Serious Trouble
Serious Trouble
The Indictment
The Indictment
After all these years, Donald Trump has been charged. But it's going to be tough to make the charges stick.

Dear listeners,

Well, this one’s a doozy. There’s a reason this week’s episode for paid subscribers is more than an hour long.

After years of hearing that “the walls are closing in on Donald Trump,” after two impeachments, and after Ken and Sara and I produced hundreds of podcast episodes regarding his legal travails, Donald Trump has finally been charged with a felony — 34 of them, actually. It’s quite complicated and interesting, and we have a lot of analysis of how we got here and what’s likely to happen next.

And yet.

The charges that Manhattan DA Alvin Bragg have brought… well, they’re a real stretch. As Ken and I discuss at length in this episode, it won’t be hard to show that the Trump Organization made various false business records related to the hush payment to Stormy Daniels, or that Trump has personal knowledge of their falsity. What will be very difficult to show is that those false entries constitute felonies. In order to be felonies, the records have to have been made in furtherance of some other criminal offense or offenses — offenses that Bragg has not charged and that federal prosecutors have not chosen to charge either.

The campaign finance angle on which Bragg appears prepared to hang his hat is not a solid one. The idea that the payment to Stormy Daniels was not just a campaign expense, but so obviously a campaign expense that Trump must have known he was breaking the law when he didn’t report it as a campaign expense — well, it’s just not plausible. Philanderers pay off their paramours for all sorts of reasons. The last time prosecutors tried a politician on this theory — John Edwards — they weren’t able to secure a conviction. It is simply not a well established area of campaign finance law.

Still, even though this looks like a weak prosecution, it’s going to be a complicated and interesting one. On this week’s show, Ken and I take a long walk through the elements of the offenses that Bragg will need to prove — the easier ones and the very difficult ones. We talk about Bragg’s press conference, what information we learned from the indictment and related documents, and what information was conspicuously missing. We talk about Trump’s legal team — pretty well suited to this kind of trial, frankly — and we talk about one matter that hasn’t gotten a lot of attention in the press: Even if Trump is convicted on all charges, it’s pretty likely he won’t be sentenced to any jail time, given that he would be an elderly first offender convicted only of non-violent Class E felonies.

Our conversation runs over an hour and is only for paying subscribers. We have a brief preview episode this week for free subscribers. But since we are an entirely listener-supported podcast (we take no advertising) and because this prosecution and the ones that are likely to follow are the main event in our coverage, we’ve decided to put almost all of this episode behind our paywall. We hope you’ll join us in the friendly confines of that paywall — come on in, it’s warm inside. And we promise not to indict you.

As always, thank you for listening. Reach out anytime with questions and comments:


Comments on this episode are for paid subscribers

Serious Trouble

Serious Trouble

An irreverent podcast about the law from Josh Barro and Ken White.

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Josh Barro
Ken White