From the Left



Sex on Trial

Susan Estrich on

Paying "hush money" to keep an extramarital affair quiet is not a crime. And falsifying business records to cover it up is not a felony. What makes it one - or 34, the number of felony counts Trump has been charged with -- is an "intent to defraud" that includes an intent to "commit another crime or to aid or conceal" another crime. It's the other crimes, and the evidence to prove them, that poses a huge risk for the former president in the trial that is beginning this week in the New York Supreme Court.

In New York, it's a crime to conspire to illegally promote a candidate. The hush money paid to Stormy Daniels, and the lengths Trump went to to cover it up, was, the prosecutors are alleging, done to influence the results of the 2016 election. That won't be hard to prove. Still reeling from the disclosures about his taped statements about using his celebrity status to grab women by the private parts, Trump was provably concerned that disclosures about his alleged affair with a porn star would further damage him, especially among women voters.

A trial in which the prosecutors are going to be focused on proving that is a serious threat to Trump, as serious as the threat posed by Stormy Daniels in 2016, which led him to pay the money in the first instance. And that is what the trial will be about.

There is no doubt that Trump falsified the business records, covering up the payment to Daniels as a legal retainer to Michael Cohen. That's the easy part. The bulk of the evidence -- and the heart of the political peril -- will be directed to the reason he did it, the pattern of trying to cover up embarrassing disclosures, which will now be repeated in gruesome detail, about his sex life.

Critics of the New York case have pointed out that of the four criminal cases against Trump, this one is in some respects the least of them. In one sense, that's right. At worst, Trump is looking at Class E felonies, the lowest grade in New York, with a lesser risk of imprisonment given that he doesn't have a criminal record. But in terms of political peril, Alvin Bragg's charges pack a huge force.

It's all about Trump's sex life -- not only with Stormy Daniels but also with former Playmate Karen McDougal, whose story he also tried to kill with the help of the National Enquirer. The judge ruled on Monday that the jury would not be told that his affair with her allegedly took place while Melania was pregnant with Barron, but that hasn't and isn't stopping voters at home from learning that. It will be known. She will take the stand. The prospect of the former president sitting there and being forced to listen to his former mistresses testifying about their affairs with him is just one of the things he can look forward to in this trial.


How will that play with women voters? There is no way to look presidential in the face of such testimony. A roomful of reporters will be recounting Trump's every gesture and their every word. This is not dry, complicated testimony about business valuations -- the stuff of Trump's civil trial. This is sex -- and how Trump tried to hide it from voters, now to be on full display. A porn star and a playmate. A pregnant wife at home. Soap opera of the worst sort. It doesn't matter if it's only a Class E felony. It is political poison.

On Monday, the court ruled that the prosecution would not be allowed to bring up evidence of other women who came forward in the wake of the "Access Hollywood" tape to complain about being harassed by Trump, terming these rumors as "very, very prejudicial." But voters will read about them as well. And there will be plenty of very, very prejudicial material coming in.

Trump is losing ground with women as it is because of the abortion issue. His effort to defang the issue by saying he would leave it to the states ran smack into Arizona's decision to enforce a law passed before women had the vote. A trial focused on his efforts to keep women voters from hearing about his sexual indiscretions, covered in excruciating detail four days a week for the next six weeks, can only make things worse.


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