In response to:
Bump and Grind from the May 11, 2023 issue
To the Editors:
Fintan O’Toole is a brilliant writer, and usually a sharp-eyed observer of things cultural and political, here and abroad. In his latest piece, “Bump and Grind” [NYR, May 11], he again excels as a writer. Regrettably, however, he falls short as a legal observer, and in a way that is unhelpful to the body politic.
With wit and a deft pen, he belittles a Manhattan grand jury’s March 30 indictment of Donald Trump. Trump stands accused of falsifying business records in connection with his alleged hush money payment of $130,000 to the adult film actress Stormy Daniels.
O’Toole argues that the prosecution is much ado about very little. Unfortunately, he minimizes the very large thing—at least to this former prosecutor—that is the core of the case: deceiving the electorate on the eve of an election.
O’Toole argues that revelation before the election of Trump’s 2006 tryst with Daniels would have had no effect on the outcome. Because the scandalous Access Hollywood tape did not stop Trump’s election, O’Toole hypothesizes, neither would publication of Daniels’s story.
Perhaps. But the opposite conclusion is plainly the one that Trump and his advisers reached in October 2016. The Access Hollywood tape had him on the ropes weeks before the election. One more sexual scandal could have delivered the TKO. So they rushed to buy her silence.
Check out the detailed, factual timeline from the Just Security blog, starting on October 7. The panic in Trump’s camp to squelch Daniels’s story immediately after Access Hollywood went viral was evident from the frantic pace of phone calls, texts, and e-mails among Michael Cohen, the National Enquirer, and Daniels’s attorneys. She had been peddling the story for months. Within two days of the tape’s revelation, Daniels had a deal with Cohen.
O’Toole erroneously writes, “All the public evidence we have…suggests that what he was really afraid of was the reaction not of his voters but of his wife.” This is Trump’s defense, but it’s completely inconsistent with the timing of the panicked negotiations that took place.
O’Toole also overlooks something crucial in the grand jury’s statement of facts accompanying Trump’s indictment:
[Trump] directed [Cohen] to delay making a payment to [Daniels] as long as possible. He instructed [Cohen] 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.
That doesn’t sound like someone primarily worried about the story’s effect on his wife. For one thing, according to her one-time friend the socialite Stephanie Winston Wolkoff, Melania knew of the tryst long before 2016.
It’s obvious that Fintan O’Toole does not intend to be carrying water for Donald Trump. The facts around the indictment are complex. In such matters, no writer is immune from error, present company included.
Nonetheless, when accountability and justice are at issue, mistakes or oversights can build a thesis that does damage to public perception.
San Francisco, California
Fintan O’Toole replies:
There is an entirely valid argument to be made about what effect the publication of Stormy Daniels’s allegations might have had on the final weeks of the 2016 presidential election campaign. No one can ever really know, which is why it does not make much sense to frame this argument as a question of truth or error. We are in the realm of best guesses—which does not seem to me to be the most comfortable terrain for the indictment of a former president.
It is certainly true that there was panic in the Trump camp (and in the Republican Party leadership) about the release of the Access Hollywood tape on October 7, 2016. It is also undisputed that this was the catalyst for rushing to conclude the deal to pay off Daniels. (The deal was made three days after the tape became public, not, as the writer suggests, two.) But what I contend is something rather different: that there is no evidence that either of these “scandals” was (or would have been) of decisive concern to Trump’s electorate or that the release of one and suppression of the other had a material effect on the election.
The Just Security timeline referred to is very useful, but it has one great omission. It excludes the wider political situation and in particular the presidential debate of October 9, in which Trump effectively neutralized the “Pussygate” issue by pointing to Bill Clinton’s sexual misconduct. (He held a press conference just before the debate with women who had made accusations against Clinton.) Like it or not, this was extremely effective—the panic among the Republicans evaporated. Remember, this debate was the day before Michael Cohen agreed to make the payment to Daniels and three weeks before the money was actually paid to her.
Thus, before the hush money was paid, Trump had already found a way to deflect the whole issue of his own conduct toward women: not so much to deny it but to suggest that his opponent was implicated through her husband in similar misbehavior. One does not have to approve of this strategy to see that it worked. It was an all-purpose defense—the other side is just as bad—not only against the Access Hollywood revelations but also against any other accusations of sexual impropriety. I do not see any strong grounds for believing that it would not have been equally effective against the Daniels allegations—which raises serious questions about the claim that the hush money payment interfered with the outcome of the election.
As to whether Trump was primarily concerned with whether his wife Melania could use a public scandal over his affair with a porn star to take him to the cleaners in a potential divorce, the most salient witness is Cohen. It is Cohen’s testimony that is at the heart of the legal case against Trump, and the fact is that Cohen, in his memoir, recounts Trump saying to him of the hush money for Daniels that “a hundred and thirty thousand is a lot less than I would have to pay Melania.” Cohen also gives a detailed description of a phone call with both Trump and Melania in which, to please his boss, he tried to persuade her that he had made the payments himself merely to put a stop to Daniels’s “fake story.”
The point is not whether Melania believed this (Cohen did not think she did), but that the chief witness against Trump provides ample testimony showing that Trump was deeply anxious that his wife be mollified. His defense will be able to draw on the published evidence of his would-be nemesis to show that the state of his marriage (and the financial implications of a divorce) weighed at least as heavily on his mind as any electoral considerations.