The Manhattan DA’s office rightly told House Republicans to stay in their lane when they demanded he testify to Congress. Will he commit to staying in his?
The Manhattan DA’s office rightly told House Republicans to stay in their lane when they demanded he testify to Congress. Will he commit to staying in his?
N ot surprisingly, the office of Manhattan District Attorney Alvin Bragg excoriated Republican House committee chairmen over their constitutionally offensive and politically inept demand that he come to Congress and justify his investigation of former president Donald Trump — as if the feds were overlords of a sovereign state.
But now that Bragg, through a scathing letter penned by his general counsel, Leslie B. Dubeck, has admonished the federal lawmakers to stay in their lane, will he commit to staying in his?
The question is pressing because, in his unabashedly partisan Trump investigation, the elected progressive Democrat not only contemplates inflating a misdemeanor into a felony he has scant chance of proving; he would reportedly do so by attempting to enforce federal campaign-finance laws.
It is not enough to say that Bragg has no business doing this because, as a state prosecutor, he lacks jurisdiction to enforce federal criminal law — just as Republican House committee chairmen Jim Jordan (Judiciary), James Comer (Oversight), and Bryan Steil (Administration), as federal legislators, lack jurisdiction to oversee state prosecutors. Were he to take this step, Bragg would countermand the Justice Department prosecutors who, unlike him, are responsible for enforcing federal criminal law.
This should give the DA pause, especially in light of his general counsel’s bombast. Dubeck opens her letter by lecturing the congressmen about Bragg’s “oath to faithfully execute the laws of the State of New York,” before quoting from New York case law in support of the proposition that Bragg’s job is “to conduct all prosecutions for crimes and offenses cognizable by the courts of the county in which he serves” (emphasis added). Thus, she bristles that the federal lawmakers’ letter “treads into territory very clearly reserved for the states”; the sole reason investigators would usurp the police powers of another sovereign, she concludes, would be “for the personal aggrandizement of the investigators” — a motivation she labels “indefensible.”
Well, okay, but — speaking of the personal aggrandizement of the investigator — what should we make of Bragg’s reported plan to invoke a violation of federal campaign-finance law to inflate Trump’s alleged New York misdemeanor into a felony with a prison term of up to four years? Specifically, Bragg is poised to claim that Trump, in falsifying his business records, was intentionally covering up his purported failure to comply with disclosure provisions that federal law imposes on presidential campaigns. And he would apparently go this route on a theory that is legally infirm and factually incoherent.
Neither the Justice Department nor the Federal Election Commission bureaucrats, whose expertise lies in the operation of the relevant laws, alleged wrongdoing by Trump. And it’s not like they didn’t consider the possibility.
Federal prosecutors in Manhattan (the Southern District of New York, or SDNY), who were trying to make a case against the then-president, squeezed Bragg’s key witness Michael Cohen into pleading guilty to two campaign-finance charges — one pertaining to Stephanie Clifford, the porn star known as Stormy Daniels, whose hush-money deal is at the center of Bragg’s investigation; and the other involving Karen McDougal, the former Playboy model who also claimed to have had a fling with Trump (in the same 2006–07 timeframe), and whom Cohen arranged to have Trump’s pals at the National Enquirer pay off. The SDNY gave immunity to the implicated National Enquirer execs to shore up the case against Cohen, with an eye toward later indicting Trump. When Cohen pled guilty, the SDNY even had him publicly name Trump as the person who put him up to these shenanigans, although it is against Justice Department policy to publicly name uncharged persons when doing so is unnecessary.
In the end, though, the SDNY closed its investigation of Trump without bringing or recommending campaign-finance charges. You could counter that that was the Trump Justice Department, and that DOJ guidance forbade indicting a sitting president (which Trump was when Cohen pled guilty). But that wouldn’t hold up. Even putting aside the SDNY’s long record of bucking its DOJ overseers in Washington, the decision not to charge Trump has not been reversed in the two-plus years since Trump left office and Biden officials assumed control of both DOJ and the SDNY — even though we know the feds are working very hard to make one or more criminal cases against Trump.
Trump was not charged federally because, for all its political and moral unseemliness, a hush-money payment routed through a third party to a porn star is simply not an in-kind campaign contribution — nor is the reimbursement of the third party. Not all expenditures that could conceivably influence elections are campaign expenditures.
As several of us have noted with respect to the case of former Democratic vice-presidential candidate John Edwards, the law is so convoluted in this area that the FEC and the Justice Department have butted heads on it — the former giving Edwards a pass, the latter indicting him (only to have him acquitted by the jury). And as the always-perspicacious Kim Strassel observes, the feds prosecuted Edwards “for using campaign donations to hush up a mistress, while Mr. Bragg now wants to indict Mr. Trump for not using campaign donations for the same purpose.”
As I contended at the time, the truth is that Cohen was probably not guilty of the campaign-finance crimes to which he pled guilty. He pled guilty because he was trying (unsuccessfully, as it turned out) to persuade SDNY prosecutors to cut him a cooperation deal that might keep him out of prison, and he knew they were trying to make a case against Trump. It was a no-cost strategy because the sentencing guidelines on the other fraud counts to which he pled guilty were sufficiently high that adding on a couple of comparatively minor campaign-finance counts didn’t make any difference.
Legally, the campaign-finance case against Trump was even more dubious than the one against Cohen. As the candidate, Trump would not have been restricted by the donation limits that contributors like Cohen faced — although he would have been bound by reporting requirements if the reimbursement, with private (non-campaign) funds, of a loan to close a nondisclosure agreement were deemed an in-kind campaign contribution.
And here we come to Bragg’s incoherence. He is said to be miffed because he believes Trump beat Hillary Clinton by such a narrow margin that the failure to disclose the indecorous hush-money arrangement put Trump over the top. This aligns perfectly with the Bolshevik Left’s continuing inability to accept that Trump was legitimately elected president (even as it seethes over Trump’s similar inability to concede Biden’s win). But the premise is false.
Let’s say Trump — despite having law on his side, and having the same incentive to conceal his indiscretions that led him to orchestrate a hush-money deal in the first place — said to his underlings, “You know what? I really think this business with Stormy was akin to a campaign donation. We should disclose it.” (Yeah, I know, I know . . . but just go with me on this for a sec.) In that impossible-to-take-seriously hypothetical, when would the disclosure have occurred? Cohen paid Daniels off on October 26, 2016. Even if we ignore the fact that Trump didn’t finish reimbursing Cohen until December 5, 2017, the fact would remain: Cohen’s hush-money outlay came so late in the campaign that it would not have been reported to the FEC until months after the November 8, 2016, election.
That is to say, we are dealing with a transaction that is almost certainly not an in-kind campaign contribution and almost certainly did not need to be disclosed at all, and the non-disclosure of which made utterly no difference to the 2016 election. Clearly, that is why the federal authorities, who have jurisdiction over the federal laws pertaining to elections for federal office such as the presidency, did not file charges.
According to Dubeck, Bragg is responsible for enforcing the laws of the state of New York for the protection of the people of New York County. Well, in New York, Clinton beat Trump by 22 points. She won by about 1.7 million votes statewide, which includes a whopping 515,000-vote spread in Manhattan, which she took by a nine-to-one margin. In Bragg’s jurisdiction, Cohen could have disclosed the hush-money payment on page one of the New York Times five minutes after he’d made it, and it wouldn’t have changed the outcome of the election one bit.
You know what’s also up by 22 points in New York? The crime rate. Perhaps the Manhattan district attorney could try focusing more on the real robberies of New Yorkers, stop agitating over the imaginary theft of an election, and leave federal-law enforcement to the feds.