Of all of Donald Trump’s charged crimes, spelled out in 88 felony counts – from plotting to overthrow the government of the United States to stealing national security secrets, and obstruction of justice along the way – there is one case that most closely parallels the greatest political crime in American history: his trial in New York, scheduled to begin 15 April, for falsifying business records.
Yet against the enormity of the former president’s transgressions, that case’s gravitas has been diminished by some legal pundits as the “runt of the litter” and “probably the least serious of the crimes he’s been charged with”. This case, brought by the Manhattan district attorney, however, reveals Trump as having essentially the same purpose as Richard Nixon in Watergate, hiding the truth through fraud and bribery in order to manipulate the outcome of a presidential election.
From the beginning, Nixon tried to persuade the public that Watergate was much ado about nothing. On 17 June 1972, five men of the White House “plumbers” unit were arrested in a break-in at the Democratic National Committee headquarters at the Watergate Hotel. The next day, the White House press secretary, Ron Ziegler, trotted out to minimize the incident as a “third-rate burglary attempt”. He was following Nixon’s directive to downplay the affair as meaningless. “It’s going to be forgotten,” Nixon said on 20 June. The next day, in one of the first meetings in which he orchestrated the cover-up, he said: “I think the country doesn’t give much of a shit about it … And the answer, of course, is that most people around the country probably think this is routine, that everybody’s bugging everybody else, it’s politics.”
But Nixon’s attempt to bury the break-in spread into an elaborate effort to contain and conceal the scandal in order to protect his campaign for re-election. His White House counsel, John Dean, told him there was “a cancer on the presidency”. But Nixon’s cover-up grew: from obstructing the FBI investigation, to misleading the public, to discrediting the investigative reporting of Bob Woodward and Carl Bernstein of the Washington Post, who were virtually alone in pursuing the story for months, to paying hush money to the burglars.
“Goddamn hush money”, Nixon called it. “We could get that,” he told Dean. “On the money, if you need the money you could get that. You could get a million dollars. You could get it in cash. I know where it could be gotten. It is not easy, but it could be done. But the question is who the hell would handle it? Any ideas on that?”
On 1 March 1974, the Department of Justice Watergate special prosecution force’s Watergate road map, officially titled the Grand Jury Report and Recommendation Concerning Transmission of Evidence to the House of Representatives, was delivered under seal to chief judge John Sirica of the US district court in the District of Columbia. He then provided it to the House judiciary committee, which launched its impeachment inquiry. This document was not publicly released by the National Archives until 2018 – about one month before Trump’s attorney, Michael Cohen, was sentenced to three years in prison for arranging hush-money payments on his client’s behalf.
Nixon’s and Trump’s motives run starkly parallel. “The President was well aware, as tapes and transcripts demonstrate,” the Watergate road map stated, “that the primary purpose of the conspiracy prior to the election (the ‘containment theory’) was to protect the President’s own political future.”
The road map also laid out the potential consequences for Nixon if his cover-up had been exposed after his re-election: “If the cover-up and obstruction of justice that had already occurred came to light in the spring of 1973, not only would all the President’s close advisors be subject to criminal liability but the President himself would have had to shoulder ultimate responsibility (moral, if not legal) for their actions. The President could well expect that the failure of the conspiracy at that stage (at least at its center) would jeopardize his ability to continue successfully in office and to remain an effective political force in the country and Republican Party.”
Echoing Nixon, Trump in his 2016 campaign conspired to exchange hush money for silence about certain of his actions that he believed would cost him the election if the public knew about them. As in Watergate, his crimes involved bribery, illegal campaign contributions and tax fraud. Trump directed his cover-up when he was a candidate, when he was the president-elect, and, in one instance, when he was president.
Every one of the 34 felony counts in Trump’s indictment begins with a citation of the same New York State criminal statute, §175.10, on falsifying business records in the first degree, which requires a mens rea – a state of mind – that “includes an intent to commit another crime or to aid or conceal the commission thereof”. Essentially, Trump has been indicted on what the Watergate prosecutors in the road map called the “concealment theory” that was at the heart of Nixon’s cover-up. In short, both Trump and Nixon committed business crimes to further their political crimes.
The New York indictment alleges that Trump falsified his business records, committing tax fraud and violating campaign finance law, to prevent the voters from learning that he had paid bribes. “From August 2015 to December 2017, the Defendant orchestrated a scheme with others to influence the 2016 presidential election by identifying and purchasing negative information about him to suppress its publication and benefit the Defendant’s electoral prospects,” reads the statement of facts connected to the indictment.
Like Nixon, Trump conspired with others to achieve his ends. Several of his co-conspirators have already “admitted to committing illegal conduct in connection with the scheme”, according to the statement of facts. In 2018, Trump’s personal attorney, Michael Cohen, named as “Lawyer A” in the indictment, was prosecuted by the US attorney of the southern district of New York and found guilty of two crimes of illegal campaign contributions. He has since served a three-year prison term.
