ploy. It feels angry.

Graham: I think that’s right. I mean, it’s been interesting with a lot of Trump things that started out seeming like shtick and have started to feel like he really believes them, insofar as he believes anything. You know, I think about this with the way he talked about the media. Like, he blasted the media in 2016, and it was nonsense.

He loves the media, and he can’t resist calling reporters. But, over time, I think it curdled into a pretty serious enmity. And I think that’s true of the kind of deep-state rhetoric, and I think it’s true now about the court system. You know, after January 6, there was a certain amount of opportunistic talking about these people.

Rosin: Theatrics.

Graham: Yeah. I mean, and he waffled. He was like, On the one hand, I told them to go home. I called for a peaceful rally. But also, Why are they going after them? And also, Antifa revved this up. And you could see him sort of grasping for what the right messaging was. And as the court system has zeroed in on him, you see him coming around to that sort of hostage rhetoric.

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Rosin: Alright, well, depending on how long jury selection takes, this trial could be a matter of weeks. It could even stretch to a couple of months. After the break, David and I get into the meat of the trial.

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Rosin: So let’s get into it. How has Trump behaved in the run up to this trial?

Graham: He’s mostly been focused, as far as I can tell, on impugning the prosecutor and impugning the judge. So rather than going after the specifics of the evidence, he’s saying this is a political prosecution, this judge is biased.

And then, of course, [he’s] going after Michael Cohen, who we expect to be the star witness, who was his fixer, who was involved in these payments, lied about the payments to Congress, and was convicted of perjury for that and now has turned against Trump. And he’s saying, This guy can’t be trusted. He’s a convicted perjurer. Which has the benefit of being true.

We don’t see him so much going after the evidence. And part of that, I think, is a question of whether Bragg has evidence up his sleeve that we don’t yet know about. And so that’s one of the things I’m most interested to see: Does he bring something new to bear on this, or is it kind of a rehash of already public information?

Rosin: Right. Now, looking at the case, there are two parts of it, as we talked about. One is proving that the hush-money payments happened, that there was this complicated scheme involving the executives at National Enquirer to kind of shift money around—and Michael Cohen to shift money around, pay Stormy Daniels, and sort of hide that money and make it look like a legitimate payment. There’s so much public-record evidence that that occurred. Right?

Graham: Yeah. Like, the outline, you know—we’re gonna get details, but the outlines of that have been clear since fall 2016, when The Wall Street Journal first reported it.

Rosin: So is the difficult part of the case the second part of the case?

Graham: Yes. It’s tying this to politics and showing these weren’t a business expense, because it’s not against the law to pay someone hush money. It might be unsavory, but it’s not criminal. The question is whether there’s a falsification of business records and if the purpose was for political gain.

Rosin: So what’s in the public record is the existence of hush money. What remains to be proven is falsification of records and tying that falsification of records to election interference.

Graham: Right. And some of that falsification—you know, we have some of that. When Cohen appeared before Congress and perjured himself, some of that information came out. We saw some things that hint at what the case might look like. There have been, I don’t even want to say, like, intimations, but there’s speculation that Bragg has more evidence along those lines to prove that, you know, there was chicanery inside the business and this was a concerted effort. And that is something that we just, you know, we don’t know yet, and I think that will be really interesting to see.

Rosin: For you and others who are watching this case, what counts as a smoking gun? Like, what would be an incredible piece of evidence that the prosecutor could pull out?

Graham: You know, the gold standard would be a recording.

Rosin: And a recording saying what?

Graham: A recording of Trump saying, you know: Hey, Michael. Make sure we pay off Stormy Daniels. And then we’re going to put it in the books this way, so make sure that we do it that way so that nobody knows it’s to keep it out of the election.

Rosin: Right, right. All the way to the word “election.” That’s like the real smoking gun.

Graham: Yeah. You know, failing that, I think they’re going to have to rely a little bit more on witnesses like Cohen to say, This was the purpose, and potentially other executives inside the Trump organization or inside National Enquirer or—you know, or possibly Daniels. I don’t know.

Rosin: So this is a hard case to prove, both elements of it.

Graham: It’s a complicated case. I don’t know how hard it is, but it’s definitely complicated. This is, I think, where the Al Capone metaphor breaks down a little bit because if you’re evading taxes, you’re evading taxes. And it’s a little bit easier to pay that, but this is a multistep process.

And it’s a little bit more complicated. So yeah, it’s elaborate.

Rosin: Mm-hmm. Okay. How does this fit, then, into the broader constellation of other Trump cases? Can we do just a very brief rundown of the cases so we know where to place this one and how to think of them all together?

Graham: I mostly tend to think of them in terms of gravity.

