The Power to Destroy (part 3)

May 28, 2024

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In 2000, George W. Bush won the presidency by the narrowest of margins in the Electoral College. Graetz calls this “a fateful turning point for antitax advocates.” They would not achieve their most radical goals of abolishing income taxes or replacing the progressive income tax with a “flat tax” where all incomes were taxed at the same rate. But they would succeed in lowering tax rates again, especially for the wealthy.

Bush—from surplus to deficit

“Bush and his team designed his tax plan to include an across-the-board reduction in income tax rates that provided the greatest benefits to the top but also cut income taxes for everyone.” Two tax bills accomplished Republican aims, the Economic Growth and Tax Relief Reconciliation Act of 2001, and the Jobs and Growth Tax Relief Reconciliation Act of 2003. Together they lowered the top bracket rate from 39.6 percent to 35 percent, reduced the lowest rate from 15 percent to 10 percent, further reduced estate taxes, increased the child tax credit and extended it to higher-income families, reduced capital gains taxes, and taxed dividends at the low capital gains rates instead of ordinary income rates. The projected cost of the tax cuts was reduced by scheduling some of them to expire at the end of 2010.

The Bush administration was not deterred in its tax cutting by having to spend money on homeland security and Middle East wars following the September 11, 2001 terrorist attacks. The administration also added an unfunded prescription drug benefit to Medicare. By 2004, federal revenue had fallen to 15.6 percent of GDP, the lowest since the 1950s. The surplus that existed when Bush took office had turned into a deficit of 3.4 percent. This time, deficits would turn out to be a normal feature of federal budgets.

Near the end of Bush’s two terms, the Global Financial Crisis and ensuing Great Recession led Congress to enact economic stimulus legislation, which helped the economy but made the deficit worse. The measures included tax rebates of $300 per individual taxpayer and $300 for children, which phased out for higher-income taxpayers. The Keynesian idea of boosting the economy from the bottom up was coming back in style, but Republicans still preferred tax breaks to new domestic spending programs.

Obama—economic stimulus and resistance

Barack Obama became president in 2009 during the worst economic recession since the Great Depression. His American Recovery and Reinvestment Act tried to stimulate the economy with tax cuts, aid to the states, and infrastructure projects. It included the “Making Work Pay” credit that temporarily reduced taxes for working families by up to $800 in 2009 and 2010. In those two years, the deficit soared to about 9 percent of GDP.

Obama also wanted to fulfill his campaign promise of making health insurance more affordable. In 2010, Democrats narrowly passed the Patient Protection and Affordable Care Act (popularly known as Obamacare). It required taxpayers to carry health insurance, expanded Medicaid coverage, and subsidized insurance for other low-income taxpayers. It relied for funding on a combination of taxes on high-income individuals, health insurers, pharmaceutical companies, and medical device manufacturers.

Republicans steadfastly opposed Obama’s fiscal agenda. Their priority was extending the Bush tax cuts.

The antitax movement entered a new phase with the emergence of the Tea Party. The triggering event was Obama’s proposal to assist homeowners facing foreclosure. The collapse of the housing market had left many homeowners owing more than the market value of their home. Critics revived the old claim that Democrats were spending the money of hard-working taxpayers to assist undeserving deadbeats.

In the 2010 midterms, Republicans gained 63 seats in the House, the largest increase in over sixty years. They had a lot of bargaining power too, because Obama needed their cooperation to raise the debt ceiling to accommodate the growing national debt. In return, Obama had to agree to cut spending.

The Bush tax cuts were scheduled to expire at the end of 2010, but allowing taxes to rise was politically very difficult in the face of Republican opposition and a struggling economy. The Bush cuts were extended for two more years. Then in 2012, the American Taxpayer Relief Act made most of the cuts permanent, except those affecting the top 1% of taxpayers. The top tax rate was raised from 35 percent back to what it was under President Clinton, 39.6 percent. The government gave up most of the revenue it could have had by letting the tax cuts expire. Instead, it relied on austerity on the spending side to bring down the deficit to around 3% by the end of the Obama administration. Graetz concludes, “Despite Republicans’ moaning, they had won the war over taxes. Republicans remained steadfast against tax increases at any time.”

