Claire Bond Potter, Alternet

Editor’s Note: The following first appeared in Political Junkie, Claire’s newsletter. –JS

Thursday, Michael Cohen, former president Donald Trump’s former attorney and fixer, completed his third day on the stand in People v. Donald J. Trump. The prosecution is expected to rest its case. So far, we have been reminded of all kinds of delicious facts about Cohen, a man from central casting if there ever was one. For example, that after Trump abandoned him, he said things like: “You better believe I want this man to go down and rot inside for what he did to me and my family.”

You can never tell how something like that might land with a New York jury. Todd Blanche, Trump’s lead defense attorney, hopes that it will plant the idea that Cohen would say or do anything to hurt Trump.

But it may backfire and add to Cohen’s authenticity, making him more believable to the jury. Why? Because most New Yorkers would feel the same way. There are undoubtedly people sitting in that jury box thinking, “Yeah. I can see that. I’m surprised he didn’t go after Trump with a crowbar. No offense meant.”

If you are a New Yorker, you know this is true. If you are not a New Yorker, and you need supporting evidence, take a look at Jacob Bernstein’s piece in the Times about how and why Rosie O’Donnell became Michael Cohen’s friend after Cohen participated in Trump’s vicious smear campaign against her.

The quick answer is that after he went to jail, O’Donnell felt sorry for him. “Mr. Cohen, with his heavy Nassau County accent, reminded her of the boys she knew growing up in Commack, on Long Island,” Bernstein writes. “'He was every guy I went to high school with,' she said.”

Friday was a day off in Criminal Court (although sadly, not for the other criminals), during which Trump attended the graduation of Barron Trump (otherwise known by his father as “Melania’s son”) from Oxbridge Academy in West Palm Beach, Florida. Trump then skipped the rest of the festivities and flew to Minnesota for a campaign fundraiser, a normal Dad way of saying “I love you” when your youngest kid is at a turning point in his life.

Since the defense will not begin its case until Monday, this is a good time to take a breath and remind everyone what this trial is about, since it will be the defense’s job next week to make that very confusing.

The sensational testimony, much of which we have heard before, also makes the trial confusing, even though the prosecution is knitting it together in a story that is not about sex, tabloids or payoffs. Prosecutors are telling that story because it establishes meaning, motivation and a chain of verifiable facts for the real crime: that Donald Trump used his company as a slush fund and an arm of his 2016 campaign; and that under his direction, fake bookkeeping enabled this felony.

The charging document lists 34 counts of falsified business records, all of which pertain to a payment of $130,000 made to adult film star Stephanie Clifford (aka Stormy Daniels) to buy her silence about a one-night stand in 2006. Each payment occurred in 2017, and they are identical, but for two things.

They have different check, voucher or invoice numbers; and they were authorized or paid on different dates: on or about February 14, 2017 (4), March 16 (1), 2017, March 17 (1); April 13 (1), June 19 (2), May 22 (2), (May 23 (1), June 16 (1), June 19 (2), July 11 (3), August 1 (3), September 11 (2), September 12 (1), October 18 (3), November 20 (2), November 21 (1), December 1 (2), and December 5 (1).

Every check has Donald Trump’s signature on it.

But let’s talk about what this case is really about: whether these acts pertained to fees for legitimate legal and personal services provided by Michael Cohen; or, as the prosecution alleges, whether Cohen (as he claims) fronted a payment of $130,000 to Clifford, at Trump’s direction, and was repaid over time via invoices for legal fees, invoices that were padded to conceal the reimbursement.

These payments exceeded the original sum by about $50,000 to account for Cohen’s total expenses (wiring and transfer fees, interest paid on the home loan and taxes on the “income”), a sum that represented less than half of what Trump paid Cohen that year.

Although this is commonly referred to as a “hush money” trial, none of these charges are about hush money: it’s where the hush money came from, how it got to where it was intended to go, and why it needed to be paid.

