Alvin Bragg Goes Full Captain Ahab on Trump

I t’s ba-ack: the Trump investigation that will not die. The New York Times reports that, in a “dramatic escalation,” Manhattan District Attorney Alvin Bragg’s prosecutors are now presenting evidence to a state grand jury, setting their investigation “on a path toward charges against the former president.”

Referring to Bragg’s predecessor in this context, I’ve previously described Trump as “Cy Vance’s White Whale.” While it’s hard to get progressive prosecutors to mobilize against the varieties of crime that have made one-party, Democrat-controlled, big blue cities increasingly unlivable — especially violent crime, gang crime, and subway crime (these categories are not mutually exclusive) — Vance spared no expense in his quest to nail Trump on penny-ante nonsense, including hush-money payments to a porn star that almost certainly did not violate federal campaign-finance laws, which is why federal prosecutors dropped their Trump probe. As those federal laws are not a basis for state prosecution, the DA has had to develop even more tenuous theories of criminal liability.

What Vance was really hoping was that the Trump tax returns and other financial records that became a media-Democrat obsession would be the mother lode of fraud. When he finally got his hands on them after a few years and two trips to the Supreme Court, the disappointment was palpable. Not long afterward, Vance gave way to Bragg, who dropped the case, to the consternation of the heavy-hitter former prosecutors Vance had recruited to pursue it. One of them, Mark Pomerantz — my old Criminal Division chief at the U.S. attorney’s office in Manhattan — is on the verge of publishing a book about it, The People v. Donald Trump.

Bragg’s decision to mothball the investigation was obviously very unpopular among New York lefties and Democrats across the country. The DA became even more isolated when he was upstaged by the state’s attorney general Tish James, who has tried to make a massive civil case out of the Trump business practices that federal and state prosecutors had decided not to pursue criminally (because penal offenses have to be proved beyond a reasonable doubt, a more demanding standard than the mere preponderance standard applicable in civil law).

In raising expectations that he will charge Trump after all, Bragg may hope to stanch the criticism of his prior reluctance to bring a dubious case. And perhaps he fears he will otherwise become a pariah in Democratic circles next Tuesday, the scheduled publication date of Pomerantz’s book — which, the Times reports, Bragg has been trying to dissuade Simon & Schuster from publishing, on the grounds that it might disclose grand-jury information or interfere with his now-revived investigation. Whatever the reason, Bragg’s minions have stepped up the pace of their probe, suggesting that an indictment is imminent, at least in the next few months.

To repeat what I said the last time L’affaire Stormy Daniels reared its head in reporting about the DA’s investigation:

That’s the allegation that, during the 2016 campaign, Michael Cohen, Trump’s former “fixer” (as Cohen described his role), paid hush money to porn actress Stephanie Clifford (Stormy Daniels is her, er, stage name) to conceal a tryst she says she had with Trump. Cohen has related that, at Trump’s direction, he paid Clifford $130,000 and was subsequently reimbursed by the Trump Organization, which employed curious bookkeeping that did not disclose the true reason for the payment. Trump has acknowledged the payment and the nondisclosure arrangement but denied — not very convincingly — both the fling and any nexus between his campaign for the presidency and the hush money paid a few days before the election to conceal an encounter said to have happened a decade earlier.

It seems boneheaded to reopen this sordid business. Put aside that the Trump matter is trivial compared to surging violent crime in the Big Apple which, to the increasing anger of New Yorkers, Vance’s successor Alvin Bragg is quite lax in prosecuting. Assuming that fraud is the theory of the new/old case, the statute of limitations in New York law is six years. Cohen paid Clifford over six years ago. But let’s assume, for argument’s sake, that the scheme is deemed to have extended a few months beyond 2016 because Trump did not reimburse Cohen until August 2017. Even so, the DA’s office previously determined that its theory of criminal liability under New York law would not hold up — reasoning that could be discoverable by the defense if Trump were charged. Moreover, the case would rely on information from (a) Cohen, a witness with so much baggage that federal prosecutors, who decided not to pursue a campaign-finance case against Trump, refused to give him a cooperation agreement (which is why Cohen was sentenced to three years in prison after pleading guilty to several felonies), and (b) Clifford, who later unsuccessfully sued Trump for defamation and thus owes him about $300,000 in legal fees. But wait! The Times says the DA’s office is also trying, yet again, to squeeze former Trump Organization financial officer Allen Weisselberg, who has repeatedly spurned them on this subject.

Since I penned that in November, Weisselberg has been sent packing for a few months at Riker’s Island — not the nicest place for a 75-year-old white-collar bean-counter — even though he testified for Bragg’s prosecutors in their successful prosecution of Trump’s real-estate business on trivial tax counts. Clearly, the hope is that Weisselberg will get his mind right regarding Trump himself, whom the accountant has reportedly not implicated in any activity that would be grist for personal (as opposed to corporate) criminal charges. Of course, as I observed in that earlier post, if Weisselberg were suddenly to change his tune, cross-examination would be a field day for Trump’s very able criminal defense lawyer, Ron Fischetti — who just happens to be Mark Pomerantz’s former law partner.

What Melville could make of this! In any event, to repeat myself again, this is the terrain Republicans will be navigating if they seriously consider nominating Trump for the presidency. Regardless of whether Bragg pulls the trigger, Fulton County’s Democratic prosecutor, Fani Willis, may do so in connection with Trump’s effort to reverse Georgia’s 2020 presidential election. And even though the classified-information fiascos of President Biden and former Vice President Pence may prove to be a get-out-of-jail card for Trump, in what until recently looked like the certainty that he would be indicted in the Mar-a-Lago classified-documents probe, the Justice Department is still digging — on both that investigation and a possible January 6 prosecution.

And that’s just what we know about at the moment. Is more coming? I don’t know . . . but I do know that every Democratic prosecutor in the country sees a Trump case as the path to party stardom.