Trump—another round of tax cuts

Donald Trump was an unconventional Republican who appealed more to “America first” nationalism than to traditional free-market economics. His most well-known goals were restricting immigration, reducing foreign imports and bringing back American manufacturing jobs. Nevertheless, he followed the new Republican orthodoxy that called for tax cuts regardless of fiscal and economic circumstances.

Donald Trump’s calls for tax cuts were common for a Republican president but were exceptionally large for a growing economy facing large deficits. Singing from the classic antitax songbook, Trump insisted his tax cuts would not add to federal deficits or debt.

Trump claimed publicly that his tax plan would raise the taxes of wealthy people such as himself, while privately assuring his rich friends that he would lower their taxes. When he revealed his actual tax plan after taking office, neither economists nor the general public were enthusiastic. Since the Republicans now held majorities in both houses of Congress, he could pass it entirely without Democratic votes, and he did. The Tax Cuts and Jobs Act of 2017 cut both personal and corporate taxes. It also doubled the amounts exempt from estate taxes. The bill held down the projected cost by making the personal tax cuts “temporary” (from 2018 to 2025), but Republicans were confident that a future administration would be compelled to continue them. Wealthy taxpayers got the largest cuts, both in absolute dollars and as a percentage of income. The top bracket rate was cut from 39.6% to 37%.

President Trump tried to create American jobs by putting tariffs on certain imported goods, especially from China. These had two downsides that made them unpopular with economists: Importers passed along their increased costs to consumers; and China retaliated with tariffs on our agricultural exports. “Trade experts estimated the steel and aluminum tariffs cost American consumers and businesses about $900,000 for every job they saved or created.”

Under Trump, the deficit increased from 3.1 percent of GDP in 2016 to 4.6 percent in 2019. That was before a new national economic crisis induced a new spurt in federal spending. This time it was the Covid epidemic, which brought much of the country’s economic activity to a halt.

Biden—tax benefits for the non-rich

Like Obama before him, Biden inherited a distressed economy, which he tried to stimulate with both tax rebates and new spending.

With narrow control of both houses of Congress, Democrats managed to pass the American Rescue Plan Act of 2021. It contained new spending to fight Covid, especially to fund vaccinations. It also included tax credits, 70% of which went to families with less than $91,000 of income. It raised the child tax credit from $2,000 to $3,600 for each child under six, and to $3,000 for older children. Congressional Republicans, who for forty years had rarely met a tax cut they didn’t like, unanimously opposed this bill.

The Inflation Reduction Act of 2022 also passed without any Republican support. Its main goals were to promote clean energy production and hold down the costs of health care and health insurance. It was funded mainly with a 15 percent minimum tax on corporations (aimed at corporations that had been paying little or no taxes at all), and additional revenue expected from an increase in IRS funding. (Better enforcement of the tax code with more agents and auditing normally brings in more money than it costs.) Republicans especially hated the IRS funding, and tried unsuccessfully to repeal it.

Biden wanted to raise taxes on the wealthy, but never succeeded in doing so. The deficit spiked to 12.1% of GDP in 2021, but went down to 5.3 percent after the American Rescue Plan’s temporary spending and tax credits ended. As of now, expenditures have exceeded revenue every year since 2001.

In my last post on this book, I will offer some reflections on what the antitax movement of the last half century has accomplished, and what it has meant for the country.

Continued


The Power to Destroy (part 2)

May 26, 2024

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The antitax movement was encouraged by President Reagan’s partial success in cutting taxes. The antitax forces were also disappointed, but certainly not deterred, by his failure to reduce total federal spending or balance the budget. They continued to claim that cuts in tax rates could generate increases in tax revenue by encouraging saving, investment and economic growth. And if tax revenue did fall, that would eventually force government to rein in spending, whatever the cost to popular domestic programs.

Antitax warriors

Graetz’s book features three noteworthy figures who mobilized the antitax movement in the late 1980s and 1990s. They led the way in making tax-cutting the central mission of the Republican Party.