Rosin: Okay, so let’s do them in terms of gravity.

Graham: Okay, so I think this is good. I think this is, although for all the reasons we’ve said, totally a relevant case and one that’s important, also the least grave.

Next up, I would say, is the classified-documents case. People became aware of this in August 2022, when the FBI went to Mar-a-Lago to collect these documents. But, as we now know, it was the culmination of a long process where the National Archives recognized they were missing things—like a letter from Kim Jong Un to Trump—and asked Trump to return them. And Trump, allegedly, over a period of months, refused and tried to hide them, claimed he didn’t have them, wouldn’t cooperate with a subpoena to return them.

And that’s, in fact, what he’s charged with here: not so much absconding with these documents but trying to hide from the government that he had them and trying to obstruct them, including documents that were, apparently, really sensitive national-security documents dealing with things like nuclear defense and foreign militaries and who knows what else.

Rosin: So that’s serious for a different reason, not for the reason of election interference.

Graham: Correct.

Rosin: Right. Okay. Next one.

Graham: So we have these two cases that both deal, in one way or another, with Trump’s attempts to steal the 2020 election: the federal case on election interference and the Fulton County election-interference case, in Georgia.

Rosin: And is there another one? Have we covered them? That’s it.

Graham: That is all, for now. (Laughs.)

Rosin: I guess the one thing that allows this one to rise in importance, even if the facts being discussed aren’t as important, is that it’s happening before November. Like, that fact alone makes it important.

Graham: Yeah, exactly. I mean, people have a right to know if the person they’re considering voting for president committed a felony or, for that matter, a serious misdemeanor before they go to the voting booth, if it’s going to happen soon after. And this might be the only chance for them to get that.

Rosin: Right. Although, David, do you think, maybe, we’re putting too much on this case? I feel like we’re maybe overlaying everything we know about January 6 and the 2020 election onto this criminal trial, which is actually about 2016.

Graham: I think that’s exactly right. Because the other cases seem bogged down and because we have seen Trump’s behavior and we saw January 6 and we saw what came before January 6, it’s impossible not to kind of see it in that light. And I think Trump is involved, kind of on the flip side of that, in the same way, because he is making all of these cases to be part of the same supposed conspiracy against him—you know, They’re all out to get him, and each of these is a tendril of that.

And also his argument that he can’t be held legally accountable—in all of these cases, he’s arguing that he shouldn’t be held legally accountable for one reason or another. And so, insofar as he is making it a question about rule of law, I think it’s hard not to also think about it as a sort of basic rule-of-law question from the other side.

Rosin: Yeah, I guess what’s hanging out there—both in the way that he’s delayed these cases and conducted himself in other ways—is: Is he above the law? So that’s the cultural question being tested. It’s not exactly the question that’s being asked by the prosecutor.

Graham: Yeah.

Rosin: Is it a weird, rare advantage that he’s running for president? Because he can just delay cases until he’s in office. I mean, that’s another incredibly unusual thing that we haven’t talked about.

Graham: Yes. So he can delay all of these cases, and then it plays in different ways if he gets reelected. If he gets reelected, he can, basically, instruct the Justice Department to end the two federal cases against him, and that would be that. And, you know, it’s not quite as simple as he picks up a phone, but it’s pretty close to that.

And you hear people threatening, Oh, it would be the Saturday Night Massacre. You would have all these people resigning. And I think what we’ve seen of the Trump team is they would say, And? So what?

It’s a little bit murkier in this case and in the Fulton County case. But you can totally be sure that if he wins, he will then say, I can’t be sitting in court. I can’t be defending these cases. I am the president of the United States, and I am busy doing this, and it’s improper to interfere with this. You’ve got to let me free on these things too, or you have to wait ’til after I’m president, or you name it.

Rosin: Right. So that would be yet another way in which things that were unimaginable X years ago were now perfectly routine.

Graham: Right. I mean, could you imagine, also, if Trump is president but has to be going to a Fulton County courthouse three or four days a week to sit in his trial while also trying to administer the country? I mean, I just can’t imagine how it would work.

Rosin: Yeah. I can’t, but I also couldn’t have imagined that somebody would be conducting a presidential campaign from the defendant’s chair in a courtroom. So lots of things we couldn’t previously imagine.

Well, David, thank you so much for walking us through this trial.

Graham: Oh, my pleasure.

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Rosin: This episode was produced by Kevin Townsend, edited by Claudine Ebeid, engineered by Rob Smierciak, and fact-checked by Sam Fentress. Claudine is the executive producer of Atlantic audio. Andrea Valdez is our managing editor.

I’m Hanna Rosin. Thanks for listening.