David Pecker, the chairman and CEO of American Media, Inc, which owned the National Enquirer and other tabloids, entered into a plea agreement for non-prosecution with the southern district in exchange for his confession that he engaged in a “catch and kill scheme” to discover and pay sources so they “did not publicize damaging allegations” about Trump “before the 2016 presidential election and thereby influence that election”. Pecker had known Trump since 1998, when as a publisher he produced a quarterly magazine called Trump Style for Trump to distribute at his golf clubs, casinos and hotels.
Per the indictment, the conspiracy began at a meeting in August 2015 at Trump Tower of Trump, Cohen and Pecker. Trump had announced his candidacy two months earlier. Pecker pledged to be his “eyes and ears”, on the lookout “for negative stories about the Defendant and alerting Lawyer A [Cohen] before the stories were published”.
The first payment went to a former Trump Tower doorman named Dino Sajudin, who had bruited about the rumor that Trump had an illegitimate child with a housekeeper. He said he was repeating a story he had heard from Trump’s head of security, Matthew Calamari. Although Sajudin passed a lie-detector test administered by a private detective hired by the National Enquirer, the Enquirer’s reporters could find no evidence to back up his the claim, nor could Ronan Farrow of the New Yorker when he investigated. Nonetheless, the Enquirer paid the loose-lipped doorman $30,000 to zip it.
Pecker “directed that the deal take place because of his agreement with the Defendant and Lawyer A [Cohen]”, and “falsely characterized this payment in AMI’s books and records, including in its general ledger”, according to the statement of facts. After determining that the story was false, Pecker wanted to release Sajudin from his non-disclosure agreement, but Cohen told him to wait “until after the presidential election”.
The next payment went to “Woman 1”, Karen McDougal, the 1998 Playmate of the Year, whom Trump had met at a pool party at the Playboy Mansion in June 2006, three months after his wife Melania had given birth to their son. Trump and McDougal had an affair that lasted for 10 months. Ronan Farrow of the New Yorker reported her note on that initial encounter: “We talked for a couple hours – then, it was ‘ON’! We got naked + had sex. He offered me money. I looked at him (+ felt sad) + said, ‘No thanks–I’m not ‘that girl.’ I slept w/you because I like you–NOT for money’–He told me ‘you are special.’”
Trump, Cohen and Pecker held “a series of discussions about who should pay off Woman 1 to secure her silence”, according to the statement of facts. Pecker agreed to cover the payment if he were reimbursed. “So what do we got to pay for this? One fifty?” Trump asked Cohen in an audio recording. Trump suggested an untraceable cash payment. Cohen created a shell company, Resolution Consultants, LLC, to pay McDougal by check, but, in the end, Pecker made the whole payment himself.
On 7 October 2016, the 2005 Access Hollywood tape of Trump’s lascivious boasting broke: “I just start kissing them. It’s like a magnet. Just kiss. I don’t even wait. And when you’re a star, they let you do it. You can do anything … Grab ’em by the pussy. You can do anything.” Three days later, in full damage-control mode, Pecker’s AMI editor connected Cohen with the lawyer of a new danger, “Woman 2”, “to secure Woman 2’s silence and prevent disclosure of the damaging information in the final weeks before the presidential election”.
The recipient of the third payment, Woman 2, was the adult film actor Stephanie Clifford, better known as Stormy Daniels. Trump and Daniels had a sexual encounter in July 2006, at a golf tournament at Lake Tahoe to which Trump had also brought McDougal (“Woman 1”). (He and McDougal had begun their affair just a month earlier.) That same weekend, Ronan Farrow has reported, Trump invited four other adult film actors to his hotel room for sex, offering one of them $10,000, but that they rejected him.
Cohen and Pecker’s lawyer struck a deal to pay Stormy Daniels $130,000 to “prevent disclosure of the damaging information in the final weeks before the presidential election”, per the indictment. But Trump resisted paying, calculating that “if they could delay the payment until after the election, they could avoid paying altogether, because at that point it would not matter if the story became public”. In the end, Cohen paid himself through the shell company after Trump agreed he would pay him back personally.
On 14 February 2017, Valentine’s Day, Cohen submitted fraudulent invoices for a fraudulent retainer for fraudulent services rendered that then president Trump paid with two checks from his trust, fraudulently recording them as retainers and stapled to the fraudulent invoices.
During the presidential transition, Trump invited Pecker to Trump Tower to thank him “for handling the stories of the Doorman and Woman 1 [McDougal]”, and invited him to the inauguration and to a White House dinner. He was grateful to Pecker for more than the “catch and kill” operation. Throughout the campaign, Pecker had also conducted the systematic smearing of Trump’s opponents from both parties as part of the deal. While the hush money was secret, wild stories about his rivals were blazoned on Pecker’s tabloids displayed at every supermarket counter.
