This appears to be about as execrable an exercise of prosecutorial discretion as one can fathom.
This appears to be about as execrable an exercise of prosecutorial discretion as one can fathom.
A nd they say Trump is the norm-breaker.
Alvin Bragg, the elected progressive Democrat who ran for Manhattan district attorney as the candidate most likely to wield his power against Donald Trump, crossed the Rubicon on Thursday. His subordinate prosecutors presented and convinced a grand jury to vote for an indictment that will make Trump the first former president to be charged with a crime in American history.
If reports are to be believed, it is not merely an unworthy exercise of prosecutorial discretion. It is one that will threaten the legitimacy of the justice system — on the public acceptance of which the rule of law hinges.
The New York Times, like other media-Democrat-complex organs that have excellent sources in Bragg’s office, reports that the Trump indictment centers on the payment of hush money to a porn star — specifically, the manner in which the payment was accounted for, which Bragg alleges constituted a falsification of business records.
Even if that were all Bragg had done, it would be a disgrace — not because records falsification is not a crime (it is), but because Bragg would not have brought it against any defendant not named Donald Trump.
Bragg is an unabashed progressive prosecutor whose overarching approach to his job is to minimize resort to criminal prosecution for the resolution of offenses. With defendants who commit serious crimes, Bragg’s practice is to use his charging authority to avoid accusing them of offenses that would require incarceration sentences, and to minimize the number of offenders who are in state custody.
In Trump’s case, though, out of blatant partisanship, Bragg is indicting on a trifling offense that he would never otherwise charge in order to taint the Democrats’ archnemesis as a criminal.
At issue are bookkeeping shenanigans that Bragg would ordinarily not give the time of day. In a nutshell, Trump booked the reimbursement of a loan as if it were a payment of legal fees. Trump’s then-lawyer, Michael Cohen, laid out $130,000 on the eve of the 2016 presidential election, to pay Stormy Daniels — the porn star, whose real name is Stephanie Clifford — to keep quiet about an affair she says she had with Trump 17 years ago. On the books of the Trump organization, the reimbursement was made to look like ongoing legal fees paid in monthly installments in 2017. So trifling is this that it is not clear New York State suffered any financial harm — we’re talking merely about how an expense was described in the accounting ledgers, not about tax evasion.
But it gets worse. Falsification of financial records is just a misdemeanor in New York, which is why it’s virtually never charged. It has only a two-year statute of limitations, meaning that this one is time-barred. To inflate the misdemeanor into a felony, with a five-year statute of limitations that might — might barely — make the indictment timely, Bragg would have to show that Trump falsified his records in order to conceal his commission of another crime. That is, there would have to be some other crime, Trump would have to have known that, and he would have to have acted with the intent to conceal that crime.
Again, if the reporting is accurate — and we won’t know this for sure until the indictment is unsealed — Bragg is arguing that the crime Trump concealed was a failure to disclose an in-kind campaign contribution under the campaign-finance laws.
It would be hard to quantify how outrageous that allegation would be. Campaign-finance violations are federal. When the New York penal law refers to concealing “another crime,” it is plainly talking about another New York state crime. The Manhattan district attorney has no jurisdiction to enforce federal campaign-finance statutes. Moreover, the Department of Justice and the Federal Election Commission — the federal agencies that do have jurisdiction in this area — looked at the Stormy Daniels hush-money arrangement and opted not to proceed against Trump.
That is because, as a matter of law, it is highly unlikely that the payment — for which Cohen and Trump used their own personal funds, not campaign funds — was an in-kind campaign contribution. Moreover, campaign finance is an abstruse area of the law, and even enforcers disagree about what constitutes an in-kind contribution. If those expert in the law disagree, there is no way that Trump could have known it was a crime — as I just said, it probably wasn’t. But for Bragg to prove his felony charge, Trump would not only have to have known it; he would’ve consciously had to have been trying to hide his commission of that crime by falsifying his records.
There is no reason to believe Trump was intentionally trying to conceal a campaign-finance crime. There is, however, immense reason to believe that his actual motive was to avoid humiliation if his wife and family learned that he’d paid for a porn star’s silence about a fling. Falsifying records to avoid personal embarrassment is no doubt disreputable politically and morally; but legally, it is not the concealment of a crime.
And there’s still more. Even if Bragg were right that the payment was an in-kind contribution, it happened so late in the campaign — a few days before the election — that Trump would not have been required to disclose it until after the election. That is, the hush-money payment cannot conceivably have made a difference in the outcome of the election — particularly in Manhattan, Bragg’s limited area of jurisdiction, where Hillary Clinton beat Trump by over half a million votes.
We have to withhold final judgment until we’ve seen the indictment, which may not happen until Trump is arraigned, probably next week. But this appears to be about as execrable an exercise of prosecutorial discretion as one can fathom. Trump may even be the one-in-a-million defendant whose claim of invidious, selective prosecution has a shot of prevailing in court.
It hasn’t been Trump’s MAGA base alone that is offended by Bragg’s prosecution. The DA’s detractors include anti-Trump Republicans — some of whom are offended by the blatant partisanship, and some of whom assume Democrats are trying to stoke such GOP outrage that Trump rides it to victory in the Republican primary and then is thrashed by Democrats in the 2024 election. In addition, Bragg faces dissent from many Democrats, who regard his case as balderdash that will make Trump stronger, in part by discrediting more substantial criminal investigations of Trump as if they were part of an overarching partisan witch hunt — i.e., exactly what Trump says they are.
Of course, the political calculations are not the half of it. A democratic republic needs the rule of law in order to survive. The rule of law hinges on the public’s acceptance of the justice system’s outcomes as legitimate. If the American people become convinced that the justice system is a rigged partisan game in which progressive Democrats exploit their control of law-enforcement processes as a weapon against their enemies — even as progressive prosecutors refuse to enforce the laws against actual criminals who prey on society — then the rule of law is dead.
If that happens, then we’re left with the law of the jungle. A two-tiered justice system is no justice at all.
No one, including a former president and current presidential candidate, is above the law. But no one is below the law either. If a former president is going to be prosecuted, it should only be based on a criminal offense that passes the eye test: a very serious crime that any other American would be indicted for, and that is based on convincing evidence. Maybe a crime arising out of the Capitol riot, the attempted coup relating to the 2020 election, or the irresponsible retention of government intelligence at Mar-a-Lago (and the obstruction of the resulting grand-jury investigation) rise to that level. The Stormy Daniels caper does not.
Alvin Bragg is playing with fire.