So it would be more accurate to say this is a slush money case, because Trump is alleged to have used his corporate, rather than his personal, accounts as a slush fund for making problems go away. Had he used his own funds, and concealed the payments, it is likely these charges would never have been filed.

But he’s a cheapskate, and he did, and they were.

So here is the thing to hold in your head as the defense goes to work next week.

Trump is being prosecuted because of crimes he has not yet been charged with. The crimes are: committing a fraud on the American public by conspiring to hide a sexual encounter that might have influenced voters; by failing to disclose this payment in his 2017 annual financial disclosure; and by making an unreported contribution to his own political campaign. These are felonies, and under New York State law, misdemeanors in pursuit of a larger crime or crimes are felonies. This, Alvin Bragg’s theory of the case, transforms each of the 34 misdemeanors into felonies.

This is obviously complicated. So let’s look at how Trump, Trump supporters, and the broader extreme right are trying to use this complexity to insist on the Former Guy’s innocence. I have framed what follows around four common, but false, assertions that deliberately misread what has happened in this trial so far.

The 34 actions cited in the indictment were minor mistakes that are common in corporate life, and obviously, this trial was concocted to interfere with Trump’s presidential campaign.

Here’s an example of this falsehood. As recently as mid-April, in an appearance on Sean Hannity’s evening show, Lara Trump (who is Donald Trump’s daughter-in-law and co-chair of the Republican National Committee) characterized the 34 actions under scrutiny as "bookkeeping errors." According to Newsweek, she then said that:

Manhattan District Attorney Alvin Bragg "refused to prosecute this case until ... Donald Trump decided he was running for president."
"Everyone can see what this is about," she said. "They have, and are forcing, Donald Trump to sit in a courtroom — this is a former president of the United States, the current nominee for the Republican side of the aisle for president — for weeks on end. For what, Sean? They claim a bookkeeping error. Really?"

First, this case has been in the works since 2020 when Cy Vance was Manhattan DA. Second, while it is not uncommon to conceal payoffs for sexual misbehaviors and crimes by passing the money through someone else, the bookkeeping actually is crucial. Harvey Weinstein used his brother Bob for this purpose, and it was vile — but legal.

Yet even if it was a series of bookkeeping errors — perhaps Lara means that the invoices were not properly itemized? — it would still be, as the IRS says, “inadvisable,” to make a personal pay off with corporate money. Why? Because it is almost impossible to stay on the right side of the law if you do.

Notably, if the jury convicts, it will establish two facts that can be referred to the Southern District: that Trump took extra, unreported income from his company, used that money for his campaign, and took the payoff to Clifford as a corporate deduction.

Stephanie Clifford tried to extort Donald Trump and should be charged with blackmail.

This is false: Clifford never approached Trump for money. Nor did Karen MacDougal, the Playmate and preschool teacher who also allegedly shtupped Trump, and who was paid $150,000 via National Enquirer publisher David Pecker in August 2016. Instead, like McDougal, Clifford began to shop her story about a sexual encounter with Trump in early October, 2016, around the time Trump was under fire for the "Access Hollywood" tape.

But Pecker balked: Trump had not yet paid him back for the McDougal story, and this is why the payment to Clifford had to go through Cohen. Allegedly, Trump believed that he would lose the presidency if the story about Clifford came out, compounding the damage done by having publicly admitted that he sexually assaulted women.

It’s also important to emphasize that the damage from such revelations was entirely reputational. While adultery is illegal in 16 states, Nevada, where the alleged sexual encounter took place, is not one of them; and Pecker’s “catch and kill” operation — paying someone money for the rights to a story you will never publish — is also perfectly legal, and a longstanding tabloid technique

The Biden administration is using the courts to persecute its political enemies.

The New York case is not a federal case, and the Manhattan District Attorney is not a federal employee. If Trump were convicted, no president could pardon him. But as I said above, there could be federal referrals.

Trump just needs one juror to not convict. Just one.

