The Trump Hush-Money Prosecution and Militant Democracy

Jonathan Hafetz

To some, former President Donald Trump’s prosecution and conviction in New York vindicates the principle that no person is above the law; to others, it is a witch-hunt, the product of a “rigged” system. While the case’s critics often grossly distort what transpired in New York, they are not wrong that the prosecution was informed by politics in some sense. But that does not mean the prosecution was improper or shouldn’t have been brought. 

At trial, Judge Juan Merchan afforded Trump all the procedural protections due a criminal defendant, and then some. Any other defendant, for example, would likely have been jailed for contempt the second or third time they violated the gag order; Trump notched 10 contempt citations but received only fines. Critics who complain about certain procedures, such as the jury not being given a written copy of the instructions, are simply ignorant of local practice, as doing so is prohibited under New York law.   

As for the substance, District Attorney Alvin Bragg’s office adopted an aggressive interpretation of the law in attempting to step up Trump’s violation of New York’s falsification of business records statute (a misdemeanor) to a felony by demonstrating it was committed with the intent to commit or cover up another crime (the object offense). The prosecution offered three possible object offenses: violations of federal election, state election, and tax law, although it relied most heavily at trial on the New York election law statute, which prohibits promoting a person’s election by “unlawful means”.  Attempting to step up falsification of business records from a misdemeanor to a felony based on a state election law in a federal election raises novel legal questions, and Trump will have issues to litigate on appeal (though how strong the grounds for appeal are disputed). But prosecutors commonly interpret statutes aggressively, and even if the conviction is ultimately reversed, Bragg had a legitimate basis to interpret the law in this manner.

But the fact that Trump received a fair trial does not negate the fact that larger considerations likely factored into the decision to prosecute him. The choice to criminally charge a former president for the first time in U.S. history was not made in a hermetically sealed vacuum, cut off from the world outside.

Here’s where the “no person is above the law” theme starts to break down: it means that New York should—and would—have prosecuted Trump even if he had not attempted to overturn the 2020 election or, alternatively, if he had done so, but declined to run again. 

There is a strong argument that the prosecution for the January 6 Capitol attack should have been brought regardless of whether Trump decided to run again because of the direct threat the attack posed to the peaceful transfer of power and because of the prosecution’s potential expressive and deterrent effect. The same, however, cannot be said for the New York case. The first criminal prosecution of a former president for making hush-money payments to a porn star would have looked very different if Trump had instead retired to play golf at Mar-a-Lago or returned to reality TV rather than continuing to spread lies about the 2020 election while seeking the presidency again. It may be true, as Roger Parloff observes, that “comparable charges have been brought against people whose names are not Donald Trump,” including former vice presidential candidate John Edwards; but the calculus would certainly have been different if Trump had retired from politics. Bragg likely sought to prosecute Trump not merely for what he did in the past, but also to deny him a second opportunity to subvert democracy from the White House. 

All prosecutions are in some sense political, particularly in a system like the United States, where prosecutors have discretion over which cases to bring.  For example, whether a local prosecutor’s office will seek jail time for non-violent drug offenses is in some sense informed by political considerations. But the political dimensions are magnified in high profile cases, perhaps none more so than in the prosecution of a former president. That does not mean, however, that Bragg’s decision to charge Trump was wrong or improper given the continuing threat Trump poses to democracy. 

The concept of militant democracy offers another perspective the New York hush money case.  Militant democracy refers to the idea that a democratic regime may need to adopt seemingly “illiberal measures to prevent those aiming at subverting democracy with democratic means from destroying the democratic regime.” The term was first coined in 1937 by the constitutional lawyer Karl Loewenstein, a German émigré living in the United States who was deeply concerned by the rise of fascist and Nazi parties in Europe. Militant democracy can include prohibiting political parties and activities that aim to subvert democratic governance. In the United States, as Mark Graber notes, disqualification from holding office, whether through impeachment or under Section 3 of the Fourteenth Amendment, is a form of militant democracy, as it denies voters the opportunity to select the candidate of their choice.

But disqualification failed. Congress impeached Trump (for the second time) after January 6, but the Senate failed to convict him and thus bar him from holding office again. Voters and advocacy groups in multiple states sought to disqualify Trump from appearing on the ballot for inciting insurrection pursuant to Section 3 of the Fourteenth Amendment, but the Supreme Court halted these actions, citing the disruption that could result in a presidential election. 

The other Trump indictments may be viewed as better vehicles to prevent Trump from retaking the White House either because they directly target electoral subversion (the January 6 and Georgia electoral interference cases) or allege more substantial abuses of government power (the Florida classified documents cases).  The Supreme Court, however, has delayed the January 6 election interference prosecution by taking up the question of presidential immunity; as a result, the case may not be tried until after the November election (if it’s ever tried at all). Meanwhile, the Florida and Georgia cases remain snarled in pretrial delays.

The New York prosecution thus filled a gap by seeking to protect democracy by holding Trump to account for criminal activity.  The New York prosecution, moreover, is connected with Trump’s supreme crime—his effort to subvert the 2020 election—even if in a more attenuated way than the January 6 and Georgia cases. In buying Stormy Daniel’s silence and then covering it up during the 2016 presidential election, Trump sought influence that election’s outcome. Although it may seem difficult to believe today, after Trump has weathered so many scandals, that the Trump campaign was genuinely concerned that the Stormy Daniel’s story, which would have broken just after the release of the Access Hollywood tape, might have been enough to derail his candidacy. In that respect, the sordid, ripped from the tabloids tale of Trump’s hush-money payments in 2016 and Trump’s later attempted coup after the 2020 election can be seen as points on a continuum rather than wholly unrelated offenses. So, while prosecuting Trump for hush money payments could have been justified solely as a means of preventing him from returning to office, tying the case to a larger narrative of electoral subversion helps highlight the nature of the threat Trump poses. 

Unlike disqualification, Trump’s conviction in New York will not prevent him from running. Judge Merchan may sentence Trump to jail time. But it is unlikely Trump would be required to start serving any sentence before November 2024; even aside from Judge Merchan’s keen sensitivity to the case’s context—and the potential ramifications of jailing a presidential candidate in the heat of an election campaign—white collar defendants with no prior criminal record generally have a strong claim to stay the execution of their sentence pending appeal.

To be sure, prosecuting Trump for what may seem a relatively minor offense based on an aggressive legal theory may ultimately backfire by playing into Trump’s grand narrative of victimization, even as a jury now has also convicted Hunter Biden, the son of the current president, of felony gun charges.  At this point, there is only early polling, and given the array of intervening events between now and November 5, it will never be possible to know whether the New York case ultimately tipped the election one way or another. 

Trump's conviction could also potentially fuel retaliatory prosecutions against Democrats by Trump’s Republican allies (and by Trump, if reelected). But unlike any such “revenge” prosecutions—and unlike Trump’s calls to “lock up” Hillary Clinton during the 2016 presidential election—the New York case can be justified as an attempt to protect democracy rather than as a naked exercise in partisan warfare with no higher goal than seeking power for one’s side. And for the present moment, the New York prosecution has achieved something in a battle over democracy that has no easy answers: by convicting Trump and branding him as a felon, it has provided voters with another valuable data point in an election with enormous consequences for democracy’s future in the United States.