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The fact that Donald Trump has been indicted four times means we all must use shorthand to differentiate between the cases. So one case is the “classified documents” case. We’ve got the twin federal and Georgia “election subversion” or “Jan. 6” cases. Then there’s the first case charged: the Manhattan “hush money” case, which will also be the first to go to trial, next week, unless Trump succeeds in delaying it.
But that last shorthand might not be totally apt, if a Monday letter from the judge in the case is any measure. Indeed, New York Supreme Court Justice Juan Merchan seems to indicate that what we really have is a third election interference case.
“The allegations are in substance, that Donald Trump falsified business records to conceal an agreement with others to unlawfully influence the 2016 presidential election,” Merchan summarizes in laying out the process for jury selection, which is set to begin Monday.
Merchan isn’t exactly rewriting the charges against Trump. But the characterization is a reminder that there’s more at stake here than Trump’s alleged affair with adult film actress Stormy Daniels, hush money or even allegedly breaking the law by hiding the hush money paid to Daniels. (Those particulars are salacious but seemingly small-bore compared with Trump’s other three indictments.)
What we also have is an alleged plot to illegally obscure damaging information to benefit the winning candidate in a very close election. And given how close that election was, it’s hardly ridiculous to wonder what effects this alleged crime may have had on the country’s course.
But could it possibly have swung the 2016 race?
That’s unknowable. But there are a couple of things we can say.
One is that Trump’s victory came by less than one percentage point in the decisive states. He won Michigan by 0.2 percent, Pennsylvania by 0.7 percent and Wisconsin by 0.8 percent: Change 78,000 votes in those states or shift the entire electorate just one point toward Hillary Clinton, and Trump is never president.
The other is that Trump appears to have won because voters who were undecided late in the race broke strongly for him. Exit polls showed that those who made their voting decision in the final days broke for Trump by 11 points in Michigan, 17 points in Pennsylvania and 29 points in Wisconsin.
And there were enough such voters in each state to make the difference, as I wrote back then:
The question from there is whether a potential late disclosure of an alleged affair with a porn star may have had enough of an effect on enough voters — either those many wavering late deciders or any other voters. Again, we’ll never know.
It’s tempting to say that it wouldn’t have. Voters, after all, elected Trump despite learning a month before Election Day about the “Access Hollywood” tape in which Trump mused about sexually abusing women. Trump overcame any number of other controversies to get elected. And late deciders tend to break against the party that holds the White House, as Clinton’s party did at the time.
But just because Trump won doesn’t mean he was Teflon. Punditry often devolves into treating every attack on a winner as a failure, because they won. But sometimes things do damage a winning candidate — just not enough to lose.
As appears to have been the case with “Access Hollywood.” A 2020 study from the University of Massachusetts and Brandeis University examined the 2016 Cooperative Congressional Election Study. It found that those who were exposed to the tape were two points less supportive of Trump.
Brandeis’s Jill S. Greenlee concluded that the 2.1-point “popular vote loss might have been narrower for Trump or maybe wouldn’t have happened at all” if not for the tape.
To believe Trump would have suffered further from the Daniels allegation would involve a few things. One would be her actually lodging it publicly if she wasn’t paid off. Then Trump would need to have lost voters who weren’t sufficiently turned off by — or aware of — the “Access Hollywood” tape and his other controversies.
Certainly, there’s something to be said for a critical mass of controversies potentially serving as a breaking point for voters. Or perhaps some voters who accepted Trump’s defense that the “Access Hollywood” tape was mere “locker room talk” may have been more concerned about a more substantial allegation about Trump’s actual conduct. An affair with a porn star is the kind of thing that would seemingly be at least something of a problem for many of Trump’s then-newfound evangelical Christian supporters.
Of course, media coverage of alleged Trump affairs followed him for decades, so perhaps it was baked in to his brand by that point. And given the affair probably wouldn’t have been and still hasn’t been proven — Trump has always denied it, though he has lied about the situation — maybe voters would simply chalk it up to being unknowable. Perhaps they would even view it as a last-minute dirty trick from a disreputable character — an adult film actress.
What’s clear is that Trump and his then-lawyer Michael Cohen saw potential value in covering up the whole thing. And whether illegally or otherwise, they deprived us of this counterfactual. You can’t rerun an election, so in that sense the plot may well have paid off.
But as Trump faces legal accountability for it, it’s probably worth recognizing that the “hush money” and even the “falsifying business records” shorthand doesn’t really account for all that this alleged crime may have meant — for Trump or the country.