The Enquirer and AMI’s even more down-market Globe headlined stories of his Republican rivals: Ted Cruz’s father was linked to Lee Harvey Oswald, the assassin of John F Kennedy; Cruz was covering up his numerous extramarital affairs; Carly Fiorina was “a homewrecker”; John Kasich was a closeted homosexual. On Hillary Clinton, the papers screamed “Six Months To Live!” She was a money launderer who “will face prison”. She was gay. Bill Clinton was a cocaine addict who was not Chelsea Clinton’s father.
“You can’t knock the National Enquirer,” Trump said, defending the tabloid libels, while falsely disclaiming any responsibility of his own for them. “I’m just referring to an article that appeared. It has nothing to do with me.”
Many if not most of the fabricated stories originated with Roger Stone, a former Nixon Committee To Re-Elect operative and a link between the “ratfucking” dirty tricks of the Nixon underworld and Trump’s. Trump reviewed the smears before they appeared, and Cohen gave them a final stamp of approval.
In 2018, federal prosecutors granted Pecker immunity for his testimony on the “catch and kill” scheme in the Michael Cohen case that led to his conviction. In 2019, Pecker sold AMI to an equity firm, and a year later he was removed as CEO.
Now, with Trump’s chief media co-conspirator taking the non-prosecution deal, Trump has substituted his Truth Social site for the National Enquirer. He cannot rely on Pecker and the Enquirer to do his smearing for him. His previous “containment strategy” having failed, he has been forced to run a campaign of obfuscation, obstruction and intimidation openly by himself. His tweets attacking the judges presiding over his cases, their relatives and court clerks have filled the vacuum left by the Enquirer.
“It is no longer just a mere possibility or a reasonable likelihood that there exists a threat to the integrity of the judicial proceedings. The threat is very real,” stated Judge Juan Merchan of the New York court in his second gag order. Trump’s “recent attacks”, he said, constitute “a direct attack on the Rule of Law itself”.
Trump’s targeted assaults on the justice system are intended to instill fear while at the same time he depicts himself as the victim. They are also an extension of his cover-up. It is fundamental to both his defense and political strategy. If he could, he would engage in a “Saturday Night Massacre” like Nixon, who ordered the attorney general, Elliot Richardson, and deputy attorney general, William Ruckelshaus, to fire the special prosecutor Archibald Cox, which they refused to do and instead resigned. Nixon finally got the solicitor general, Robert Bork, to do his dirty work.
But Nixon’s desperate act could not stop the wheels of justice from grinding. A new special prosecutor, Leon Jaworski, sought the release of Nixon’s White House tapes. In his January 6 coup, as if imitating Nixon, Trump demanded the resignation of his previously compliant attorney general, William Barr, when he declined to become involved in the patently illegal fake elector scheme, and tried to replace him with lackeys.
Trump’s last-minute attempt to short-circuit his New York trial by invoking presidential immunity was denied on 3 April. In the case over whether Nixon was required to turn over his White House tapes, United States v Nixon, Nixon’s attempt to secure immunity was denied. The US supreme court decided unanimously that his limited privilege in military and diplomatic affairs did not cover and must yield to “the fundamental demands of due process of law in the fair administration of justice”. That decision against Nixon stands as an obstacle to Trump’s claim of total immunity now.
The salaciousness of Trump’s crimes in the New York case may distract from the basic reality that the means of his cover-up strongly resemble those employed by Nixon for the same end of influencing a presidential election. For that very reason, Trump’s hush-money case is on a continuum with his other high crimes of subversion.
The revelation that Trump conspired to eliminate his Democratic opponent Joe Biden by withholding defensive weapons from Ukraine in exchange for bogus political dirt – which, we now know from the recent congressional testimony of one of the key co-conspirators, Lev Parnas, was fabricated by Russian intelligence – led to Trump’s first impeachment. His conspiracy to stage a coup to prevent the Congress from ratifying the electoral college vote in the 2020 election led to his second.
But if Trump is convicted of any of the felony counts in his New York trial his fate will diverge from Nixon’s. When the “smoking gun” tape exposing Nixon’s role in the cover-up was released, Nixon resigned. He was never impeached. He was never officially charged with his crimes. He never faced trial. President Gerald Ford pardoned him. Nixon accepted the pardon, an implicit acceptance of his guilt.
If Trump seeks a pardon, he must throw himself on the mercy of the governor of New York, Kathy Hochul. On 1 April, he tweeted on his Truth Social account that she was “asked to leave” the wake of a slain New York City police officer, which she rebutted as a falsehood.
Trump’s New York case is, at last, the first time a cover-up to steal the presidency through bribery is on trial. Only superficially is it about Trump’s tawdry and pathetic sex life. The true subject of abuse at the center of the trial is the constitution, his ultimate victim.
Sidney Blumenthal, former senior adviser to President Bill Clinton and Hillary Clinton, has published three books of a projected five-volume political life of Abraham Lincoln: A Self-Made Man, Wrestling With His Angel and All the Powers of Earth