That’s true. There is a meme on the right about how to force the judicial system to heel, and it is called “jury nullification” or “jury independence.” This means that a juror or jurors break the oath they take at the beginning of the trial, not just to be honest about their views and decide the case impartially, but to decide it according to the law. A juror who “nullifies” makes a statement that the law itself is unjust, and/or ignores the judge’s instructions about how the law applies to the evidence they have heard.

Jury nullification has been associated with both progressive and rightwing causes. But excitement about the practice has accelerated on the right under Trumpism, because MAGA-world is anti-institutionalist. This excitement seemed to have been vindicated in 2022 when Timothy Shea, charged (along with Steve Bannon) in the Build the Wall fraud, received a mistrial because of a juror who refused to convict.

The juror did not object to the law, however. He objected to people he liked being tried under it, and this is commonly how jury nullification plays out on the right. According to Ben Feuerherd at Politico, “during the deliberations in Shea’s case, in US district court in Manhattan,

the holdout juror spoke about a “government witch hunt” and accused the other members of the jury of being “liberals,” the New York Times reported at the time.
“Tim Shea is a good man. He doesn’t beat his wife,” the man reportedly said during deliberations. “You just can’t vote to lynch someone.”
The juror also accused the government of bringing the case in a blue state like New York to secure a conviction.

But jury nullification enthusiasts often forget that the practice, when successful, generally conceals the fact that the prosecution has made a very strong case for conviction. Shea, for example, simply got a new trial and, according to Feuerherd, “was later convicted for his role in the scheme and sentenced to more than five years in prison in July 2023. Two of his co-defendants in the case were also sentenced to prison for the fraud.” And Shea’s alleged co-conspirator, Steve Bannon, although convicted and then pardoned by Donald Trump, will be retried for Build the Wall in New York State.

And let’s remember: Trump has lost every case that has come to trial so far, and one involved a jury. I would put money on it (from my private bank account, of course) that he will lose this slush money case too.

As we approach the 2024 election, crime is all over the media. Sure, it’s the media’s job to report crime. But if you are a devoted listener of 1010-WINS radio (which covers New York, New Jersey and Long Island), you will notice that other than weather and traffic, crime and policing are key aspects of the broadcast. Out of the top six news headlines on the WINS site today, five were violent crimes and the sixth was the ongoing student protest at Columbia. And if there aren’t enough crimes in the New York metropolitan area (oh, for the days of “Headless Body in Topless Bar”), reporters detail unusual and often grisly crimes that have happened hundreds or thousands of miles away. In the past week, the station has reported a gun battle in Louisiana that left three police wounded and one suspect dead; a fugitive former Oregon police officer accused of murder and kidnapping taking his own life; a robbery and carjacking in suburban West Haven, Connecticut.

Given that crime is a staple element of tabloid news, coverage of local tragedies, rather than seeming to occur at a distance, brings the specter of mayhem into communities that experience little or no crime. As Gideon Taffe of Media Matters reported in January 2023, Fox produced “a misleading narrative” about the United States being in the grip of a crime wave in 2022, devoted 11 percent of its reporting to the topic in advance of the midterm election. But that crime wave was “largely created by its own relentless coverage,” Taffe writes. “By focusing on racist stereotypes, smearing progressive prosecutors and pushing conspiracy theories, Fox made crime one of the biggest perceived ailments in the country and pushed far-right policy prescriptions ahead of the election.”

The only sane policy responses, Fox hosts proclaimed, were those embraced by the Party of Trump. And these “draconian solutions” meant a return to policies forcibly ended in the courts as civil rights violations:

Fox personalities began arguing for a return to “Broken Windows” policing, which involves aggressive enforcement and harsher sentences for lower level crimes. In reality, there is no evidence that this strategy works as a deterrent to reduce crime, and other heavy-handed policing tactics based on the broken windows theory have been found to significantly discriminate against Black Americans and other minority groups.