Grover Norquist founded Americans for Tax Reform and served as its first president. He had a radically hostile view of the federal government, often saying that he wanted “to get government down to the size where you can drown it in the bathtub.” As for taxes, he proclaimed, “There is no such thing as a just tax—it is a contradiction in terms. We just want the government to steal less of our money.” Apparently he thought that citizens owe their government nothing for whatever benefits they receive from it. In 1986, Norquist began urging politicians to sign a pledge that they would “oppose any and all efforts to increase the marginal income tax rates for individuals and for businesses…” Over the next few years, almost every Republican president, governor, Congressional representative and senator did.

Newt Gingrich was elected to the House in 1978 and served as Speaker from 1995 to 1999. He championed the most radical form of supply-side economics, claiming that tax cuts would actually increase federal revenue by stimulating growth. He did not hesitate to attack any president, even of his own Republican Party, who dared to raise taxes. He co-authored the “Contract with America,” the agenda Republicans ran on in 1994. It called for tax cuts, a balanced budget, and the requirement of a three-fifths majority to pass any future tax increases.

Rush Limbaugh was a talk-show host who became nationally syndicated in 1988. His antitax message was eventually heard on 650 radio stations and 200 TV stations. Graetz describes Limbaugh’s role in right-wing media as “the granddaddy of them all, untroubled by factual accuracy, often bigoted, feasting on outrage.”

“Read my lips”

In 1985, during Reagan’s second term, Congress passed the Balanced Budget and Emergency Deficit Control Act, also known as Gramm-Rudman-Hollings. It called for a phased reduction in the federal deficit until a balanced budget was achieved in 1990. (That date was later pushed back to 1993.) The bill mandated automatic spending cuts divided equally between defense and non-defense spending, if Congress failed to meet the annual targets on its own. At the end of the Reagan presidency, the Congressional Budget Office estimated that without tax increases, these cuts would have to be substantial, like a 42 percent cut in defense spending.

Nevertheless, Reagan’s successor, George H.W. Bush, ran with the campaign slogan, “Read my lips: No new taxes.” Two years into his presidency, over the vociferous objections of House Republicans like Gingrich, Bush bowed to necessity and signed the Omnibus Budget Reconciliation Act of 1990. This law raised the top income-tax rate from 28% to 31%. It also raised payroll taxes and taxes on gas, tobacco and alcohol.

When Bush was defeated for reelection in 1992, Republicans blamed his loss on his failure to keep his “no new taxes” pledge. They were determined not to make the same “mistake” again, regardless of the fiscal circumstances. No Republican president has agreed to a tax increase since.

Political polarization

When Bill Clinton took office in 1993, Democrats controlled Congress and the presidency for the first time since 1979. Clinton’s original hope had been to cut taxes for the middle class and increase some domestic spending, especially for his health-care initiative. He too was induced to shift his focus to deficit reduction. Federal Reserve Chair Alan Greenspan warned him that the government’s demand for loans to finance the deficit would eventually raise interest rates and hurt the economy. (For a less pessimistic view, see my summary of Stephanie Kelton’s The Deficit Myth, especially part 2.) Under Democratic leadership, Congress passed the Tax Reform Act of 1993, which reduced the deficit with a combination of tax increases and spending cuts. The top income-tax rate went up again, from 31% to 39.6%.

The Democrats suffered a major defeat in the 1994 midterms, losing the House for the first time in 40 years. Republicans ran on their Contract of America, which promised no tax increases. Newt Gingrich became Speaker of the House. The following year, House Republicans wrote much of their Contract with America into legislation. In addition to tax cuts, it included:

…a budget proposal to restructure and sharply limit Medicare and deeply cut Medicaid, welfare, job training, student loans, farm subsidies, and a host of other programs. It also proposed eliminating the commerce, education, and energy cabinet departments.

Clinton vetoed the Republican budget and stood by his more moderate plan. Republicans then shut down the government temporarily rather than pass the president’s budget. When public opinion turned against them, they finally gave in.

