"In the courtroom, we see Donald Trump for who he is," says a new Biden campaign ad. "He's been convicted of 34 felonies, found liable for sexual assault, and he committed financial fraud." One of these things is not like the others.
Those "34 felonies" sound like Trump's most serious offenses, and they are the only justification for calling him "a convicted criminal," as the ad also does. But those crimes were bookkeeping offenses that Manhattan District Attorney Alvin Bragg converted into felonies via a convoluted, legally iffy theory that combined several interacting statutes with questionable assumptions about Trump's knowledge and intent.
The victims in that case, Bragg said, were American voters, who supposedly had a right to hear porn star Stormy Daniels' account of sex with Trump before they cast their ballots in the 2016 presidential election. Yet hiding embarrassing information from voters is not a crime, arranging a nondisclosure agreement (NDA) with Daniels was not inherently illegal, and Trump was not charged with "election fraud," which is how the prosecution misleadingly described the essence of his crime.
Trump was instead charged with falsifying business records to cover up the NDA after the election, which allegedly was aimed at concealing "another crime": a violation of an obscure, rarely invoked New York law that makes conspiring to promote a candidate's election "by unlawful means" a misdemeanor. The latter misdemeanor transformed the misleading business records from misdemeanors into felonies, and the 34 counts were all based on the same underlying conduct. Bragg multiplied the felonies by treating each invoice, check, and ledger entry related to the NDA cover-up as a distinct crime.
The "financial fraud" to which the Biden ad refers likewise did not require proof of damages to any particular victim. While a New York judge concluded in a civil case that Trump had systematically exaggerated the value of his assets, there was no evidence that lenders or insurers had suffered financial losses because of defaults or claims. The state argued that banks lost potential income because they would have charged higher interest rates but for Trump's inaccurate financial reports. But the staggering "disgorgement" order in that case was aimed at stripping Trump of his "ill-gotten gains," not at compensating anyone who had been injured by his misrepresentations.*
In contrast, a New York jury's 2023 civil verdict against Trump, which found him liable for sexually assaulting and defaming the writer E. Jean Carroll, did involve a readily identifiable victim. Carroll alleged that Trump had raped her in a department store dressing room in 1996. The jury, which awarded $5 million to Carroll, concluded it was more likely than not that Trump had sexually assaulted her and then defamed her by calling her account a lie.
The behavior that Carroll described was by far the most serious offense alleged in these three cases, and it was consistent with the 2005 Access Hollywood tape in which Trump bragged about sexually assaulting women. Those comments, in turn, were consistent with the accounts of more than a dozen other women who publicly accused Trump of doing just the sort of thing he told Billy Bush he could do with impunity because he was "a star."
On its face, the fact that voters seem poised to elect a man who has been credibly described as a sexual predator is a lot more troubling than the fact that they seem unfazed by the Daniels NDA or Trump's long-standing tendency to exaggerate his wealth. Unlike the 2006 sexual encounter that Daniels described, the encounters that Carroll and Trump's other accusers described were decidedly not consensual. They were inherently felonious violations of other people's rights akin to the crimes that Trump promises to curtail by re-establishing "law and order"—a conspicuous feature of his populist platform.
Unlike the fraudulent records at the center of the two other cases, sexual assault causes obvious injury to specific people, as reflected in the damages awarded to Carroll. Yet somehow that crime gets second billing because of the "34 felonies" that Bragg cooked up.
Trump is "a convicted felon who continues to prove that he will do anything and harm anyone if it means more power and vengeance for Donald Trump," says Biden campaign spokesman Michael Tyler. "His entire campaign is an exercise in revenge and retribution."
Contrary to Tyler's implication, concealing the Daniels NDA did not "harm anyone" in a way that violated that person's rights. Yet Tyler conflates that cover-up with the danger that Trump, if elected, will abuse his official powers to target his political enemies—a much graver concern.
"This election is between a convicted criminal who is only out for himself and a president who is fighting for your family," Biden's ad says. How so? Biden has been "lowering health care costs," the narrator avers, and "making big corporations pay their fair share."
Judging from Biden's job approval ratings, voters have not been impressed by those efforts. According to last week's FiveThirtyEight tally, just 38 percent of voters approved of Biden's performance—the lowest number recorded during his presidency.
As in 2020, Biden's main selling point is that he is not Donald Trump. So it makes sense that Biden's campaign would try to remind voters exactly how awful Trump is. But playing up Trump's "34 felonies" will help do that only if voters were not paying enough attention to understand what those charges actually entailed.
*CORRECTION: This paragraph has been revised to acknowledge the argument that Trump's overvaluation of his assets resulted in lower interest rates on loans, meaning less income for banks.
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