But the latter shortcut may not be entirely appropriate, judging by a letter Monday from the judge overseeing the case. Indeed, New York Supreme Court Justice Juan Merchan seems to indicate that we are actually facing a third election interference case.
“In essence, the allegations allege that Donald Trump falsified business records to conceal an agreement with others to illegally influence the 2016 presidential election,” Merchan summarizes in describing the jury selection process, which is scheduled to begin Monday .
Merchan isn’t exactly rewriting the accusations against Trump. But this characterization is a reminder that there is more at stake here than Trump’s alleged affair with adult film actress Stormy Daniels, hush money or even the alleged violation of the law by hiding hush money paid to Daniels. (These details are salacious but seemingly minor compared to Trump’s three other indictments.)
What we also have is an alleged conspiracy to illegally withhold damaging information to benefit the winning candidate in a very close election. And given the close outcome of these elections, it is hardly ridiculous to wonder what impact this alleged crime may have had on the course of the country.
But could this have changed the 2016 race?
It’s unknowable. But we can say several things.
The first is that Trump’s victory was achieved by less than a percentage point in the decisive states. He won Michigan by 0.2 percent, Pennsylvania by 0.7 percent and Wisconsin by 0.8 percent: change 78,000 votes in those states or move the entire electorate by one point to Hillary Clinton, and Trump will never be president.
The other is that Trump appears to have won because undecided voters late in the race came out strongly in favor of him. Exit polls showed those who made up their minds in the final days beat Trump by 11 points in Michigan, 17 points in Pennsylvania and 29 points in Wisconsin.
And there were enough such voters in every state to make a difference, as I wrote at the time:
In Pennsylvania, it was 15 percent (decided late). And in Michigan and Wisconsin – states where Trump made a late surge – 20% of voters said they had made their choice in the past seven days.
…
If we assume that the numbers are all correct – a big “if,” given the wiggle room in exit polls – that would mean that Trump gained over the past week about four full points in the Wisconsin, 2.5 points in Pennsylvania, two points in Pennsylvania. Florida and 1.5 points in Michigan.
In each of these states, these fluctuations, if accurate, would explain Trump’s victory.
The question from there is whether a potential late disclosure of an alleged affair with a porn star could have had a sufficient impact on enough voters – either the many hesitant late deciders or any other voters. Again, we will never know.
It is tempting to say that this would not be the case. After all, voters elected Trump despite learning, a month before Election Day, of the “Access Hollywood” tape in which Trump spoke about sexual abuse of women. Trump overcame many other controversies to get elected. And late decision-makers tend to crash against the party that holds the White House, as Clinton’s party did back then.
But just because Trump won doesn’t mean he was Teflon. Expertise often consists of treating every attack on a winner as a failure, because he won. But sometimes things hurt the winning candidate – but not enough to lose.
As seems to have been the case with “Access Hollywood.” A 2020 study from the University of Massachusetts and Brandeis University examined the 2016 Congressional Election Cooperative Study. It found that those who were exposed to the tape were two points less favorable to Trump.
Jill S. Greenlee of Brandeis concluded that the “popular vote loss of 2.1 points might have been smaller for Trump or might not have happened at all” without the tape.
To believe that Trump would have suffered more from Daniels’ allegations would imply several things. One would be for her to file it publicly if she didn’t get paid. Trump would then have had to lose voters who were not sufficiently discouraged by – or aware of – the “Access Hollywood” tape and its other controversies.
Certainly, there is something to be said for a critical mass of controversy that can serve as a breaking point for voters. Or perhaps some voters who accepted Trump’s defense that the “Access Hollywood” tape was mere “locker room talk” might have been more concerned about a more substantive allegation about Trump’s actual conduct . An affair with a porn star is the kind of thing that would at least seem like a problem to many of Trump’s then-new evangelical Christian supporters.
Of course, media coverage of Trump’s alleged affairs followed him for decades, so perhaps it was already baked into his brand. And given that the affair probably wouldn’t have been proven and still hasn’t been proven — Trump has always denied it, despite lying about the situation — perhaps voters would simply attribute it to the fact that she was unknowable. Maybe they would even see it as a last-minute dirty trick from an unsavory character – an adult film actress.
What is clear is that Trump and his lawyer at the time, Michael Cohen, saw the potential value in covering up the whole affair. And whether illegally or not, they deprived us of this counterfactual. You can’t restart an election, so in that sense, the plot could very well have borne fruit.
But while Trump faces legal liability for this, it’s probably worth recognizing that “silence on the money” and even the shorthand “falsifying business records” don’t really capture all that this alleged crime could have meant – for Trump or for the country.
washingtonpost