Clinton was reelected in 1996, but Republicans retained control of the House. In 1997, the two sides reached a compromise in which Republicans got some reductions in estate taxes and capital gains taxes (both mainly benefiting the wealthy), and Clinton got a $500 tax credit for families with low-to-middle incomes. In the following year, Republicans nearly succeeded in passing the Tax Code Termination Act, which called for ending all taxes except for payroll taxes. (It passed by 10 votes in the House but lost by one vote in the Senate.) The bill contained no plan for funding most of the government, given that payroll taxes normally go to fund Social Security, Medicare and Medicaid.

In the end, the tax breaks adopted in Clinton’s second term were not large enough to keep the government from achieving a balanced budget in 1998. Clinton’s moderate policy of combining tax increases with spending cuts had prevailed over the Republican agenda of radical tax cuts and draconian cuts in federal programs. For several years starting in 1998, the budget ran surpluses, but they were the last budget surpluses the country would see for a long time.

Continued


The Power to Destroy

May 24, 2024

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Michael J. Graetz. The Power to Destroy: How the Antitax Movement Hijacked America. Princeton: Princeton University Press, 2024

The title of this book comes from the classic statement by Chief Justice John Marshall in 1819, “The power to tax involves the power to destroy; the power to destroy may defeat and render useless the power to create.” Graetz ends his book by adding, “So, it turns out, does the power not to tax.”

Over the past half-century, advocates of low taxes have had some success in cutting taxes, especially taxes on high incomes and great wealth. Taxes in the United States are generally lower than taxes in other economically advanced democracies. “In 2021, counting state as well as federal taxes, U.S. taxes as a share of the economy were 7.5 percentage points lower than the average of the 38 OECD member countries.” Graetz is a tax lawyer, not an economist, so he describes the legislative and political accomplishments of the antitax movement more than he analyzes its economic consequences. Nevertheless, he is obviously skeptical that the benefits of low taxes outweigh the costs to society.

Sources of antitax sentiment

Graetz begins by saying that Americans have complained about taxes for a long time, but only since the late 1970s have so many joined together in an organized antitax movement. One reason for that is the unusual combination of income stagnation and inflation during that decade. Taxes were easier to tolerate when government seemed to be delivering strong economic growth without inflation. As times got tougher, the clamor for tax relief grew louder.

However, the reasons for antitax sentiment go deeper than that. Graetz argues that support for government programs to benefit the needy is lower in racially heterogeneous countries. The antitax movement was preceded by a time when the federal government was promoting civil rights legislation and funneling public money into a “war on poverty.” Since Blacks and Latinos were disproportionately poor, many whites felt that too many of their tax dollars were going to help people who were different from themselves, people who were often looked down upon. Southern whites especially left the Democratic Party in droves after it embraced civil rights. “The modern antitax movement rose and gained strength within the Republican Party alongside the party’s “Southern Strategy,” an electoral effort explicitly linked to racial division.”

Racial issues were also entwined with religion. Evangelical Christians were drawn to the antitax movement when the IRS was threatening to withdraw tax-exempt status from racially segregated religious schools. Republican activist Paul Weyrich, founder and first president of the Heritage Foundation, claimed that this issue enabled him to mobilize Christian conservatives more than abortion or school prayer. As president, Ronald Reagan sided with the churches against the IRS, saying that its effort to enforce racial integration “threatens the destruction of religious freedom itself.” He lost that battle when the Supreme Court ruled in favor of the IRS, but he won the hearts of many white Christians.

Another source of antitax sentiment was the increasing popularity of libertarian views, which were previously out of step with the pro-government sentiment of the New Deal and World War II era. The novels of Ayn Rand and the economic theories of Friedrich Hayek were dusted off and popularized. Their thinking celebrated the freedom to work and to enjoy the rewards of one’s own effort, not so much the obligation to support the collective good through government. Taxation was increasingly regarded as a threat to personal liberty and work incentive.

Many economists were turning away from Keynesian thought and rediscovering the glories of the unencumbered free market. Previously, economists had seen tax cuts as one tool that could stimulate a sluggish economy by increasing the demand for goods and services. But stimulating demand was not as clearly desirable when a sluggish economy was accompanied by double-digit inflation. Milton Friedman attracted attention and support by calling for tight monetary policy—high interest rates—to curb inflation. He also supported tax cuts, but for non-Keynesian reasons, to force government to cut spending and thereby reduce demand. In theory, cutting taxes would also give people more money to save and invest, which would stimulate the economy from the supply side, easing inflation. Cutting taxes for the wealthy should be especially effective, since they could afford to save and invest more.

