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Donald Trump’s Hush-Money Trial Is a Referendum on Truth

6 minute read
McQuade is a professor at the University of Michigan Law School, and a former U.S. Attorney. Her new book is Attack from Within: How Disinformation is Sabotaging America

The closing arguments for Donald Trump’s hush-money trial have ended and a jury now decides Trump’s fate in a Manhattan courtroom. But in many ways, it is truth itself that is on trial.

For the past several weeks, jurors have heard arguments regarding Trump’s alleged attempt to disinform Americans and sway the 2016 presidential election by falsifying business records and concealing hush-money payments to adult film actress Stormy Daniels. Depending on your view of Trump, the trial is either a much-awaited moment of accountability or a politically motivated case of prosecutorial overreach. But the case represents something more than the guilt or innocence of the former president—it is a referendum on whether facts and law still matter. Depending on which view one has of the case, the verdict likely will be seen as a commitment to the rule of law or a miscarriage of justice.

First comes the finding of facts. In our post-truth era, a jury’s quest for the facts may seem like a quaint notion. Yet every day in courtrooms across America, citizens selected at random gather to discern facts from evidence and render verdicts. Their verdicts to hold people accountable for committing crimes is what upholds the rule of law.

Read More: 5 Things We Learned From the Trump Trial

In Trump’s case, the jury will soon deliberate on whether Trump falsified business records regarding the payment of $130,000 to Daniels, and did so with intent to conceal violations of campaign and tax laws. According to the testimony of former Trump lawyer Michael Cohen, the October 2016 release of a recording of Trump making disparaging comments about groping women on an open mic for the Access Hollywood television show made it imperative to prevent another disclosure about sexual impropriety before the election. Unless Trump blocked Americans from learning about his alleged act of adultery, Cohen testified, Trump believed his campaign would suffer a “total disaster.”  In addition, David Pecker, former publisher of the National Enquirer, testified at trial that in August 2016, shortly after Trump became the GOP nominee for president, he paid $150,000 to silence former Playboy model Karen McDougal regarding a extra-marital relationship with Trump.

Some critics of the case argue that there is nothing illegal about paying hush money, and that charges would not have been filed at all if the defendant’s name were anything other than Donald Trump. Testimony during the trial has disclosed that other famous men entered agreements with AMI, the parent company of the National Enquirer, to kill stories alleging extra-marital affairs.

But that criticism misses the point. It is not the payment of hush money alone that is the crime. It is the cover-up by someone who is a candidate for president. Running for public office brings with it the responsibility of filing accurate campaign finance reports. The indictment charges that when Trump allegedly caused 34 checks, invoices, and ledger entries to be falsely characterized as legal expenses, he intended to conceal violations of state and federal campaign finance laws as well as tax laws. New York law makes it a crime to conspire to promote or prevent the election of a candidate by illegal means. Federal law prohibits corporate contributions, like the one made by AMI, and limits the amount of individual contributions to $2,700, far below the $130,000 allegedly made by Cohen. When Trump reimbursed Cohen, he allegedly falsely characterized the payments as income, resulting in the tax charge.

In addition to violating the law, the alleged scheme, if true, also betrays the trust of the American people. Voters have a right to know the facts about a candidate when casting their ballots. If candidates can covertly manipulate public perception to serve their own interests, they undermine the public’s ability to make decisions based on facts.

The jurors will decide whether the prosecution has met its burden of proof beyond a reasonable doubt and return a verdict. The prosecution’s case is far from perfect. Daniels and Cohen both admitted to making prior inconsistent statements. Cohen, who went to prison for perjury, even admitted to stealing money from the former president. Even if convicted, as a first-time offender, Trump is unlikely to face a prison term of any significance or be removed from the ballot as the presumptive GOP nominee for president. But the verdict will likely elicit strong opinions, even from people who did not listen to all of the evidence or review all of the exhibits, as the jury did.

Read More: What Happens if Trump Is Convicted? Your Questions, Answered

This is where the rule of law will be tested. As a former prosecutor, I was trained to argue cases in court zealously, but to accept a jury’s verdict with respect, even when it was not the decision I had sought. I learned to acknowledge that reasonable minds can disagree, and that it is more important to uphold public confidence in our legal system than to obtain a conviction in any particular case. To support our legal system means that we focus on a fair process, and tolerate decisions with which we disagree. Otherwise, our criminal justice system would fall apart.

But throughout this trial, Trump and his supporters have groomed the public to distrust the fairness of the trial. Trump has called the case a “sham” and “a Biden show trial,” even though the case was brought by a state court prosecutor outside the president’s federal chain of command. Trump has called Justice Juan Merchan “corrupt” and “highly conflicted.” Trump even falsely claimed that the gag order entered to prevent either party from making comments outside of court about witnesses, court staff and jurors prevents him from testifying, a “misunderstanding” Justice Merchan corrected on the record, but a narrative that Trump can use to explain away a decision not to testify.

On May 14, a group of Republican members of Congress attended the trial, dressed in identical navy blue suits with white shirts and red ties. Outside the courthouse, they addressed the media, and House Speaker Mike Johnson disparaged all of the pending criminal cases against Trump. “These are politically motivated trials, and they are a disgrace,” he said. “It is election interference.” Their unity and uniforms signaled an allegiance to one man over the rule of law.

Their stunt was the latest chapter in Trump’s playbook to disparage institutions that might stand in his way. By undermining public confidence in potential critics, Trump can downplay their inevitable criticism as illegitimate. Blunting potential critics is the reason he refers to the media as “the enemy of the people” and career civil servants as “the deep state.” And now, according to Trump, any case filed to hold him accountable for alleged criminal conduct is simply “election interference.” Not only do these claims provide pretextual defenses for Trump, they also tend to reduce public confidence in the institutions of democracy.

The jury’s decision in this case will end this trial. But public opinion will render the verdict on truth and the future of our faith in the justice system.

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