But as Taffe also pointed out, crime in the United States has dramatically decreased — 73 percent, to be precise — over the last thirty years. 2023 saw the biggest national drop in murder rates ever recorded (6 percent) and murders in cities dropped 12 percent. Yes, there are periodic crime spikes. (There was one during the pandemic). But overall, the trend is towards less crime.

The Atlantic’s crime reporter, Jeff Asher, pointed out that less crime doesn’t mean no crime. Yet “declining murder does not mean there were not thousands upon thousands of these tragedies this year,” he wrote on his Substack:

Nor does it mean that there was an acceptable level of gun violence, even in places seeing rapid declines. It simply means that the overall trend was extraordinarily positive and should be recognized as such.
Detroit is on pace to have the fewest murders since 1966 and Baltimore and St Louis are on pace for the fewest murders in each city in nearly a decade. Other cities that saw huge increases in murder between 2020 and 2022, like Milwaukee, New Orleans and Houston, are seeing sizable declines in 2023. There are still cities like Memphis and Washington, DC, that are seeing increasing murders in 2023, but those cities are especially notable because they are the outliers this year, not the norm.

Yet Americans don’t seem to believe that their world is safer than ever.

In February 2024, the Pew Research Center took the American electorate’s temperature. This nonpartisan, nonprofit research group identified 20 issues that will be priorities when voters decide between President Joe Biden and Unindicted Co-conspirator Number One in November. (Israel-Palestine didn’t even make the list, although perhaps it might now, amidst the campus demonstrations that are in the news around the country.) A whopping 73 percent saw the economy as the top priority for any president, outstripping the next item (defending against terrorism) by a good 10 points.

“Reducing crime” was in the seven spot, at 58 percent, which may seem like OK news on the surface. But in fact, concern about personal safety, up 11 points in a little more than three years, is trending in the opposite direction of actual crimes. While the big shift has been among Republicans and “Republican leaners” — from 38 percent to 68 percent since Joe Biden was inaugurated in 2021 — 47 percent of Democrats also think crime should be a priority.

Here’s the puzzle: analysis of crime statistics — also by Pew — argue that there are fewer crimes committed in the United States today than there have been in any year since the early 1990s. Then you may recall, politicians “solved” the crime problem, not through full employment, education or welfare, but with harsh sentences, incarcerating a whole generation of mostly Black men for decades. Things peaked at about 2 million people incarcerated and pending trial in 2010 and has since fallen by about 400,000 souls.

So the fact that public opinion is so out of synch with crime statistics puts Democrats in a tricky position for November: they must defend policies that are working, but that large numbers of Americans, including Democrats, believe are failing. But trying to counter the narrative on the right is difficult, because these policies are counterintuitive to what Americans have believed for generations. For example, if the prison population is dropping, and the United States is becoming safer, that might mean that crime rates and incarceration rates are independent variables in determining overall rates of crime. Or it might mean that incarceration causes crime. Some policymakers did believe that prison transformed petty criminals into hardened, violent felons — hence the creation of a separate prison system for juvenile offenders beginning at the turn of the 20th century in Illinois and Colorado.

Here’s what I would do if I were the Democrats.

Instead of allowing Republicans to take over the narrative, I would look for the programs that work and that have contributed to reducing crime. I would create a series of advertisements featuring police officers talking about why community policing methods work; mothers talking about how “second chance” diversion programs turned their kids around; programs that support students in graduating from high school and going on to college; men and women who finished technical training, or high school and college degrees, while incarcerated started afresh; and formerly incarcerated men working as violence interrupters.

These are just a few of programs that produce thousands of success stories—and reductions in crime. That story is happening now, and American voters need to know it.

I didn’t expect to learn much from week one of People of the State of New York v. Donald J. Trump, otherwise known as the Stormy Daniels Hush Money Case.

Why? Because as anyone who has ever reported on it knows, the jury phase is normally dull for everyone involved. The last time I was called (10 years ago in Brooklyn), the judge wouldn’t let us read, which — as any of my former therapists could tell you — was agonizing for me. As the attorney and judge questioned other people from the jury pool, the court officer marched around yelling at anyone peeking surreptitiously at a magazine or book under their coat.