The best-known supply-side economist was Arthur Laffer. He reasoned that if government taxes too little, it loses revenue. But if it taxes too much, it also loses revenue by discouraging people and businesses from producing as much as they could. There must be a happy medium, an optimal tax rate that produces the maximum revenue. Laffer always insisted that current tax rates were above the optimal rate, so that tax cuts would pay for themselves by actually increasing revenue. Few economists agreed, but Laffer’s argument became a major talking point in the antitax movement.

Graetz identifies three myths that motivated antitax crusaders:

(1) cutting taxes will increase government revenues, or, at the extreme, cutting taxes is the only way to raise government revenues; (2) lowering taxes will necessarily “starve the beast” by cutting government spending; and (3) reducing taxes at the top is the best way to grow the nation’s economy no matter the circumstances. These claims have been repeatedly debunked, but for more than four decades they have never disappeared from antitax advocates’ playbook.

One influential proponent of these ideas was The Wall Street Journal under the leadership of Robert Bartley.

Finally, the prospect of lower tax rates for the wealthy thrilled large political donors. They stood to gain the most from lower individual tax rates, lower corporate tax rates (which increased profits and shareholder dividends), lower capital gains rates (whenever they sold appreciated assets), and lower estate tax rates (when they left their fortunes to their heirs). Wealthy donors like Richard Mellon Scaife, Joseph Coors, and Charles Koch poured money into conservative think tanks like the Heritage Foundation and CATO Institute, which heavily promoted the antitax philosophy. “Money to organize meetings, produce favorable polls, generate supporting research by friendly experts, and contribute to political campaigns is more readily available to those who want to reduce their taxes than it is to their opponents.”

Proposition 13

The antitax movement began with a revolt against property taxes in California. The inflation of the 1970s had dramatically raised housing prices and property tax bills. But as with tax issues at the federal level, more was involved.

Property taxes financed public schools, but changing demographics and efforts to equalize spending across different kinds of districts undermined support for education funding. In the Los Angeles public schools, Black and Latino students were increasing in number, while many white students were leaving. In 1976, the California Supreme Court placed a limit on how much spending per pupil could vary from district to district across the state. The state legislature responded by redistributing some funds from wealthier districts to poorer ones.  Now richer homeowners could complain that their high property taxes were going to support someone else’s schools.

Proposition 13 was a referendum to amend the California state constitution in 1978. It called for limiting local property taxes to 1 percent of a property’s assessed value. It also required a two-thirds vote of the legislature to raise any state or local taxes. The amendment passed with most white voters supporting it and most black voters opposing it.

Graetz describes some of the results:

California ranked fourth among the states in per capita income, but after the enactment of Proposition 13, the state dropped to thirty-first in public school spending per child. Other services also suffered: community colleges, police departments, public hospitals and health programs, public works, local parks, and welfare and social services.

California was the first, but within the next four years, thirty-four other states cut property taxes too.

Reaganomics

The antitax movement soon targeted federal taxes. In the 1980 presidential election, Ronald Reagan campaigned on the promise that he could cut taxes, increase military spending, but still balance the federal budget by cutting other spending. President Reagan fulfilled the tax-cutting part of his promise with the Economic Recovery Act of 1981. This act immediately reduced the top bracket income tax rate from 70% to 50% and phased in cuts for lower brackets over the next two years. It created large tax savings for businesses and real estate investors by allowing them to deduct the cost of new investments more quickly. “New tax benefits for business were so generous that corporate tax receipts declined from about 15 percent to less than 9 percent of federal revenues.” The law provided additional benefits for the wealthy by cutting estate taxes and creating new ways for them to shelter income from taxation.

To assess the fiscal impact, I supplement the book with Federal Reserve Economic Data (FRED) from the Federal Reserve Bank of St. Louis. Between 1980 and 1983, federal receipts fell from 18.1 percent of GDP to 16.5 percent, while federal outlays rose from 20.7 percent of GDP to 22.2 percent. That means that the federal deficit rose from 2.6 percent of GDP to 5.7 percent, the highest since World War II.

