How Plausible is the Melania Defense?

 by Michael C. Dorf

Despite Donald Trump's incendiary announcement that he will be indicted and arrested today, there is no good reason to think that he has access to any inside information. After all, we are talking about a man who, as President, typically did not read classified briefings prepared specifically for him but spent hours watching cable news. He does not base his pronouncements on reliable sources, much less facts.

Nonetheless, there is good reason to think that Manhattan District Attorney Alvin Bragg's office will secure a grand jury indictment of Trump in the coming days or weeks, even if not in the next few hours. Accordingly, in today's essay I shall preview what I'll somewhat inaccurately call the "Melania defense."

Trump is likely to be charged with falsifying business records by recording as legal fees his reimbursements to fixer Michael Cohen for payments Cohen made to Stormy Daniels as hush money. As Professors Ryan Goodman and Andrew Weissmann note today in a NY Times op-ed, that mischaracterization made Trump's tax documents and campaign filings fraudulent. However, merely falsifying a business record is a misdemeanor in New York. Trump will not be arrested for a misdemeanor. To elevate second-degree/misdemeanor business record falsification to a first-degree/felony charge requires that the DA prove that Trump's "intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof."

Presumably, the grand jury will indict Trump, if it does, on the ground that he falsely listed the hush-money reimbursement to Cohen as legal fees to conceal the commission of the "[]other crime[s]" to which Cohen pleaded guilty and for which he served time in prison.

As some of Trump's defenders (and even some anti-Trump observers) have noted, there is an obvious line of defense against the felony charge. Trump's lawyers can admit that he deliberately mischaracterized the payments to Cohen as legal fees--and thus that he committed a misdemeanor--but that his intention in doing so was not to cover up any other crimes but to cover up the fact that he had an affair. In this narrative, Trump's intent was that of any cheating husband: to prevent his spouse from learning of his extra-marital sexual relationship.

I hope the term "Melania defense" catches on, even though it's not exactly accurate. If Trump's intention was to prevent his wife from learning of his affair, then that negates the government's case against him. "I was intending to deceive my wife" is not an affirmative defense. That means, among other things, that the DA will have the burden of proving beyond a reasonable doubt that Trump's intent was to cover up another crime.

Can the DA prove that? Because of grand jury secrecy, we don't know exactly what evidence DA Bragg will be able to offer, but it's worth noting a legal point that much of the public commentary on the case has thus far overlooked. Take another look at the language in the first-degree/felony offense. Note that it does not require that the government prove that Trump's exclusive motive was to conceal the commission of another crime. The statute requires only that the government prove that the defendant's "intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof." (Emphasis added).

That seems like a pretty low bar for the DA, given two pieces of evidence that are already known.

1) The first crucial bit of evidence is timing. According to Daniels, she and Trump first met in 2006 and had sex once thereafter at some point before 2011. The hush money payment did not occur until October 27, 2016, less than two weeks before the general election for President. The reimbursements to Cohen--who had made the payment to Daniels from funds he obtained by taking out a personal home equity loan--occurred over the course of 2017, while Trump was President. If Trump's exclusive motivation was to keep the sexual liaison secret from Melania, one would have expected him to have paid off Daniels much earlier.

To be sure, Daniels has said that in 2011, after she gave an interview to In Touch magazine that never aired because Cohen threatened to sue, her own physical safety was threatened by a man who told her to "leave Trump alone." Trump's lawyers can argue that this threat to Daniels shows that Trump wanted her hushed long before he entered politics--and for the usual reasons that cheating husbands don't want their paramours blabbing.

But this argument would require Trump's lawyers to argue that Daniels was indeed threatened and that the threat came from Trump. While the statute of limitations for that crime (which allegedly occurred in Las Vegas) has probably run, it's an extremely risky proposition to argue to a jury that Trump didn't commit the New York felony because he sent a goon to threaten Daniels in Nevada.

And again, even if Trump was behind a threat to Daniels in 2011, that only would show that Trump was partly motivated by fear of his wife learning of the liaison. The timing of both the payment to Daniels--on the eve of the election--and the reimbursements to Cohen--during Trump's first year in office--very strongly suggest that Trump was at least partly motivated by the goal of concealing the mischaracterization of the campaign finance and other offenses.

2) The other problem with the Melania defense is that Trump is a well-known philanderer. He cheated on his first wife with the woman who would become his second wife. He has been accused of affairs and numerous sexual assaults. And in the notorious Access Hollywood recording, he boasted about his ability to commit sexual assault. If Trump was trying to conceal his infidelity from Melania, he was doing a very very poor job of it.

That said, the hush money payment is hard to understand regardless of Trump's motivation. Anyone paying the slightest bit of attention in 2016 could hardly have failed to notice that Trump was, at best, a sexual libertine. The premise of the hush-money payment had to have been that some number of Trump voters thought like this: "I was planning to vote for this racist boor who cheated on his first wife, has been accused of multiple sexual assaults, and even bragged about committing such assaults, but now that I've learned that he once had extramarital sex with a porn star, that's it, I'm not going to vote for him."

That's bizarre. Nonetheless, Trump, through Cohen, did pay the hush money. And maybe it was politically sensible. After all, his margins in the key swing states in 2016 were razor-thin. Some number of low-information voters could have been influenced by greater prominence to the Stormy Daniels story on the eve of the election.

I've considered elements of the case against Trump based on what's known. Of course, the grand jury has also been hearing from Trump's associates. If an indictment comes down, it's quite possible--indeed likely--that it will be based in part on testimony of witnesses who report conversations (perhaps even supported by documents) that show that Trump's mischaracterization of the payments to Cohen as legal fees was at least partly motivated by the goal of concealing other crimes. If that evidence comes exclusively from Cohen, expect Trump's lawyers to argue--with some force--that Cohen's own past lies call his credibility into doubt. But if there is additional evidence from other sources, that evidence, combined with the foregoing weaknesses in the Melania defense, would make a conviction on the felony charge fairly likely.