The Lawfare Against Trump

In 2016, I was interviewed on Icelandic television before the American presidential election. I revealed that if I were an American I would vote for Hillary Clinton rather than Donald Trump, for three reasons. She had experience, Trump was not presidential in his behaviour, and most importantly, I strongly disagreed with his protectionism. The case for free trade is unassailable, perhaps with the exception of products of military significance. On election night I attended a party at the American Embassy in Reykjavik, but I left early and went to sleep, convinced that Clinton would be elected. I was astonished to wake up the next morning and learn that Trump had won. But I must admit he was not a bad president. He appointed excellent legal scholars to the Supreme Court, and his protectionism was more rhetoric than reality. He even once exclaimed that he would be for abolishing all tariffs, if other countries did the same. I also agreed with him that a sovereign country has to have some control over entry. Most immigrants, at least to the United States, come there to work, not to become a burden. It is not immigration which is the problem. It is illegal immigration creating unearned entitlements. Trump’s sheer unpredictability may also at least partly explain that the West’s traditional enemies trod rather carefully while he was in office. Would Putin have dared to invade Ukraine if Trump had in 2021 been commander-in-chief?

A Lapsed Misdemeanour

Therefore, in 2020 I would have voted for Trump rather than Biden who not only seemed to lack energy and focus but also surrounded himself with left-wing ideologues. As Italian journalist Indro Montanelli famously exclaimed in 1976 when it seemed likely that the communists would win elections and get into power, Hold your nose and vote Christian Democratic. While I was dismayed by Trump’s reaction to his defeat, I am now equally dismayed by the attempt of his opponents to try and move the election into the courtroom. The Democrats chant that Trump is a convicted felon. But the facts of the case are clear. He, or rather people on his behalf, paid a courtesan (Stephanie Gregory, calling herself ‘Stormy Daniels’) 130,000 dollars for her silence about a possible affair in 2006. It does not follow from the payment that there was an affair. Trump categorically denies it. The rich and famous often prefer to pay potential blackmailers, extortionists and attention seekers for their silence rather than to endure unpleasant media coverage of accusations which eventually might be refuted. The people acting on Trump’s behalf then wrongly registered the payment to the courtesan as a legal fee, with his connivance and probably at his initiative. This was the violation. Under the law in the state of New York, it was at most a misdemeanour for which the statute of limitations ran out in 2019.

Construing a Misdemeanour as a Felony

Registering a payment as a legal fee when it was in fact hush money, may have been a legal infraction, but if so, then it was certainly a minor one. The really dishonest person in this sordid saga was of course the courtesan who accepted money for not making allegations publicly against Trump, and subsequently did what she was paid not to do. (As Mencken said, an honest politician is one who stays bought.) What then happened was that a New York prosecutor chose to indict Trump under a law according to which the falsification of business records becomes a felony, with a five-year statute of limitations, only when done with the intent to conceal the commission of another crime. During the trial, the prosecutor suggested that this ‘another crime’ was an attempt to influence the 2016 election by unlawful means. Trump himself says that he had the payment made to spare his wife embarrassment, not to influence public opinion. Probably, he is telling the truth. He knew that his supporters would not be much affected by his alleged or real affairs with women. They had ignored worse. But there is a much greater problem with this application of the law. It is that the hush money wrongly registered as a legal fee was paid after the 2016 election. It cannot therefore have been made with the intent to influence the election. Evidently, Trump was wrongly convicted.

Democrats and Republicans Treated Differently

The prosecutor, District Attorney Alvin Bragg, is a staunch Democrat who openly campaigned to hold Trump ‘accountable’. The judge, Juan Merchan, is known to have made a donation to a political group fighting against Trump in the 2020 election. He should therefore have recused himself, as former judge (and now Stanford Law Professor) Michael W. McConnell has argued. The reason why Lady Justice is always shown with a blindfold is that she should not discriminate between black or white, rich or poor, man or woman, Republican or Democrat. She should weigh cases solely on their own merits. For example, Hillary Clinton was guilty of the same legal infraction as Trump. Her campaign wrongly registered as a consultancy fee a payment of more than one million dollars to an agent producing a dossier on Trump’s alleged Russian connections (later shown to be unfounded). As a result, the Clinton campaign was fined 8,000 dollars. Why was Clinton treated much more leniently than Trump? In 2008, the campaign of Democratic Senator John Edwards paid nearly one million dollars as hush money to his former mistress, wrongly registering it as gifts to her from donors. The Department of Justice did not pursue the case. Why this difference? Had the blindfold been temporarily removed?

The Clinton Impeachment Case

Going further back in time, President Clinton did not tell the truth under oath about his relationship with White House intern Monica Lewinsky, and he paid a former Arkansas state employee, Paula Jones, 850,000 dollars for dropping a case against him about sexual harassment. Why is Trump supposed to be a convicted felon for having paid Stormy Daniels 130,000 dollars for her silence, while Clinton walked away relatively unscathed (although his Arkansas law licence was suspended for five years whereas he chose himself to resign instead of being disbarred before the U.S. Supreme Court). In retrospect, though, the attempted impeachment of President Clinton was wrong. The Republicans, having failed to defeat him in an election, were trying to ‘get him’ for something which is not considered today a serious crime. He may have been guilty of inappropriate behaviour, but normally the law should not bother about what is done in private between consenting adults (even if the consent is bought). Now the Democrats are however behaving in the same way, trying to turn a minor infraction into a serious crime and moving an election into the courtroom.

A Dangerous Precedent

By their legal manoeuvring, stretching a law about proper registration of expenses into a law prohibiting influencing elections by unlawful means, the Democrats are setting a dangerous precedent. Using their logic, could a Republican prosecutor not indict the clique around President Biden for trying to hide from voters that he may be unfit, mentally as well as physically, to be President of the United States? Could this not be construed as illegal interference with an election? Similarly, is District Attorney Bragg not guilty of illegally trying to influence the 2024 presidential election by indicting Trump for a lapsed misdemeanor misconstrued as a felony and demanding, to boot, a gag order on him? As Professor McConnell comments in the Wall Street Journal on 20 June 2024: ‘Many Republicans who have never been Trump supporters—who are disgusted by his personal immorality, appalled by his inflammatory and often uninformed rhetoric, and unconvinced by his claims that the 2020 election was stolen—believe that Democratic prosecutors are waging lawfare against Mr. Trump.’