The ink was hardly dry on the 1981 tax bill when pressure began to build in Congress for a change of direction. The Tax Equity and Fiscal Responsibility Act of 1982, which passed with bipartisan support, recouped some of the lost revenue by cracking down on underreported income. Reagan wasn’t happy, but he signed it in order to hold the deficit down.

The Tax Reform Act of 1986 also recovered some revenue by placing limits on tax shelters. But this time much of the gain in revenue was offset by another rate reduction for high earners. The bill replaced the many tax brackets ranging from 11 to 50 percent with just two rates, 15 and 28 percent. Taxpayers with high incomes got another windfall, while those with low incomes were protected from a tax hike by increases in the standard deduction and personal exemption.

By the end of Reagan’s administration, moderation of tax cutting and reductions in domestic spending brought the deficit down from 5.7 percent of GDP to 3.0 percent. Still, over the course of his eight years, “President Reagan added nearly twice as much to the federal debt as was accumulated during all of the presidencies that preceded him.” His tax cuts had neither paid for themselves nor forced equivalent cuts in spending.

In the 1980s, Congress still included many Republican moderates like Bob Dole, who were willing to raise taxes in order to keep the gap between receipts and outlays from growing too large. Over the next few years, positions would harden, so that Republicans united to resist any tax increases, regardless of economic or fiscal conditions.

Continued


Immunity: No-Brainer or Head-Scratcher?

April 26, 2024

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Last October Donald Trump tried to get the charges against him in the election interference case dropped on the grounds that a former president enjoys “absolute immunity from criminal prosecution for actions performed within the ‘outer perimeter’ of his official responsibility.” U.S. District Judge Tanya Chutkan ruled against him early this year, and the Court of Appeals for the District of Columbia upheld her ruling.

Judge Chutkan and the appellate judges found nothing in the Constitution or federal law that grants presidents immunity from criminal prosecution. What democratic society would forbid the prosecution of a president who did what Trump and his associates are accused of doing—trying to overturn the results of an election by illegal means, such as recruiting fraudulent electors in seven states? The answer would seem to be a no-brainer.

Trump’s attorneys claim that only if Congress has already removed a president from office by impeachment—something it has never done—can he be criminally prosecuted. But if a president is otherwise immune from prosecution, what is to stop him from undermining the impeachment process itself, such as by ordering his Attorney General to arrest Senators of the opposing party on bogus charges to keep them from voting for conviction?

The Supreme Court could have simply allowed the lower-court ruling to stand, so that Trump’s trial could proceed. Instead, they delayed their ruling and initiated a lengthy debate over whether presidents should enjoy immunity for “official” as opposed to “private” acts. This distinction has little relevance to the case at hand, since the president has no official role in certifying state election results. Even the vice president, who is responsible for counting the Electoral College votes certified by the states, has no authority to reject any of them. Only Congress has that authority, not the executive branch. When the lawyer representing the Justice Department tried to address the facts of the case the court is supposed to be deciding, Justice Alito said that he would rather discuss more abstract matters.

After over two hundred years of operating without a presidential immunity doctrine, the conservative justices on the Court seem to feel that we now need one. Formulating it will no doubt take months. The Court may ask the lower courts to devote valuable time trying to distinguish official and private acts, whether that helps resolve the real question of Trump’s criminal responsibility or not. In the end, the courts will probably decide that Trump does not qualify for whatever limited immunity the justices think up, since he was operating so far beyond his proper role in the election process. But by dragging the process out beyond the November election, the justices will have given him de facto temporary immunity. Then if he is reelected, he can have his Justice Department make the whole case go away.

If so, will the Supreme Court have served justice, or obstructed it? Will it be protecting the country against the future abuse of power, or just making it easier to get away with?


The NY Criminal Case against Donald Trump

April 24, 2024

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The criminal case against Donald Trump in the state of New York is a little complicated, but not so confusing that most people cannot follow it. The opening statements by the prosecution and defense lay out the issues rather clearly.

