Are there any relevant historical analogies that can help me understand the arguments?
To understand how the law can stymie a prosecution even when the extremely sleazy facts are quite clear, I’d point to United States v. McDonnell, the Supreme Court case that reversed the bribery conviction of a former Virginia governor, Bob McDonnell. The facts were embarrassing for him. He and his wife received loans, gifts and vacations from a supporter at the same time that McDonnell arranged meetings, hosted events and contacted other state officials in a manner that helped his benefactor.
The question before the Supreme Court wasn’t whether McDonnell received the funds or provided the favors but rather whether those favors constituted official acts within the meaning of the relevant federal law. In an 8-to-0 vote, the Supreme Court said no. Not everything that’s sleazy is illegal, and the question for Trump isn’t so much whether his conduct was morally wrong but whether it’s unlawful.
There are those who look at the vast scope of Trump’s corruption and wrongdoing before, during and after his time in the White House and wonder whether the proper historical analogy for the Manhattan prosecution is the prosecution of Al Capone for tax evasion. Isn’t it appropriate to bring down gangsters using even the most mundane of financial crimes?
Yes, absolutely, but only as long as they’re actually guilty of the more mundane crimes. There is overwhelming evidence that Trump did falsify business records. But that crime, by itself, is a mere misdemeanor with a two-year statute of limitations. The prosecution’s felony charges will stand or fall on the legal argument that Cohen violated federal law or that relevant New York statutes aren’t pre-empted and that Trump violated them.
In short, the Trump prosecution faces serious legal questions, and the answers to the legal questions will decide the case far more than any factual dispute. The evidence shows rather clearly that Trump engaged in a scheme to pay off women who said they were his paramours, in order to influence the 2016 election. That is clearly immoral and would be extremely embarrassing to anyone who has shown signs that he is capable of embarrassment. But whether it was unlawful is the key question that will decide Trump’s legal fate.