The Wrong Trump Prosecution?

We may be about to see what happens when someone is shot on Fifth Avenue.


The office of Manhattan District Attorney Alvin Bragg has invited Donald Trump to testify in an investigation into a hush money scheme involving adult film star Stormy Daniels. Potential defendants in New York are required by law to be notified and invited to appear before a grand jury weighing charges.


If charged, Trump would become the first former President to be indicted. But would it necessarily slow his current presidential quest? I say not a chance – at least not based on this case alone. Any charges here would stem from $130,000 in payments made to Daniels during the 2016 campaign.


Apparently she had been ready to share her story of an affair with trump with the National Enquirer. But the tabloid’s publisher – David Pecker – was a Trump friend who instead helped broker a deal with Trump’s then-lawyer, Michael Cohen, in which she was paid for her silence.


I’ve long thought it the weakest of the known Trump investigations, which generally fall into four buckets:

  • the events of January 6.
  • the mishandling of government documents including at Mar-A-Lago.
  • the Fulton County D.A. investigation of election interference, including the so-called “perfect phone call” to Georgia Secretary of State Brad Raffensberger.
  • and this, the Stormy Daniels hush money.


Merrick Garland appointed Jack Smith as special counsel to look at both January 6 and Mar-a-Lago. Meanwhile, the Georgia special grand jury investigating election interference has concluded its work and recommended indictments for than a dozen people. It’s enough to keep any presidential candidate awake at night.


But when it comes to Trump, no matter what he steps in, he somehow emerges smelling like a rose.  While he was being investigated for his handling of classified documents, a process that included the execution of a search warrant at his home, classified information was found in the homes of Mike Pence and Joe Biden. Not an apples to apples comparison, but enough to muddy the court of public opinion and make it seem like he’s not alone.


In the Fulton County case, the grand jury foreperson gave media interviews casting a shadow on the work of that investigation, and at a minimum, giving Trump’s lawyers a basis to question the process.


I’ve long thought the Mar-A-Lago case was the most perilous to trump. The facts seem pretty straightforward and damning.


The Manhattan D.A.’s prosecution based on Stormy Daniels… not so much. The money was paid in 2016, seven years ago, and any prosecution would have to rely on the statute of limitations having been tolled while he was in office. That’s unprecedented – and untested.


It also would rely on what the New York Times calls a “novel” legal theory – the uniting of two cases – falsifying business records and a violation of state election law. Only by connecting the first to the second would it be a felony. If that strategy fails, the Manhattan D.A. would be left with a 7-year-old misdemeanor case based on sex, brought against a former president and current presidential candidate who leads his own party’s polls. I thought we learned in the 90’s that sex scandals alone don’t tank a president’s popularity?


Also – I find it curious that Alvin Bragg – having decided not to prosecute Trump in other matters – would choose this hill to die on. Remember: when Bragg announced he would not move forward in a case about Trump’s business practices – two lead prosecutors quit the department. One, Mark Pomerantz, leaked his resignation letter to the press, and it said that Bragg’s predecessor, Cy Vance,


“…concluded that the facts warranted prosecution, and he directed the team to present evidence to a grand jury and to seek an indictment of Mr. Trump and other defendants as soon as reasonably possible.”


Pomerantz has just published a book about this, “People vs. Donald Trump: an inside account.” When Bragg won a criminal tax fraud case against the Trump corporation and Trump payroll corporation – he did not pursue Trump personally. Instead, he seems to be honing in on the much smaller malfeasance.


It should also be noted that even after Trump left office and shed his immunity, the federal investigation of the Daniels case that had sent his former attorney, Michael Cohen, to prison –  in which Trump had been referred to as “Individual 1” – was not prosecuted by the U.S. Attorney in the Southern District of New York, who instead took a pass. Trump, of course, seeks to exploit all this by crying “witchhunt” on Truth Social.


“I did absolutely nothing wrong, I never had an affair with Stormy Daniels, nor would I have wanted to have an affair with Stormy Daniels. This is a political witch-hunt, trying to take down the leading candidate, by far, in the Republican party while at the same time also leading all Democrats in the polls…”


You have to wonder what Merrick Garland, Jack Smith, and Fani Willis were all thinking when news broke that it’s Alvin Bragg who might get the first bite at the apple. If each of the others is seriously contemplating indicting trump, you have to think they’d rather the first claim be the strongest. The Stormy Daniels case sets the wrong tone.  It’s the one that most plays into Trump’s claim of politically motivated prosecution – whether that’s true or not.


It could define those that follow. All of which now come in the context of a presidential race well underway. Ron DeSantis arrived in Iowa Friday – Trump is headed there Monday.


It’s time for all prosecutors to play their hand, or fold.


Michael Smerconish

Using the perfect blend of analysis and humor, Michael Smerconish delivers engaging, thought-provoking, and balanced dialogue on today’s political arena and the long-term implications of the polarization in politics. In addition to his acclaimed work as nationally syndicated Sirius XM Radio talk show host, newspaper columnist, and New York Times best-selling author, Michael Smerconish hosts CNN’s Smerconish, which airs live on Saturday at 9:00 am ET.

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