If my compulsion is reading, Donald Trump’s is talking. He is, as my father used to put it, a “gasbag,” a person who is almost physically unable to enter a public space without dominating it verbally. But Trump is extreme in this regard: grammatically mangled, cognitively garbled, dishonest, unpunctuated and verbally inaccurate. Hais declarations are a firehose of gasbaggery. And one of the benefits of filling the air with your own opinions is that you never have to listen to, or think about, anyone else’s views.

So one of the last week’s pleasures was that Donald Trump was not allowed to speak in the courtroom unless spoken to. This meant that he was also forced to listen to whatever anyone said about him without responding to them, an exercise that will continue this week. He had to do this for five days in a row, except when he was asleep, a phenomenon that some Democrats believe will neutralize Trump’s attacks on President Biden as “Sleepy Joe” and a “low energy” person.

One guess as to why Trump nods off is that when he can’t talk, play golf or watch TV he is bored; another is that he doesn’t sleep well (look at the bags under his eyes!) But there are other theories. Bess Levin at Vanity Fair believes that, since there is no food or drink allowed in the courtroom, the Former Guy — lacking the dozen or so Diet Cokes that he drinks daily — is in caffeine withdrawal. The Lincoln Project reports that Trump claimed that he wasn’t sleeping — he was praying.

Then there is some super-undignified gossip that, like former wingman Rudy Giuliani, the Big Guy is a gasbag in another sense as well. It’s always hard to know what to make of such things, because it’s such a juvenile thing to talk about, or even whether it is true. Yet these claims have been made in a number of places. Ben Meiselas, co-founder of MeidasTouch and owner of Los Angeles Magazine, affirmed the audible and olfactory evidence of human gas emanating from the defense table in his own publication. Others said Trump was sleeping and farting loudly at the same time.

But let’s return to the man’s verbal gasbaggery. When awake and not in court, Trump still can’t gas at will, because he is subject to yet another gag order from yet another court: the list of people he cannot talk about is growing. In late March, Judge Merchan instructed Trump not to make statements about jurors and witnesses in the case, since we all know that when he does that, it is an invitation to his followers to spend their days barraging these people with death threats. One week later, he expanded that gag order to families, when the Former Guy publicly attacked Merchan’s daughter, who has worked as a Democratic political consultant but is not involved with this case, on (Failing) Truth Social.

This is important in more than a public safety sense. Trump’s style as a gasbag is to entertain his supporters, not just with familiar conspiracies and projections of doom, but to populate these stories with new characters, preferably Black, Latino, female and immigrants who have made good. In the absence of being able to attack real people, Trump will be forced to rely on a stale, self-pitying conspiracy narrative that has no antagonists in it to keep his supporters’ attention.

It may even be the case that this trial will defy those doomsayers and be fairly normal and straightforward. After all the hand-wringing about how hard it would be to seat a jury, Judge Juan Merchan has managed to frog-march all the attorneys — Manhattan District Attorney Alvin Bragg and Donald Trump’s defense team, Todd Blanche and Susan Necheles — through jury selection in five days. That’s about how long it usually takes: in fact, in the murder case I was called for, I was dismissed late on day 5, and I know jury selection went into at least a sixth day. With a full jury and six alternates seated, we should have opening statements sometime today.

But if Trump naps today, nightmares in other venues await. NBC reports that on Friday, Attorney General Letitia James filed a motion to void Trump’s $175 million bond in the civil fraud case she won in February. You may recall that Trump was initially assessed $454 million by the court (in addition to the $85 million or so that he owes E. Jean Carroll), and had to put that money in escrow pending appeal. On April 1, the appeals court permitted him to post bond for less than half of that sum: his lawyers claimed that the larger bond was simply not possible to obtain.

