Prosecuting Donald Trump in the Stormy Daniels case looks like a mistake

For another politician it would signal the end of a political career. In Mr Trump’s case, the question is to what extent a prosecution will act as fuel for a movement that seemed to be flagging. Mr Trump has been fundraising for weeks on the back of his impending indictment, which he predicted was coming on social media on March 18th. It turns out to have been one of his more accurate posts.

If Mr Trump has committed a crime it would be wrong to duck prosecuting him only because that would put stress on America’s governing institutions. Other countries have successfully prosecuted former presidents and prime ministers: think of Silvio Berlusconi in Italy or Nicolas Sarkozy in France. America should not endorse Richard Nixon’s view that if a president, or a presidential candidate does it, then it’s OK.

Treating a former president like any other citizen cuts both ways, though. Prosecutors like the Manhattan district attorney (DA) have discretion when deciding which cases to bring. They must weigh the seriousness of the crime, the likelihood of securing conviction and the public interest in prosecuting. That last part is the most contentious. About half of the American public is very interested in nailing Mr Trump; the other half thinks that he is being victimised by prosecutors. That half will hardly see the decision to go ahead with this case as evidence that justice is impartial.

What, then, of the legal arguments? The specific charges against Mr Trump will be known only once he is arraigned, but the facts are as follows. In the run-up to the 2016 presidential election, Mr Trump’s lawyer arranged to pay an actress in pornographic films to keep quiet about an alleged fling which occurred a decade earlier, one year into Mr Trump’s marriage to his third wife. The hush-money was paid shortly before the 2016 presidential election and not made public. In the Trump Organisation’s financial records the payment was described as “legal expenses”. It was made by Mr Trump’s lawyer, whom Mr Trump then reimbursed.

Republicans might once have considered such behaviour disqualifying: a generation ago many of the people who now think Mr Trump is being unjustly persecuted argued enthusiastically for removing Bill Clinton from the White House office over an extra-marital affair. Some Democrats, though admittedly a dwindling number, manage to hold the inverse position: that while Mr Clinton’s impeachment was unjust, the DA’s case against Mr Trump is sound.

But ethics and hypocrisy will not be on trial in Manhattan. The prosecution’s argument is that the payment of $130,000 to Stephanie Clifford (better known as Stormy Daniels) broke campaign-finance and accounting rules. America’s campaign-finance laws are much more permissive than those in most other Western democracies and their enforcement is rare and sporadic. In this case, Mr Trump is expected to be charged with in effect making a donation to his own campaign (which is legal) but not declaring it, which is probably not.

That does not mean the case against Mr Trump is clear. Yes his lawyer, Michael Cohen, has already pleaded guilty to breaking campaign-finance rules. But Mr Trump’s team would presumably argue that any fault was Mr Cohen’s (and also point to the fact that Mr Cohen also pleaded guilty to lying to Congress). Then there is the legal theory under which the case is likely to proceed. Labelling the payment in accounts as a legal expense, the other grounds for prosecution, is a misdemeanour. But prosecutors will argue that this misdemeanour made a breach of federal and state campaign-finance rules possible. Linking the two charges in this way is novel. The judge may decide it won’t fly. The legal case against him in Fulton County, Georgia, where he is accused of interfering with election results, looks much stronger.

Opponents of Mr Trump who dread the thought of him running for president again might, at this point, mention Al Capone’s tax arrangements. That is a bit unfair to Mr Trump, who is not taken to murdering rivals. It also misunderstands how the nominating process works. Were Mr Trump to be found guilty he could still run. Were he to be found innocent, he will claim that he was exonerated and add this to the sheet of charges he has beaten. Neither outcome would necessarily change his odds of winning a general election: there are few Americans still unsure about what to make of Mr Trump. But, by making his prosecution a litmus test for other candidates, it would help him to set terms in the Republican primary. It will be hard for other candidates to run against someone they all agree is the victim of a politically motivated prosecution.

Before Mr Trump was elected in 2016, The Economist thought that he would make an awful president. His invitation to the mob in Washington on January 6th ought to be disqualifying. He remains a threat not just to America, but to the rest of the West too. This should not cloud judgment about the case, though. Anyone who thinks now is the moment when he finally gets his comeuppance is making a mistake. If Mr Trump is to be prosecuted, it should be for something that cannot be dismissed as a technicality, and where the law is clearer. The Manhattan DA’s case looks like a mistake.

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