“Show me the man and I’ll show you the crime”

– Lavrentiy Beria, Joseph Stalin’s secret police chief

The facts of the case starting this week are simple. It’s the legal theories that are convoluted.

Donald Trump paid a porn star named Stormy Daniels to stay quiet about their affair. (Leave aside for a moment whether it’s possible to have an “affair” with a porn star, and leave aside whether Stormy blackmailed him into making the payment.)

Despite the opprobrious term “hush money,” this type of payoff is perfectly legal and happens all the time. In fact, it’s the most frequent outcome of a sexual harassment case, where it’s politely termed a “confidential settlement agreement.”

You might think the objection is that Trump used campaign money from donors to make the payment. But it’s undisputed that he didn’t. Trump instead used his own money through his lawyer to whom he paid monthly retainers. (Imagine the outcry if he had used campaign money.)

As businesses often do in these circumstances, Trump characterized the payments as an expense in his business records. The prosecution says that characterization was incorrect.  

Maybe, and maybe not. But even if so, such a mischaracterization is only a misdemeanor, at most, for which the penalty would be a simple and small fine.

The Democrats want more than that. They want Trump in jail.

Enter the new District Attorney for Manhattan, a place that went 85-15 against Trump in the 2020 election. The DA explicitly campaigned on a promise to put Trump in jail, without ever telling the voters what crime he had committed. He must have concluded, apparently correctly, that the voters didn’t care what crime Trump committed so long as he was punished with a jail term.

But even in deep blue Manhattan they don’t send people to serve jail time without charging and convicting them of crimes. So, the DA ginned up a crime.

It goes like this. The DA says Trump’s campaign benefited from his personal payment to Stormy. Because Trump made the payment personally for this benefit to his campaign, he should have reported it as a campaign contribution under the federal campaign finance laws.

Consider the irony. The DA says Trump violated federal campaign finance laws because he didn’t use campaign money from donors for this payment, but instead did use his personal money.

The lesson is, if you’re running for office and pay someone to keep quiet about your affair, be sure to use campaign money from donors to make the payment.

As to whether this payment by Trump benefitted the campaign, I suppose it did in a sense. Whatever expenditures a candidate makes with his own money to make himself more palatable as a candidate, benefits his campaign.

A campaign is benefited when a candidate uses his own money to get a nice haircut or make a publicity-generating charitable donation. (The DA has taken no position yet on nice haircuts or publicity-generating charitable donations, because Trump didn’t commit those “violations.”)

But such expenditures have never been considered reportable campaign contributions. Nancy Pelosi’s face lifts to make her more palatable (maybe) as a candidate were never reported as campaign contributions.

Ah, but Trump is a special case. Sui generis. Orange Man Bad. Trump Derangement Syndrome. He’s such a threat to democracy that there is no alternative but to jail him for . . . whatever.  

Ah but there’s another problem with the creative DA’s case, for which he has yet another solution. The problem is that the DA is a state prosecutor with no jurisdiction over federal campaign finance laws. Several of the Feds, who do have jurisdiction over the campaign finance laws, unanimously declined to bring charges.

The DA’s novel solution to that problem is as follows. Although he has no jurisdiction to bring a charge for violation of the federal campaign finance laws, he says that the trivial state law misreporting violation was a scheme to violate those federal laws.

That, he says, serves to elevate the state law violation from a misdemeanor to a felony that . . . [drum roll] . . . puts Trump in jail!

To succeed with these theories, the prosecutor must prove the federal campaign violation. That’s a violation he has not charged Trump with since he has no jurisdiction over it, and a violation that prosecutors who do have jurisdiction have declined to charge Trump with.

Unsurprisingly, the DA’s own predecessor expressly declined to pursue the current DA’s theories.  

Speaking of putting Trump in jail, the judge’s daughter is a Democrat activist who once published a photoshopped picture of Trump behind bars. Her father has slapped a gag order on Trump for the duration of the trial.

In summary: An arguable small-time misdemeanor is inflated into a jail-time felony on the prosecutor’s theory – rejected by the prosecutor’s predecessor – that the alleged misdemeanor was for the purpose of committing a federal offense over which the prosecutor has no jurisdiction and which the feds explicitly declined to prosecute. The trial will be to a jury in deep blue Manhattan presided over by a judge who has gagged-ordered Trump and whose daughter is a Democrat activist who has published a fake picture of Trump in jail.

Whether you love or hate Trump, the politicization of our legal system is a travesty.

Glenn Beaton practiced law in the federal courts, including the Supreme Court.