The prosecution’s opening statement

The prosecution explains that former President Donald Trump is indicted on 34 counts of falsifying business records. The Trump organization allegedly made 34 false entries on its books to cover up hush-money payments made by Michael Cohen to Stormy Daniels on behalf of Donald Trump.

The indictment claims that the records were falsified “with intent to defraud and intent to commit or conceal another crime and to aid and conceal the commission thereof…” The prosecution promises to show that another crime was indeed involved.

New York election law makes it illegal to conspire to promote or prevent the election of any candidate to office by unlawful means. The prosecution alleges that Donald Trump conspired with Michael Cohen and David Peck to “influence the presidential election by concealing negative information about Mr. Trump in order to help him get elected.” The unlawful means of doing so were the secret payments to Stormy Daniels and others to buy their silence. Although the opening statement refers to these as “illegal expenditures,” I did not see where it said exactly what made them illegal. I assume that at least one reason is that they were not  properly reported as campaign contributions. Perhaps the prosecutors are leaving it to the judge to instruct the jury on the relevant law. Remember that Michael Cohen has already been prosecuted and imprisoned at the federal level for making an unlawful campaign contribution by paying Daniels.

The prosecution also maintains that the conspirators went to a lot of trouble to cover up the $130,000 payment to Stormy Daniels. Cohen borrowed the money from a bank and then funneled it through a shell company to pay Daniels. He and Allen Weisselberg, Trump’s Chief Financial Officer, arranged for Cohen to be paid back at least twice that amount, since he would have to pay federal, state and local taxes when he falsely reported the reimbursement as income. The actual calculation was $130,000 + $50,000 for an unrelated reimbursement = $180,000; then 2 times that = $360,000; then an additional $60,000 for an end-of-year bonus, for a total payment of $420,000. This was then divided into 12 monthly payments of $35,000 and billed as monthly legal services. Trump allegedly made most of the payments out of his own bank account. “The defendant said in his business records that he was paying Cohen for legal services pursuant to a retainer agreement. But, those were lies. There was no retainer agreement.”

The prosecution summarizes that “this was a planned, coordinated long-running conspiracy to influence the 2016 election, to help Donald Trump get elected, through illegal expenditures, to silence people who had something bad to say about his behavior, using doctored corporate records and bank forms to conceal those payments along the way. It was election fraud. Pure and simple.”

The defense’s opening statement

The defense complains that the prosecutors talk about conspiracy without actually charging Trump with it. That is technically true. But they have charged him with falsifying business records in the first degree (a felony), and the prosecution needs to prove the criminal conspiracy to support that charge.

The defense denies that the $420,000 paid to Michael Cohen has anything to do with the $130,000 Cohen paid to Stormy Daniels. Trump is too frugal to overpay a reimbursement that way. The $420,000 is just what the organization says it is, a payment to Cohen for legal services. Trump had little involvement in it, since he only signed checks prepared for him by lower-level employees. “President Trump…had nothing to do with the invoice, with the check being generated, or with the entry on the ledger.”

The defense maintains that President Trump committed no other crimes either. “There is nothing wrong with trying to influence an election. It’s called democracy.” Also, “Entering into a non-disclosure agreement is perfectly legal…You will learn that companies do that all the time with some regularity.” The defense does not explain why Michael Cohen went to jail if what he did was perfectly legal.

Finally, the defense portrays Michael Cohen and Stormy Daniels as liars with axes to grind, so their testimony should be disregarded.

What to look for

As always in a criminal case, the burden of proof is entirely on the prosecution.  The evidence must prove beyond a reasonable doubt that Trump participated in a criminal conspiracy by encouraging and approving illegal payments. It must also prove that he participated in the falsification of records by signing checks that he knew were not the compensation for legal fees they were claimed to be. Michael Cohen will no doubt testify to Trump’s involvement in these matters. Because the defense questions his credibility, the outcome of the case may depend on what corroborating evidence the prosecution can present.

The two sides disagree on the law as well as the facts—in particular, whether buying someone’s silence to protect a political candidate is legal. Look for the judge to clarify New York law in that respect in his instructions to the jury.