As it turns out, however, Former President Wile E. Coyote cannot just make a deal with Acme Insurance, Inc.: a bond company must be licensed by the State of New York, and it must prove that it has the assets to pay out should Trump lose his appeal. According to James’s filing, Knight Specialty Insurance Company, Trump’s guarantor of last resort, doesn’t meet either of these criteria; nor is it in control of the Trump assets that supposedly secure the bond against default.

Should the appeals court share James’s concerns with KSIC’s obvious lack of solvency (they only have $136 million cash on hand), it could revoke the bond as soon as today. This would put the Trump civil litigation team (as opposed to the criminal litigation team working in Judge Merchan’s courtroom) back on the clock to come up with the cash before the state of New York starts seizing golf courses and gilded elevators.

A second, related, nightmare is something I have written about before: the Trump campaign is very short on cash, in part because of the candidate’s massive legal expenses. Trump’s people have notified down ballot Republican campaigns that if they use the Former Guy’s image or name in their own fundraising appeals, they now need to send him 5 percent of the take, which is a lot for some of these smaller campaigns. As Amanda Marcotte quipped at Salon, making the analogy to a mob-style kickback, the message is: “Nice shop you got there, shame if something would happen to it.”

But I was curious as to whether this was a normal arrangement, so I called a Republican operative I know who agreed to discuss it off the record. “I have a very hard time seeing how this could be enforced,” this person began. First, if you are a former president of the United States, “You can’t own your own likeness and image,” which means you can’t charge people for it either. Furthermore, it will be difficult for the Republican National Committee or the Trump campaign to track every mailing, flyer and campaign ad sent out by hundreds of down ballot candidates.

And if it looks like the Trump people can enforce it? Then, candidates “are just going to drop the Trump name and image,” my source said. In my view, this is perilous, since not having a robust connection to state and local campaigns is one of the things that may have stood between Hillary Clinton and the presidency in 2016. In a tight race with candidates that are not generating enthusiasm, when voters come to the polls to support local and state candidates they know and care about, they link those people to the national ticket, and cast their presidential vote on a party line.

My source also pointed out that Republicans in safe seats are mostly raising money to give away anyway: as I understand it, this is the only reason anyone pays attention to Marjorie Taylor Greene at all — she is a monster fundraiser. Those candidates will redirect a portion of the money they normally give to House and Senate colleagues to Trump, something else that could also affect tight Senate, and particularly House races.

This is where the macro picture does not look good. Republicans in tight Senate races “are already way behind on fundraising,” my source said. “If candidates in contested races are also giving 5 percent to Trump, it will definitely hurt them.” In particular, it will hurt them if these funds come from so-called “house files,” lists of names not rented, but generated and owned by the candidate, which represent pure profit for a campaign. “He wants the money from that too,” my source said.

And here’s the thing: will the money Trump is demanding go to his campaign, or will it go to funding the platoons of lawyers trying to keep Trump solvent and out of jail? Or is there really any difference, since Trump is already spending Super PAC money that should be used on the campaign and for down ballot candidates to pay his legal bill? As we know, the Former Guy has bled Save America leadership PAC for almost $60 million that represents media buys, organizers, canvassers and other campaign expenses. And the burn rate is already high. According to Jessica Piper at Politico, “Trump’s official campaign committee spent just over $3.7 million in March, with travel expenses, followed by payroll, occupying its biggest expenditure categories.”

But what is it being spent on? Rallies of committed Trump voters, not recruiting new voters. According to my source, the networks of campaign workers that ought to be emerging now to support a Trump presidency are not being organized and established. That costs money. “Trump’s not broke,” my source said, “but he has no campaign offices anywhere.” And the GOP in Michigan and Pennsylvania, two vital swing states, “is broke.” By contrast, “Biden already has a bunch of campaign offices up and running. This matters in close elections.”

In other words, what we may be seeing in the press coverage is a kind of demented Harold Hill candidacy, a fake Music Man running around the country selling a presidential campaign that doesn’t really exist. As we start to see President Biden’s numbers tick up, just remember: much of what happens in a successful presidential campaign is invisible, even in a media atmosphere that seems to make everything hyper visible.